The Freedom of Information Act (FOIA) gives public access to almost any federal government record that FOIA itself does not specifically exempt from disclosure[i].  The central purpose of FOIA is to ensure that the government’s activities are open to the sharp eye of public scrutiny.  Hence, the basic purpose of FOIA is to open agency action to the light of public scrutiny.  FOIA confers jurisdiction on the federal district courts to order the release of improperly withheld or redacted information.

Generally, FOIA is broadly conceived and its basic policy is in favor of disclosure.  In 5 U.S.C.S. § 552(b), Congress carefully integrated nine exemptions from the otherwise mandatory disclosure requirements given under 5 U.S.C.S. § 552(a), for protecting specified confidentiality and privacy interests.  Therefore, unless requested material falls within one of the nine statutory exemptions, FOIA requires that records and material in the possession of federal agencies be made available on demand to any member of the general public[ii].

The first exemption to FOIA allows an agency to refuse to disclose matters that are specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy.  Under Executive Order 12,958, an agency may not authorize information to be kept secret unless the disclosure of the information reasonably could be expected to result in damage to the national security.  Therefore, when once it is established that particular records are specifically authorized to be kept secret in the interest of national defense or foreign policy and that those records are classified as expected to cause damage to the national security pursuant to the provisions of an appropriate executive order, then such records are exempted from the mandatory disclosure provisions of FOIA[iii].

The standard adopted by the court for determining whether a document is properly classified and protected by the first exemption under FOIA, is:

• whether the proper classification procedures have been followed; and
• whether by sufficient description the contested document logically falls into the category of the exemption claimed on the basis of national security[iv].

In James Madison Project v. CIA, 605 F. Supp. 2d 99 (D.D.C. 2009), the court observed that “under Exemption 1 of the Freedom of Information Act, a court is to accord substantial weight to an agency’s affidavit concerning the details of the classified status of the disputed record.  This is especially true in a national security case, in which the agency possesses necessary expertise to assess the risk of disclosure, and judges lack the expertise necessary to second-guess agency opinions.  If the court finds that the agency’s affidavits are insufficiently detailed, it should deny summary judgment in Exemption 1 cases on procedural grounds.”

However, a court need not go further with the document classification examination if the detailed affidavits submitted by the agency show:

• that the document classification have been conscientiously re-examined by a classification officer and remains classified; and
• that there is no showing of any lack of good faith on the part of the government.

In cases where the agency’s affidavits are insufficient to make the de novo determination, the court must conduct an in camera review.  In Times Newspapers of Great Britain, Inc. v. Central Intelligence Agency, 539 F. Supp. 678 (D.N.Y. 1982), the court observed that “the government bears the burden of establishing that the national security exemption of the Freedom of Information Act is proper, and a court is authorized to examine the documents in camera if the government’s affidavits are inadequate to sustain the burden.  The law in the Second Circuit provides for a restrained exercise of discretion with respect to in camera inspection.  The agency’s action in withholding material will be upheld if its affidavits: (1) describe with reasonable specificity the nature of the documents at issue and the claimed justification for nondisclosure; and (2) indicate that the requested material logically falls within the claimed exemption.  In other words, the court is to defer to the agency’s decision where the agency has been reasonably specific in explaining why the documents should not be disclosed, and where, under all the circumstances, the agency’s action appears to make sense.”

However, a court while determining an agency’s prayer of an exemption must consider that in enacting FOIA, Congress aimed to strike a balance between the right of the public to know what their government is up to and the often compelling interest that the government maintains in keeping certain information private, whether to protect particular individuals or the national interest as a whole.

[i] James Madison Project v. CIA, 605 F. Supp. 2d 99 (D.D.C. 2009).

[ii] Aspin v. United States Dep’t of Defense, 453 F. Supp. 520 (D. Wis. 1978).

[iii] Id.

[iv] Baez v. NSA, 1978 U.S. Dist. LEXIS 18507 (D.D.C. 1978).