EFFECTIVE FOIA
REQUESTING FOR
EVERYONE

A National Security
Archive Guide

© 2008 by the National Security Archive.
All rights reserved. No part of this guide may be reproduced in any form or by
any means without the prior written permission of the publisher.
Funding for this publication provided by:
The Institute for European, Russian, and Eurasian Studies (IERES)
through a grant from
The Andrew W. Mellon Foundation
The National Security Archive
Gelman Library, Suite 701
2130 H Street NW
Washington, DC 20037
(202) 994-7000
E-mail: nsarchiv@gwu.edu
Web site: http://www.nsarchive.org

Table of Contents
Preface

v

About This Guide

vii

Chapter One

Introduction: What is the FOIA?

1

Chapter Two

First Steps: Getting Started with the FOIA

5

Chapter Three

Pen to Paper: Writing a FOIA Request

11

Chapter Four

Another Way: Mandatory Declassification Review

23

Chapter Five

A Second Look: Appealing Agency Denials

29

Chapter Six

Going to Court: Litigating Your FOIA Request

52

Notes
Appendices

54
Glossary of Key Terms and Acronyms

55

Federal Agencies Subject to the FOIA

61

Sample Request Letters

65

How to Read Agency Documents

67

Additional Resources

75

The Freedom of Information Act

79

Executive Order 12958 (as amended)

93

List of Figures
Figure 1.1

FOIA Quick Reference

1

Figure 1.2

Follow a Request through the FOIA Process

3

Figure 2.1

Locating Agency FOIA Web Sites

5

Figure 2.2

Publication of Required Records

6

Figure 2.3

Drafting a FOIA Request Subject

7

Figure 3.1

FOIA Fee Categories

12

Figure 3.2

Grounds for Expedited Processing

15

Figure 3.3

How to Find Agency FOIA Regulations

16

Figure 3.4

Understanding FOIA Request Processing at the Agency

18

Figure 3.5

Summary of the FOIA Exemptions

19

Figure 4.1

Comparison of FOIA and MDR

24

Figure 4.2

FOIA versus MDR

25

Figure 4.3

MDR Deadlines

27

Figure 5.1

Adverse Determinations That Can Be Appealed

29

Figure 5.2

Locating and Reading a FOIA Court Decision

33

Figure 5.3

Classification Categories

39

Figure 5.4

Locating an Exemption 3 Statute in the U.S. Code

41

Figure 6.1

Additional Resources for FOIA Litigation

52

Preface
The Freedom of Information Act (FOIA) is one of the glories of American democracy, yet—like
democracy—making the law actually work requires real effort both inside and outside of government.
Based on more than two decades of FOIA experience here at the National Security Archive, we offer this
guide to help make the law work for you.
The concept of “publicity for official documents” originated in late-eighteenth-century Europe, when a
new parliamentary majority in Sweden and Finland opened up the secret budgets and trade monopolies
of its predecessors. The idea that government information belonged to the people was
transformational. Today the levels of government transparency across Scandinavia are the greatest in
the world, and more than eighty other countries have enacted FOIA laws, most of them just in the past
few years. Requesters in those countries could no doubt use a guide like this for their own laws.
Congress passed the US Freedom of Information Act in 1966, after a campaign led by newspaper editors
and members of Congress seeking greater accountability for the executive branch. The Watergate
scandal resulted in amendments that significantly strengthened the FOIA, including the requirement of
greater court review of agency decisions.
US government agencies now answer more than four million requests each year, the majority from
veterans, senior citizens, and their families seeking their own records. Most of these requests are
handled fairly quickly by the agencies. More difficult are the approximately one million requests that
require search and review inside government and precision and persistence by the requester. Here is
where our guide should help.
The authors acquired their expertise the hard way, through a half-dozen government-wide audits of
agency performance under the FOIA. Supported by the John S. and James L. Knight Foundation since
2001, these audits have covered all of the more than ninety federal agencies with formal FOIA
operations, plus more than a dozen major agency components that handle large numbers of requests
(see http://www.gwu.edu/~nsarchiv/nsa/foia/audits.htm). The Archive’s own experience with
thousands of FOIA and MDR requests also provides a wealth of data and fundamental lessons that you
will find in these pages.
There may come a time when the World Wide Web makes it possible for government to put almost all
of its workings online, and FOIA requests will be the exception rather than the rule for acquiring
government information. But we are not there yet. Good luck in using this guide, and remember, when
you make the FOIA work for you, you are making democracy work for all of us.
Tom Blanton
Executive Director
National Security Archive

