The FOIA “Exclusions” Statute: The Government’s License to Lie

Vol. 30 No. 2

By

Christine N. Walz and Charles D. Tobin are attorneys at Holland & Knight LLP in Washington, D.C.

Freedom of Information Act (FOIA) requesters and their counsel know what those black boxes mean. The boxes that checker government documents provide notice that a FOIA officer has decided that the redacted material falls under one of the exemptions of 5 U.S.C. § 552(b). Along with the checkerboard documents, the government provides the requester with a specific list of the exemptions tied to each item of information withheld.1 Without that notice, the requester would be completely in the dark and unable to assess his rights to challenge the exemption claims.

The notice-and-challenge regime has been built into FOIA litigation over the years. Courts routinely require agencies to submit a Vaughn index,2 in which the government describes the withheld documents or deletions, states the particular applicable FOIA exemption, and explains why the exemption applies.3 Over the years, summary judgment proceedings, with Vaughn indexes as the evidentiary basis, have become the principal procedure for resolving FOIA cases.4

But what would most FOIA requesters think—indeed, what would experienced counsel reading this article believe—when the government answers a FOIA letter with, “There are no records responsive to your request”? The average person would understand that no records means just what it says—no records. The seasoned litigator, steeped in discovery procedure, similarly would believe that the FOIA officer, after fulfilling his obligations to conduct a comprehensive search, has determined that the government possesses no information—not even information falling under the FOIA exemptions—that would come within the ambit of the request.

Buried in the FOIA statutes, however, is an obscure provision that makes a “we have no records” response entirely permissible, even when that response is totally false. The provision, 5 U.S.C. § 552(c), describes the “exclusions” to the FOIA, as distinct from the familiar concept of “exemptions” governed by § 552(b). This Reagan-era addition to the FOIA, on its face, provides the government with a license to lie. The exclusions were intended to be narrow, yet the precise parameters of the exclusions remain undefined.

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