Section 12 of the OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, amended Section 552(b) of the Freedom of Information Act (FOIA), which contains the requirement that agencies provide FOIA requesters with any reasonably segregable, non-exempt information contained in documents that are responsive to FOIA requests. Since the 1996 amendments to the FOIA, agencies have been required to indicate the amount of information deleted on the released portion of the record, unless doing so would harm an interest protected by the exemption being asserted. See Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, § 4, 110 Stat. 3048-49 (concluding sentences); see also FOIA Update, Vol. XVIII, No. 1, at 6 ("Amendment Implementation Questions"); FOIA Update, Vol. XVIII, No. 2, at 2 ("FOIA Counselor: Questions & Answers"). Moreover, the FOIA provides that if technically feasible, the amount of the withheld information should be indicated at the place in the record where the deletion is made.
The OPEN Government Act added one additional requirement to this provision regarding the duty to segregate documents for release. Specifically, Section 12 of the OPEN Government Act provides that when marking documents to indicate the amount of information deleted, and the location of that deletion, agencies should also indicate the exemption being asserted. This straightforward requirement codifies what has been an existing practice for many agencies and follows the approach long recommended by the Office of Information and Privacy (OIP).
Section (b) of the FOIA, which contains the FOIA’s nine statutory exemptions, also directs agencies to release to FOIA requesters any reasonably segregable, non-exempt information that is contained in those records. See 5 U.S.C. § 552(b) (sentence immediately following exemptions). As amended by the OPEN Government Act, the provision now reads:
As a result of the amendment, the segregation provision of the FOIA provides direction to agencies not only on what to release, but on how to mark a document for release in order to facilitate a better understanding of the agency's action.
Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection. The amount of information deleted, and the exemption under which the deletion is made, shall be indicated on the released portion of the record unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made. If technically feasible, the amount of the information deleted, and the exemption under which the deletion is made, shall be indicated at the place in the record where such deletion is made. 5 U.S.C. § 552(b) (amended language in italics).
The requirement to provide FOIA requesters with any reasonably segregable, non-exempt portions of the records that are responsive to FOIA requests is a fundamental tenant of the Act. Indeed, courts have long focused on this requirement. See, e.g., Department of Justice Freedom of Information Act Guide (Mar. 2007), at 113-19 ("Reasonably Segregable" Obligation) (collecting cases); id. at 1005-10 ("Reasonably Segregable" Requirements) (likewise collecting cases). Thus, it is important that agencies remain mindful of the need to reasonably segregate and release any non-exempt information whenever they are processing a FOIA request. See, e.g., Stolt-Neilsen Transp. Group Ltd. v. United States, 534 F.3d 728, 734 (D.C. Cir. 2008) (concluding that the district court has an affirmative duty to consider reasonable segregability even if the requester never raised the issue).
The remaining elements of the segregation provision, including the new statutory amendment, address how documents should be marked once it is determined that they contain reasonably segregable, non-exempt information. First, the amount of information that is being withheld, and now also the exemption under which the withholding is being made, should be indicated on the released portion of the record itself. The FOIA has long contained an exception to this requirement for those instances where revealing the amount and location of the information being redacted would harm an interest protected by the exemption being asserted. This exception now also includes the situation where revealing the exemption itself on the face of the released-in-part document would harm an interest protected by the exemption. In such rare circumstances, the agency need not mark the released portion of the document in such a way that by doing so would cause harm to an interest protected by the exemption being asserted.
For example, if a portion of an otherwise releaseable document is being protected under Exemption 7(A) to prevent interference with an on-going law enforcement investigation, and if the agency determines that indicating the amount of information being deleted under that exemption, or now, that marking Exemption 7(A) on that portion of the document will, in context with the released portions of the record, interfere with the on-going investigation, then the agency need not include those markings on that particular record. Such situations will be rare, however, and any agency processing a request which raises questions as to whether the FOIA’s marking provisions apply to a given document are encouraged to contact OIP.
In the vast majority of cases, the exception to the marking requirement is not applicable. As a result, the three marking requirements will ordinarily apply. Those requirements direct agencies to indicate the amount of information being withheld on the released portion of the record itself. As a result of the OPEN Government Act, agencies must now also mark the document to show the exemption under which the deletion is being made. The third marking requirement provides that agencies must, if technically feasible, place that indication as to the amount of information being deleted and the exemption being asserted, at the place in the record where the deletion occurs. Thus, a FOIA requester reviewing documents released in part would be able to see directly, in the context of the released portions of the document, how much material has been withheld, the exemption used to make the withholding, and where within the document the deletion occurred.
For most records the marking requirements will be readily met by "blacking out" or otherwise physically marking through the protected information in the record and then inserting a notation regarding the exemption being asserted for that particular deletion. The volume of the withheld material will be apparent from the "blacked out" portions, as will the location within the document where the excision occurs.
In light of this, it is important that agencies do not “white out” information when withholding it under the FOIA, as that can make it difficult for a requester to identify the amount of withheld material and its location within a document. Instead, agencies must mark documents in a way that makes it readily apparent to the requester where within a document information has been withheld. This can be accomplished by darkening, or “blacking out” the withheld portions of the documents, or by inserting brackets around them, or by outlining or “boxing” them, or any other method that ensures that a requester can easily discern where the redactions have been made. Further, each page containing redactions should be marked to show the amount of information being withheld and the exemption being asserted and, if technically feasible, those markings should be placed at the point in the record where the deletion occurs.
The following examples demonstrate several possible approaches to marking documents so that the newly added requirement to specify the exemption being asserted is met. One of the clearest ways to do that is to insert a notation as to the exemption being asserted within the space that remains after the information has been excised.
When a paragraph or group of paragraphs are withheld on a page, the exemption(s) used to protect the information in the paragraphs may similarly be noted within the marked-out space.
Yet another approach is to use an arrow to connect a particular redaction to the annotation indicating the applicable exemption(s), or to include the exemption notation at the end of the line where the excision occurs.
These examples are illustrative and are not intended to be exclusive. Agencies will likely employ a variety of techniques to mark documents depending on the nature of the documents at issue and the redaction capabilities of the agency. The key requirement for agencies when marking documents that will be released in part is to comply with the overall purpose of the segregation provision which is to readily reveal to a requester the amount of information being withheld in a document, its location within that document, and the exemption being asserted for that redaction.
Agencies have long been required to segregate documents for release and to mark those documents to indicate the amount of information deleted and, ordinarily, the location of the deletion. The new statutory provisions of the OPEN Government Act simply add the next logical step to that requirement, mandating that the exemption being asserted in connection with a given deletion be indicated directly at the place of the deletion. The purpose of the amendment is to make it plain on the face of any record disclosed in part the agency's statutory basis for each discrete withholding contained within the document. (posted 10/23/2008)
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