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About This Guide
ACKNOWLEDGMENTS
This guide was written by Kristin Adair and Catherine Nielsen and edited by Meredith Fuchs,
Yvette M. Chin, Malcolm Byrne, and Tom Blanton. We would also like to thank additional
readers and those who provided assistance along the way, including Nicolas Michiels, Amelia
Schmidt, Joyce Battle, Hope M. Harrison, and Steve Paschke. Thanks to Barbara Elias, Michael
Evans, and William Burr for their assistance with preparing the appendices.
Thanks to Hope Harrison and the Institute for European, Russian, and Eurasian Studies (IERES)
at the George Washington University for all of their help in moving this project forward. The
Andrew W. Mellon Foundation provided generous funding to develop this guide.

HOW TO USE THIS GUIDE
Government records are fundamental to understanding official policies and decision-making
processes. They can be vital resources for a journalist following a breaking news story about
government misconduct, a military veteran’s family seeking information about benefits, or a
student writing a history paper. Government documents provide first-hand, real-time accounts
of events as they unfolded, generally without the editorial filter that characterizes secondary
sources like books and news articles.
This guide provides a comprehensive overview for obtaining documents from executive branch
agencies of the federal government. It deals primarily with the Freedom of Information Act
process. But it also briefly treats other means of accessing government records, including
locating publicly available records and using Mandatory Declassification Review (MDR) to obtain
previously classified records.
As you embark on your quest for government records, you must first conduct some preliminary
research and map out a strategy for your journey. After an overview of the FOIA in chapter 1,
chapter 2 of this guide will help you navigate through these initial steps. It will assist you in
determining what records you are looking for, where they might be located, and whether some
of them might be publicly available.
Chapter 3 focuses on the nuts and bolts of drafting and sending your FOIA request. It will guide
you through the key elements of a request letter and what to expect throughout the requesting
process.
Chapter 4 explains the MDR process as an alternative means for obtaining government records
and will help you to determine whether MDR is right for you. This chapter also offers basic
guidance for drafting and filing an MDR request.

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Chapters 5 and 6 focus on challenging an agency’s response to your FOIA or MDR request. In
chapter 5, you will learn about the administrative appeals process, which you can use to
challenge the initial decision on your request at the agency level. You need not read chapter 5 in
its entirety. Rather, you should read the introductory materials outlining the appeals process
and the general arguments to make in your appeal. Then, focus on those arguments that apply
to your specific case, in particular the statutory exemptions claimed by the agency in response
to your request.
Chapter 6 provides a very basic overview of litigating a request under the FOIA and can serve as
a starting point if you decide to sue an agency after completing the administrative appeals
process. Additional resources are provided that will help you if you choose to move forward
with litigation.
Throughout the text of this guide, you will see yellow light bulbs containing “FOIA Tips”—tricks
and tips to help you through the FOIA maze. You also will see blue figures that offer additional
details about some of the key concepts covered in the text. Finally, green “Sample Language”
boxes will provide you with examples to help in drafting your request or appeal. Keep in mind
that some of the sample language may not apply to all requesters, so make sure to read the text
carefully and craft your request or appeal to suit your individual case.
Checklists at the ends of chapters 3 and 5 summarize the request and appeals processes and
help remind you about key items to include in your correspondence with the agency.
The guide also includes appendices of useful resources to consult during the FOIA process.

LEGAL NOTE
None of the information contained in this guide should be considered legal advice, nor is the
National Security Archive available to provide legal advice. Although we have striven to present
accurate and useful information about the Freedom of Information Act in this guide, we
recommend that you consult a lawyer if you need professional advice about your particular
situation or if you intend to file a FOIA lawsuit.

