Reference
The Nine FOIA Exemptions in Plain English
Nine exemptions exist. As an investigator you will meet two of them constantly, three occasionally, and the rest almost never.
| Covers | How often you meet it | |
|---|---|---|
| (b)(1) | Classified national security | Rarely |
| (b)(2) | Internal personnel rules | Occasionally |
| (b)(3) | Withheld by another statute | Occasionally |
| (b)(4) | Trade secrets, confidential commercial | Occasionally |
| (b)(5) | Internal deliberation, privilege | Often |
| (b)(6) | Personal privacy | Constantly |
| (b)(7) | Law enforcement records | Constantly |
| (b)(8) | Financial institution examinations | Rarely |
| (b)(9) | Oil and gas well data | Almost never |
The two that matter
(b)(6) — personal privacy
Protects personnel, medical and “similar files” where disclosure would be a clearly unwarranted invasion of privacy.
That phrase is the whole fight. It is a balancing test: the individual’s privacy interest against the public interest in knowing what the government is up to. It is not a blanket rule that names get removed.
What (b)(6) does not protect: the identity of senior public officials acting in their official capacity, information the person has already made public, or facts about how the agency itself behaved.
(b)(7) — law enforcement
Six sub-parts, and agencies routinely cite the whole exemption when only one applies. Make them specify which.
- (7)(A) would interfere with enforcement proceedings — this one expires when the case closes. Ask again later.
- (7)(B) would deprive someone of a fair trial
- (7)(C) unwarranted invasion of personal privacy — a lower bar for the agency than (b)(6), which is why they prefer it
- (7)(D) would identify a confidential source
- (7)(E) would disclose investigative techniques
- (7)(F) could endanger someone’s life
Make them cite the sub-part
“Withheld under (b)(7)” is not a valid response. There are six sub-parts with different tests. Write back and ask which one, and on what basis.
A surprising number of blanket claims evaporate when someone has to pick a sub-part in writing.
Demand segregation
The statute requires release of any reasonably segregable non-exempt portion. An exempt sentence does not exempt the page, and an exempt page does not exempt the file.
If you got nothing at all, that is almost always wrong.
Argue the public interest under (b)(6)
The balance weighs privacy against public understanding of government operations. Frame your interest in those terms where it honestly is — how the agency handled something, whether a rule was followed, what a public employee did on public time.
Do not dress up a purely private interest as a public one. It is transparent and it costs you credibility on appeal.
Wait out (b)(7)(A)
Interference with enforcement proceedings is temporary by definition. When the case closes, that basis is gone.
Diary it and re-request. A refusal in March is often a release in November.
Watch for (b)(5) overreach
The deliberative process privilege covers pre-decisional opinion, not facts, and not the final decision. Purely factual material inside a deliberative document is generally segregable and releasable.
Agencies over-claim this one more than any other.
State laws are not the same
These nine are federal. Every state has its own exemption list, and some are far narrower — Florida’s Sunshine Law being the obvious example. Do not cite federal exemptions at a town clerk, and do not accept a federal exemption cited by one.
The full treatment
The FOIA Advantage
The book covers the exemptions in depth, with real requests that were refused, what was argued back, and what was released afterwards — plus a guide to public records law in every state and templates to work from. Free on Kindle.
See the book