The Freedom of Information Act (FOIA) provides public access to federal agency records. The FOIA presumes records should be disclosed, and it's the government's job to show why a record should not be released. However, the FOIA also contains disclosure exemptions and exclusions, so some records are off limits. Two key exemptions apply to personal privacy interests.

There can be differences in the exact FOIA request process, and any given agency can provide details for the steps to take for your request. If your request is denied, do expect an explanation stating the reasons for it. An appeal at the agency level typically comes before seeking help in court.

Watch for and understand something about Exemption 6 and Exemption 7(C) in case your FOIA request is denied.

Personnel, Medical and Similar Files (Exemption 6)

Exemption 6 allows the government to withhold all information about individuals in "personnel and medical files and similar files" when the disclosure would be a clear and unwarranted invasion of personal privacy. If you make an FOIA request for records solely about yourself, this exemption doesn't apply.

Information needs to be in a medical or personnel file or similar file. Medical and personnel files are easy to identify. The United States Supreme Court defines "similar files" as all information that "applies to a particular individual."

Once this threshold is met, the next question is whether the disclosure would constitute a clearly unwarranted invasion of personal privacy. If there is a protectable privacy interest, it is weighed against the interest in public disclosure. If there is no public interest or if the privacy interest outweighs the public interest, the information should be withheld. If the opposite is the case, disclosure is made.

Law Enforcement Records (Exemption 7(C))

Exemption 7(C) protects personal information in law enforcement records. This exemption is the law enforcement counterpart to Exemption 6. Exemption 7(C) protects law enforcement information when disclosure would amount to an unwarranted breach of personal privacy.

There is a long-standing and traditional respect for a strong privacy interest in law enforcement records. Using this exemption to protect the identities of third parties is generally correct. The burden of proof to show that denial of an FOIA request is proper is lower under Exemption 7(C) than under Exemption 6.

Guidance for Applying Exemptions

General guidance for applying these exemptions includes:

  • Substantial privacy interests can exist in personal information found in sources such as "rap sheets," even though the sources may have been public at some time
  • The identity of an FOIA requester doesn't matter when processing a request
  • The purpose behind an FOIA request doesn't matter when deciding disclosure issues
  • The scope of the public interest under the FOIA's privacy exemptions is to shed light on an agency's performance
  • Agencies may engage in "categorical balancing" in favor of nondisclosure

Understanding these common exemptions can help you manage your FOIA requests and the results you receive.

Questions for Your Attorney

  • Do I have to state a reason for my FOIA request?
  • Do I have to be notified when there is an FOIA request for records containing my personal information?
  • When do I have an expectation of privacy in agency records?