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chapter one

Introduction:
What is the FOIA?
The Freedom of Information Act provides public access to federal government records from executive
branch agencies or entities. (See app. 6 for the full text of the statute.) Any person, including US citizens,
foreign nationals, organizations, associations, and universities, may submit a FOIA request asking for
records held by the government. The FOIA carries a presumption of disclosure, which means an agency
that receives a FOIA request is required to disclose relevant
records unless the records are excluded from disclosure
under one of nine specific FOIA exemptions. This right of
FIGURE 1.1:
FOIA QUICK REFERENCE
access is enforceable in federal court. The burden is on the
government to show why a document cannot be released.
What is the FOIA? A law that allows the
The federal government answers more than four million
FOIA requests each year, the majority from veterans and
senior citizens seeking information about their benefits and
service records, as well as many from journalists,
researchers and historians, businesses, and nonprofit
organizations.
The vast majority of requests that are received and
processed under the FOIA are routine, such as individuals
asking for their own records or for copies of standard
documents that are released regularly. Many other FOIA
requests are denied, however, and move through the
administrative appeals process. Some of these cases are
resolved through litigation in federal court. Despite the
delays and obstacles that FOIA requesters often confront,
particularly when seeking sensitive or high-level
documents, millions of government records that rightfully
belong to the public are released every year.

public to access government records.
Who may file a FOIA request? Anyone.
Where may I send a request? All
federal executive branch agencies
(except the president and some White
House offices).
What may I ask for? Any records the
agency retains (paper, electronic, etc.)
How long does it take? The law requires
agencies to respond within 20 days, but
it often takes months or years.
How much does it cost? It depends on
the request and the requester. Some
requesters are eligible for reduced fees.
May I challenge the agency’s decision?
Yes. You may appeal and/or litigate a
denial.

HISTORY OF THE FOIA
The FOIA was enacted in 1966 after several years of wrangling between Congress and federal
agencies that strongly opposed the proposed legislation. President Johnson signed the bill
grudgingly without a formal ceremony and accompanied it with a signing statement that
actually undercut the thrust of the law.

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In the wake of the Watergate scandal and the ensuing public outrage regarding excessive
government secrecy, Congress sought to amend the FOIA. After negotiations between Congress
and the Ford Administration broke down, Congress passed significant amendments to the FOIA.
President Ford vetoed the amendments, and Congress swiftly voted to override his veto. The
amendments strengthened the FOIA and forced greater agency compliance with a number of
significant new provisions, including narrowed definitions of several exemptions, concrete
deadlines for processing requests, public interest fee waivers, more fair and efficient court
proceedings, and mandatory agency reporting on their compliance with the FOIA.
Some of the most significant recent changes to the FOIA came in 1996, when the Electronic
Freedom of Information Act (E-FOIA) amended the law to allow for greater access to electronic
records. The E-FOIA amendments required agencies to make guidance and certain documents,
including frequently requested records, available online so that members of the public could
access this information without filing a FOIA request.
Major amendments to the FOIA enacted in December 2007 targeted some of the most
persistent procedural problems in the FOIA system, including excessive delays, lack of
responsiveness, and litigation gamesmanship by federal agencies.

POLITICS AND THE FOIA
Although nonpolitical and career staff at federal agencies largely drive the FOIA process, access
to information is not wholly insulated from the ebb and flow of the political climate.
After the end of the Cold War, classification fell dramatically and record numbers of documents
were declassified and released during the 1990s. However, in the late 1990s, and especially
after September 11, 2001, the openness trend was reversed, and the levels of classification and
secrecy rose across the government. When more records are classified or otherwise protected,
there may be more hurdles to obtaining sensitive records under the FOIA.
Moreover, the president and/or the Attorney General typically have set the tone for the conduct
of the FOIA process in each administration. In most administrations, the Attorney General issues
a memorandum to the heads of all federal agencies setting forth general policies with regard to
the FOIA. For example, in 1993 Attorney General Janet Reno announced a new policy directing
agencies to follow a “presumption of disclosure” and to act at their discretion to disclose
records when there would be no harm from doing so. In contrast, in 2001 Attorney General John
Ashcroft reversed the Reno policy and counseled against discretionary disclosures, even when
no potential harm could be identified.
None of these actions changes the letter of the law, because only Congress can amend the FOIA
through legislation. However, the impact of the ebb and flow of secrecy on the attitudes and
actions of government employees who process FOIA requests is an ongoing consideration for
everyone who seeks to access information from the government.

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FIGURE 1.2: FOLLOW A REQUEST THROUGH THE FOIA PROCESS

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chapter two

First Steps:
Getting Started with the FOIA
The most successful Freedom of Information Act requests are focused, well-researched, and clear. This
chapter will discuss research strategies and preliminary steps to filing a FOIA request.

