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How Public Agencies Deny FOIA Requests: Common Tactics Explained
Public agencies may use a variety of tactics and justifications to deny or delay access to information requested under the Freedom of Information Act (FOIA) or similar state transparency laws. These denials can range from legitimate legal grounds to more dubious practices intended to avoid disclosure. Here is a comprehensive list of ways that public agencies may deny access to information when presented with a FOIA request:
Common Ways Public Agencies Deny Access to Information
- Invoking Specific FOIA Exemptions:
- Agencies can deny requests by citing one or more of the nine federal FOIA exemptions (or equivalent state exemptions), which include:
- National Security: Information classified to protect national security.
- Internal Agency Rules and Practices: Information related solely to internal personnel rules and practices.
- Statutory Exemptions: Information exempted by another federal statute.
- Trade Secrets and Commercial/Financial Information: Confidential business information.
- Agency Memoranda: Inter-agency or intra-agency memorandums that are not available by law.
- Personal Privacy: Information that would invade personal privacy.
- Law Enforcement Records: Information that could reasonably be expected to interfere with enforcement proceedings.
- Financial Institutions: Information related to the regulation of financial institutions.
- Oil Well Data: Geological information and data, including maps, concerning wells.
- Agencies can deny requests by citing one or more of the nine federal FOIA exemptions (or equivalent state exemptions), which include:
- Claiming “No Responsive Records”:
- Agencies may deny requests by claiming that no records exist that are responsive to the request, even when such records may exist. This can occur due to poor records management or intentionally limited searches.
- Vagueness or Overbreadth:
- Requests that are deemed “too vague” or “overly broad” may be denied on the grounds that they do not reasonably describe the records sought. Agencies may require requesters to narrow their requests, which can lead to delays or partial disclosures.
- Claiming Confidentiality or Privilege:
- Agencies may claim that the requested information is protected under attorney-client privilege, attorney work-product doctrine, or other privileges that exempt disclosure.
- Invoking Ongoing Investigation or Litigation Exemptions:
- Information can be withheld if it pertains to an ongoing investigation or litigation, on the grounds that its release could interfere with the process or reveal sensitive information.
- Excessive Redactions:
- Agencies might provide documents with large portions redacted, citing privacy, national security, or other exemptions. Excessive redactions can render the disclosed documents useless.
- Charging High Fees:
- Some agencies impose high fees for searching, reviewing, and duplicating records, which can serve as a barrier to access. These fees can be particularly burdensome for journalists, nonprofits, or private citizens.
- Delaying Responses:
- Agencies may use tactics like unnecessary delays or claiming “unusual circumstances” to extend response times well beyond the statutory limits, often without providing a legitimate reason for the delay.
- Issuing “Glomar Responses”:
- A “Glomar Response” is when an agency refuses to confirm or deny the existence of records on the grounds that acknowledging their existence or non-existence would itself reveal sensitive information.
- Claiming Security Concerns:
- Agencies may claim that accessing records via certain platforms (e.g., Google Drive) poses security risks, which is sometimes used to limit access to information or require specific formats that are less accessible.
- Using “Pre-Decisional” or “Deliberative Process” Exemptions:
- The “deliberative process privilege” is often cited to withhold documents that reflect advisory opinions, recommendations, or discussions that are part of the decision-making process.
- Citing Privacy Concerns:
- Requests involving third-party information may be denied due to privacy concerns, particularly when sensitive personal information is involved. This can be misused to block access to records that could expose wrongdoing.
- Referral and Consultation Processes:
- Agencies may refer parts of a request to other agencies or consult with other agencies before releasing information. This process can create additional delays or partial denials.
- Arguing Record Creation Burden:
- If fulfilling a request requires creating a new record (as opposed to providing an existing one), agencies may deny the request, arguing that FOIA does not require them to create new records.
- Declaring Records as “Non-Agency Records”:
- Agencies may claim that certain documents are not “agency records” if they are held by a contractor, personal devices, or private emails, even when they pertain to public business.
- Denial Based on Improper Requests:
- Requests that are not submitted according to the agency’s specific requirements (e.g., incorrect forms, missing information) may be denied without further consideration.
- Claiming Information is Already Publicly Available:
- Agencies may deny a request by asserting that the requested information is already publicly available, even when the information is difficult to find or incomplete.
- Classifying Information Retroactively:
- Occasionally, information that was previously unclassified may be retroactively classified to deny a FOIA request. This practice can prevent the disclosure of sensitive information that was unintentionally released.
- Issuing Partial Releases with Key Information Withheld:
- Sometimes, agencies will release only parts of a document or report while withholding key sections under the guise of exemptions. This tactic can obscure the full context or significance of the information.
- Appeals Process Challenges:
- When a request is denied, the appeals process can be lengthy, opaque, and costly, discouraging requesters from pursuing their case further. Agencies may also delay providing appeal decisions to maintain secrecy.
- “Controlled Unclassified Information” (CUI) Labeling:
- Some agencies may label certain information as “Controlled Unclassified Information” (CUI) to justify limited distribution or access, even if it doesn’t meet FOIA exemption criteria.
- Misclassification of Records:
- Misclassifying records under the wrong FOIA exemption or privacy law can result in wrongful denials. This is sometimes done intentionally to withhold embarrassing or politically sensitive information.
- “National Security” as a Catch-All Excuse:
- The “national security” exemption can be used as a broad excuse to deny a wide range of records, even when the connection to national security is tenuous or questionable.
- Use of “Draft” Status:
- Documents can be labeled as “drafts” to prevent their release, even if they have been circulated or used in decision-making processes.
- Non-Responsive or Vague Communications:
- Agencies may provide vague or non-responsive answers to requests for information or clarification, leading to additional delays and frustration for the requester.
- Invoking Specific FOIA Exemptions:
Conclusion
Public agencies have numerous methods to deny or delay access to information requested under FOIA. While some of these denials are legitimate and based on law, others may exploit legal loopholes or procedural requirements to avoid transparency and accountability. Understanding these tactics can help requesters craft more precise FOIA requests, appeal denials effectively, and advocate for stronger open records laws.
