Records Governed by the Federal FOIA and State Open Records Laws (and Exemptions)
Federal FOIA refers to the federal Freedom of Information Act. The federal FOIA governs access to records in the possession of federal agencies such as NIH, the Department of Agriculture, the Department of Veterans Affairs, etc.
State open records laws are state statutes that govern access to records in the possession of state and local governments and other state public bodies, such as public universities. State open records laws vary by state and have various names including: Sunshine Laws, Freedom of Information Laws, Public Records Laws, and Open Records laws. To avoid confusion, we refer to all of these laws as open records laws.
Federal FOIA Exemptions
The federal FOIA contains nine exemptions designed to protect sensitive information from disclosure. Exemptions 4, 6, and 7 are the most commonly used exemptions to protect research information.
Protects records that are specifically authorized under criteria established by an Executive Order to be kept secret in interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive Order.
Protects records related solely to the internal personnel rules and practices of the agency.
Protects records specifically exempted from disclosure by statute, provided that such statue: a. Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issues; or b. Establishes particular criteria for withholding or refers to particular types of matters to be withheld.
Protects confidential business information from disclosure. This includes trade secrets and commercial or financial information that are confidential. When submitting confidential information to a federal agency, follow the established procedures to ensure the confidential information is clearly identified.
A trade secret is information relating to the production process, including production data, formulas, and processes, and quality control tests and data, as well as research methodology and data generated in the development of the production process. Such information must be (1) commercially valuable, (2) used in one’s business, and (3) maintained in secrecy.
Commercial or financial information may be deemed confidential if review establishes that the applicant faces active competition in the area to which the information relates and that substantial competitive harm would result from disclosure. Information such as safety data, efficacy or potency data, and environmental data may be such confidential information.
Protects interagency or intra-agency memoranda or letters that would not be available by law to a private party in litigation with the agency.
Protects information involving matters of personal privacy. This exemption permits the government to withhold all information about individuals in "personnel and medical files and similar files" when the disclosure of such information "would constitute a clearly unwarranted invasion of personal privacy." Information such as home addresses and social security numbers may be redacted under this exemption.
This exemption protects records compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records:
a. Could reasonably be expected to interfere with enforcement proceedings
b. Would deprive a person of a right to a fair trial or an impartial adjudication
c. Could reasonably be expected to constitute an unwarranted invasion of personal privacy
d. Could reasonably be expected to disclose the identity of a confidential source, including a state, local, or foreign agency or authority or any private institution which furnished records on a confidential basis
e. Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law
f. Could reasonably be expected to endanger the life or physical safety of any individual.
Protects records that are contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions.
Protects geological and geophysical information and data, including maps, concerning wells.