PREPARING TO FILE A FOIA REQUEST
Start Your Research
The FOIA is a tool of last resort; it should be used only to request documents that are not
otherwise publicly available. Before filing a FOIA request, therefore, you should do research to
determine what types of documents you are looking for, which agencies are likely to have the
documents, and what government records on your topic are already in the public domain.
Older documents are more likely to be publicly available, either online, at the National Archives
and Records Administration (NARA), or at the Presidential Libraries. For classified records, many
documents more than twenty-five years old should be available under the automatic
declassification provisions of Executive Order (EO) 12958, as amended (see app. 7).
As you begin, you may want to develop a chronology or list of key events and issues related to
your topic in order to identify likely subjects and/or documents to request. Familiarize yourself
with your topic through research in secondary
sources including books and articles. Agency
FIGURE 2.1:
Web sites are a key tool for conducting
LOCATING AGENCY FOIA WEB SITES
preliminary research before filing a FOIA
There are three ways to locate an agency’s
request.
FOIA Web site:

Search for Public Records
Agencies must make certain records available
to the public automatically, without the need
for a FOIA request. Certain types of general
documents and information about the agency
must be published by each agency in the
Federal Register. You can search the Federal
Register online on the Government Printing
Office’s Web site (http://www.gpoaccess.gov/).

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1. Use the links on the Department of
Justice’s Web site for “Other Agencies’
FOIA Web Sites”:
http://www.usdoj.gov/oip/other_age.htm.
2. All agencies are required to put a link to
their FOIA page on their homepage.
(Usually, it can be located on the bottom
of the page listed as “FOIA” or “Freedom
of Information.”)
3. Do an Internet search using the agency’s
name and “FOIA” as search terms.

Certain categories of records must be published on agency Web sites, generally in “electronic
reading rooms” within the agency’s FOIA Web site (see fig. 2.1). Agency electronic reading
rooms commonly contain significant policy documents as well as records that are requested
frequently (see fig. 2.2). Consult these sources first if you believe the records you are seeking
may fall within one of these categories. You should also search the Internet, press accounts,
agency publications, and other parts of the agency’s public Web site for any relevant materials.
FIGURE 2.2: PUBLICATION OF REQUIRED RECORDS
Federal Register

FOIA Reading Room

Descriptions of the agency’s organizational
structure and how the public may obtain
information, make submissions or requests, or
obtain decisions
Nature of agency functions, including all formal
and informal procedures

Final opinions and orders made in the adjudication
of cases

Rules of procedure, descriptions of agency forms,
and instructions as to the scope and contents of all
papers, reports, or examinations

Administrative staff manuals and instructions to
staff that affect a member of the public

Substantive general rules and general policies and
policy interpretations adopted by the agency

Records that have been or are likely to become
the subject of frequent FOIA requests

Amendments, revisions, or repeals of the above

Index of frequently requested records

Statements of policy and interpretations adopted
by the agency (not published in the Federal
Register)

WHAT RECORDS MAY I REQUEST?
Agency Records
Almost all executive branch agency records are subject to the FOIA. However, records of
Congress and the courts are not subject to the FOIA. Some intelligence operational files held by
agencies have been granted specific exemptions.
The term “agency records” refers to those materials either created or obtained by an agency
that are under the control of the agency at the time a FOIA request is made.1 “Records” include
information in any form or format, including multimedia and all types of electronic records.
While the FOIA allows you to request electronic records, such as e-mails, not all agencies are
able currently to comply with such requests because of the nature of their electronic records
systems.
Agencies are not required to create records to satisfy a request. This means that you cannot ask
the agency to answer a question or generate a list or another document that does not already
exist. However, generating records from an existing database is not considered creating a
record, so you can request information that may be contained in a database.
One specific category of records may be excluded entirely from the FOIA. Operational files are
records of intelligence agencies such as the Central Intelligence Agency, the National Security
Agency, and the Defense Intelligence Agency that contain raw intelligence or information

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related to the collection of intelligence, namely sources and methods. Congress has granted a
limited group of intelligence agencies specific exemptions for their operational files.

Identifying Records to Request
Once you have determined that the information you are looking for is not publicly available, you
should identify the specific documents, types of documents, or subjects of documents you wish
to seek. Here, too, Web sites, books, press accounts, and agency publications are useful
research tools. Previously released documents are another resource that can be used to identify
other specific documents or types of documents (see app. 4).
You can send a FOIA request for a specific document, a series of documents, or documents
related to a general subject (see fig. 2.3). Keep in mind that agencies are required only to search
for existing documents under the FOIA, not create or compile new documents. You cannot ask
an agency to do your research for you.

FIGURE 2.3: DRAFTING A FOIA REQUEST SUBJECT
A general subject request:
“All documents related in whole or in part to the Department of Defense’s policy regarding the
handling and disposition of personal papers or the distinction between personal and official
papers.”
A request for records related to a particular event:
“All documents related in whole or in part to the August 14, 2000, sinking of the Soviet submarine
Kursk in the Barents Sea.”
A request for documents for a specific period:
“All cable traffic to and from the US Embassy in Bucharest between March 24 and June 10, 1999,
relating in whole or in part to Operation Allied Force, NATO’s military operation in Yugoslavia.”
A request for a regularly issued report for a specific time period:
“Copies of the National Intelligence Daily (NID) for the following dates: April 12, 1998; April 14,
1998; and April 15, 1998.”
A request referring to a newspaper article/clip:
“The spring 2003 memorandum from Maj. Gen. Jack L. Rives, Deputy Judge Advocate General
(JAG), Department of the Air Force, on interrogation techniques that is discussed in the attached
June 24, 2004, article from The Washington Post by R. Jeffrey Smith.”
A request for a record by its title:
“A December 2002 document titled, ‘2001 Intelligence Report to Congress on the Chemical
Weapons Convention.’ This document was cited in the March 31, 2005, report by the Commission
on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction
(Silberman-Robb Report), p. 228.”

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WHERE DO I SEND MY FOIA REQUEST?
All executive branch departments and agencies are subject to the FOIA. A list of these
departments and agencies can be found on the Department of Justice’s FOIA Web site. (See app.
2 for a list of agencies.)
Congress and the courts are not covered by the FOIA, which means that you cannot send a FOIA
request to a court or a congressional office.
The president and his immediate staff also are excluded from the FOIA. Courts have held that
components of the Executive Office of the President whose primary function is to advise the
president, such as the National Security Council, are not subject
to the FOIA. However, under the Presidential Records Act (PRA)
most presidential documents become available through the FOIA
FOIA TIP
between
five and twelve years after the president leaves office.
You can find contact
information and links to
the FOIA Web sites for all
federal departments and
agencies subject to the FOIA
on the DOJ Web site:
http://www.usdoj.gov/
oip/index.html

In general, private entities are not subject to the FOIA. This
includes organizations and entities that are funded by the federal
government or that enter into contracts to do work for the
federal government. Contracts and related records can be
requested from the contracting agencies, but you cannot file a
request for records belonging to the private contractor, even if
they are related to the contract work.
Under the 2007 amendments, documents that are maintained
for an agency by a private entity under a records management
contract are considered government records subject to the FOIA.
To obtain such records, you must file a request with the federal
agency, which is required to retrieve them from the contractor.

Centralized and Decentralized Agencies
Some agencies have “centralized” FOIA programs. This means that one central office is
responsible for processing all FOIA requests for the entire agency. Other agencies have
“decentralized” FOIA programs, where multiple components, offices, or bureaus within the
agency have independent FOIA staff responsible for processing the component’s requests.
The Department of Defense is an example of an agency with a decentralized FOIA program. The
Office of the Secretary of Defense has its own FOIA office that processes general Defense
Department FOIA requests. But each military branch (Army, Navy, Air Force, Marines) and major
command has its own FOIA office. Within these components, there are even some
subcomponents with independent FOIA offices.
At a decentralized agency, you should send your request directly to the appropriate component
or office if possible. You can also send the request to the central processing office, which
generally will forward it to the appropriate office, but this may delay processing.

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Choose the Correct Agency
Conduct preliminary research to identify which agencies or
agency components are likely to have materials about your
research topic. A number of different tools are available to
learn about agency operations and help you find out which
agencies may have been involved in the topic or issue you are
researching. For example:

FOIA TIP
Always try to send your
request to the correct office or
component at the agency to
shorten processing time.
Learn more about agency
organization with these tools:
• Agency Web sites
• US Government Manual
• Federal Yellow Book
• General Web search
(e.g., Google)

•

Secondary sources like books and articles can provide
useful information about agencies or even about
documents relevant to your subject.

•

Investigate the agency’s Web site, and look for mission
statements, organizational charts, or other background
material about the agency’s work.

•

Call the agency FOIA office or public affairs office if you
are still not sure whether you have selected the correct
agency.

•

The agency’s FOIA site or FOIA office may be able to help you determine whether you need
to send your request to the headquarters or to a field office or component.

Depending on your research topic or subject of interest, several agencies or components may
have relevant documents. If this is the case, you should send your request to each of these
agencies or components to ensure that you get all relevant information rather than just the
portion held by one agency. For example, if you are searching for information about US policy
on drug trafficking in Colombia, you may want to send your request to the Department of State
as well as to the Drug Enforcement Administration, the Department of Defense, US Southern
Command, and the Defense Intelligence Agency.

Historical Records
For historical records (records that were created more than twenty-five years ago), you should
begin your research at NARA or at the Presidential Libraries before filing a FOIA request.
Generally, agencies have transferred to NARA records that were created before the 1980s.
However, there is no clear cut-off date for when agencies transfer materials to NARA. Moreover,
NARA is suffering from a backlog in the processing of documents from agencies. To browse
materials NARA has received recently from agencies, see http://www.archives.gov/research/
accessions/listing.html.
Note that FOIA requests to NARA are significantly different from requests to other executive
branch agencies because NARA cannot search for documents using keywords or electronic
searches. Instead, the requester must identify the specific document and its location at NARA
(record group, project number, collection, box, file, title, and item number) in the initial request.
To locate identifying information about the record(s) you are seeking, you should visit the
National Archives and review relevant finding aids, so that you can call up boxes of documents
and review file folders. If a document has been withdrawn because it contains exempted or
classified material, there will be a withdrawal sheet that provides basic information about the
document (date of document, author, recipient, etc.).
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DEVELOPING A FOIA STRATEGY
Once you determine precisely what information you are seeking, it is important to develop a
strategy to request records effectively.
For general subject requests, drafting a FOIA request is a delicate balancing act between making
the request broad enough so that the agency can locate the information you are looking for, yet
specific enough that the agency can search for the documents without generating a
cumbersome amount of pages to process. Overly broad requests waste time and resources,
both yours and the government’s.
Most agencies have a two-track system for processing simple and complex FOIA requests. This
means your request goes in a queue depending on its complexity. A simple request is one that
seeks a single document, a small number of documents, or a very narrow subject that is easy to
search for—and where the information is unclassified. Complex requests usually require the
agency to search longer to find responsive documents, involve a large number of documents or
a broad subject, or concern classified information.
The key is to determine how to get the most information in the shortest amount of time without
overburdening the agency. Mapping out the information you are looking for is helpful. You
should also try to determine what types of documents might be available at which agencies and
how to effectively group the information into separate requests.
Agencies generally process simple requests more quickly. In some cases, requesting a single
document will allow you to get the document in a relatively short amount of time. However, one
downside to a simple request is that if the request is too narrow or specific, you may not get all
of the relevant information you seek.
For example, you probably would not want to send out twelve requests for twelve individual
documents if you could craft one broader request that encompasses all twelve records as well
as additional, potentially relevant materials. Likewise, if you see a document referenced in a
book or article, you may not want simply to send a single request for that document. Rather,
you should consider whether other related documents—background records, supporting
materials, or other information—might also be helpful, and craft a broader, more encompassing
request to include those. However, you should not make the request too general, since the
agency may place it in the complex queue. It can even reject the request if it considers it
unreasonably broad.

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chapter three

Pen to Paper:
Writing a FOIA Request
Having conducted research to determine what information to request from which agencies, you are
ready to draft a FOIA request. This chapter will discuss some of the essential elements of a FOIA request
letter, as well as other useful tips for the FOIA requesting process. For additional guidance, a sample
request letter template is provided in appendix 3.

DRAFTING A FOIA REQUEST
ESSENTIAL COMPONENTS OF A FOIA REQUEST LETTER
A FOIA request must be in writing and must be written in English. You cannot make a FOIA request over
the phone. You should follow the guidelines below to determine what to include in your request letter:

Statement of Request
The first sentence of your request letter should state, “Pursuant to the Freedom of Information
Act (FOIA), I hereby request the following . . . .”

Subject of the Request
When drafting the subject of your request, you should:
Be clear and specific. Your FOIA request must reasonably describe the records you are asking
for, which means that the text of your request must allow an agency employee to locate the
record(s) with a reasonable amount of effort. Assume the FOIA officer is not familiar with your
topic. Many agencies search for documents electronically, so you should use keywords and
phrases and include in your request several related keywords, if appropriate. For example, an
agency may not be able to search for “escalation of tension,” but could search for “military
assistance.”
Make sure your request is reasonable in scope. Agencies are not required to process
unreasonably broad requests or requests that require them to do extensive research or create
documents. An example of an unreasonable request would be one request for all documents
related to Saddam Hussein at the Department of Defense, since the search would likely
generate millions of hits.
Provide a date range for records or a date of the event you are researching. Providing a date
helps the agency narrow the scope of the request and locate the documents you are most

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interested in. If you do not provide a date range, the agency will search all of its records, which
could generate hundreds or thousands of pages. This could lead to lengthy delays, and the
agency could contact you to narrow the request. The agency can also reject your request for
being unreasonably broad.
Provide accurate titles and full names, and include any news stories discussing the subject of
your request. In other words, assist agency employees in doing the search by providing relevant
pieces of information. If you are aware of common alternate spellings for names or other key
words, you may consider including them to aid in the search. News stories or other supporting
materials will help the person processing the request to understand its context and may provide
additional search terms or other helpful details. Copies of the articles can be appended to the
request.
Keep your request brief. Include necessary supporting information, but avoid narratives or
excessive supporting materials that are duplicative or will confuse agency staff.
Specify whether you want the records in paper form or electronically. Agencies are required to
release records in electronic form (for example, on a CD-ROM or by e-mail) when requested, if
they can reasonably do so. However, you may find that some agencies, particularly those that
handle classified information, cannot comply with a request for electronic records.

Fee Status and Fee Waivers
Under the FOIA, agencies can charge reasonable fees for the cost of searching for records,
reviewing them for release, and reproducing them. Actual search, review, and duplication fees
vary by agency. Search and review fees can range from $8 to $45 per hour, and duplication fees
can be $0.10 to $0.35 per page. Agencies cannot require a requester to make an advance
payment unless the agency estimates that the fee is likely to exceed $250 or if the requester
previously failed to pay fees. Generally, you will be asked to pay the fees incurred after the
agency completes the processing of your request.
The FOIA specifies five different fee categories; some categories of requesters are eligible for
reduced fees (see fig. 3.1):
•

Commercial: Companies or individuals requesting information for a commercial, trade, or
profit-seeking purpose, including for
FIGURE 3.1: FOIA FEE CATEGORIES
use in litigation. Commercial requesters are required to pay fees for
Agency can charge fees for
Category
search, review, and duplication.
Commercial
• Search/review

•

Educational Institution: Public or
private preschools, elementary, or
secondary schools, and institutions of
higher education, professional education, or vocational education that
operate a programs of scholarly research. Educational requesters are
only required to pay duplication
costs, and are entitled to the first 100
pages without charge.

• Copies
Educational Institution
Noncommercial
Scientific Institution
News Media
All Other

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•
•
•
•
•
•
•
•

No fees for search/review
First 100 pages of copies free
No fees for search/review
First 100 pages of copies free
No fees for search/review
First 100 pages of copies free
Two hours free search/review
First 100 pages of copies free

•

Noncommercial Scientific Institution: Noncommercial institutions that conduct scientific
research not intended to promote a particular product or industry. Scientific requesters are
only required to pay duplication costs, but are entitled to the first 100 pages without charge.

•

Representative of the News Media: Defined as “[a]ny person or entity that gathers
information of potential interest to a segment of the public, uses its editorial skills to turn
the raw materials into a distinct work, and distributes that work to an audience.”2 News
media include traditional print and broadcast media as well as freelance journalists, book
authors, and Internet and other new media when they fit this definition. News media
requesters are only required to pay for duplication costs, but are entitled to the first 100
pages without charge.

•

All Other Requesters: Requesters who do not fit into any of the above categories. These
requesters are persons who are not commercial, educational, scientific, or news media
requesters. They are entitled to two hours of search time and 100 pages of duplication
without charge, but are required to pay any additional search and duplication costs.

If you are seeking news media, educational, or scientific
institution status, it is important to indicate in your initial request
why you fall into a preferred fee category. Provide information
about the intended professional scholarly or journalistic uses of
the information you are requesting. If possible, the request
should be on the letterhead of the institution you represent. List
any relevant publications, including books, articles, dissertations,
publication contracts or letters of intent or interest, or similar
evidence of your ability to disseminate the information the
agency releases. State that the materials are not requested solely
for a private, profit-making, or commercial purpose.

FOIA TIP
If you are a journalist or
affiliated with an educational
or scientific institution, make
sure to send your request on
your institution’s letterhead.
This is one key factor that
agencies use to determine
whether a requester
is eligible for
reduced fees.

Public Interest Fee Waivers
Under the FOIA, it is possible to have all fees (including
duplication) waived by the agency if the material requested
(1) “is likely to contribute significantly to public understanding of the operations or activities of
government” and (2) “is not primarily in the commercial interest of the requester.”3 If you
believe your request fits these criteria, you should make your complete case for a fee waiver in
your request letter.
•

State clearly that you are seeking a public interest fee waiver under 5 U.S.C.
§ 552(a)(4)(A)(iii).

•

Be sure to describe the scholarly, historical, or current public interest in the material
requested.

•

Identify specific operations or activities of government to which the request relates and why
the information will contribute to an understanding of those activities and operations.

•

State why the public in general would be interested in the information you are requesting
and how the information will contribute significantly to public understanding of government
operations or activities.

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Commitment to Pay Fees
You also need to let the agency know how much you are willing to pay in fees. Most agencies
require that you commit to a minimum of $25, but if you know your request may involve a lot of
records, you may want to commit to a higher amount initially. If it appears that the actual fees
will exceed the amount of your commitment, the agency will contact you to either confirm your
willingness to pay more or ask you to narrow the scope of your request in order to reduce the
fees.

Contact Information
At the end of your request, be sure to include a phone number, fax number, and/or e-mail
address the agency can use to contact you with questions regarding your request.

OTHER COMPONENTS OF A FOIA REQUEST LETTER
Arguments for Release
For an ordinary FOIA request, you do not need to justify your request or in any way demonstrate
that you are entitled to the records you are seeking. However, there are several types of general
arguments that you may want to include in your initial letter, depending on the circumstances:
•

You should state that if the agency regards any of the documents as potentially exempt
from disclosure under the FOIA, the agency nonetheless should exercise its discretion to
disclose them.

•

To pre-empt exemption claims that you foresee the agency making, you may include brief
arguments, for example, that release of the documents is in the public interest or that the
passage of time has reduced potential harm so disclosure is warranted (see pp. 33-35).

•

Under the FOIA, agencies are required to release all segregable, nonexempt information
within a document. This is referred to as the “segregability requirement,” and it prevents
agencies from withholding entire documents if only a portion is exempt. In your request
letter, you should remind the agency that the FOIA requires the release of all reasonably
segregable portions of records.

Supporting Documents and Additional Information
In many cases, the FOIA officer who processes your request is not a subject matter expert, so
you should not assume he or she knows anything about the subject beyond what you have
included in your request letter. You should attach any information that may help agency staff to
locate the documents, such as copies of articles or other documents that reference the
document(s) you are seeking or the subject, event, or person you are researching.
You also may include a list of offices or bureaus within the agency where you think the
documents might be located and request that the agency search the files of those offices. If you
believe the information you are seeking may be in e-mail or another electronic format, you may
want to include a sentence specifically requesting that the agency search its e-mails and
electronic files.

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Requests For Privacy Information
If you are seeking records about yourself, you should submit a Privacy Act request, not a FOIA
request. While a Privacy Act request is in many ways similar to a FOIA request, there are some
key differences, and it often is processed by a different office than the FOIA office. You should
check each agency’s Web site for information on how to submit a Privacy Act request.
If you are requesting information about another individual, some of it may be protected
personal information. Therefore, you must either submit proof of death if the person is
deceased or, if he or she is still alive, a privacy waiver and proof of identity. Proof of death can
include an obituary or death certificate. An example of a privacy waiver can be found on the
FBI’s Web site at http://foia.fbi.gov/waiver.pdf.

Expedited Processing
The FOIA’s expedited processing provision, added in
1996, is intended to help journalists who need to get
information quickly for publication and others who
have an urgent need for records. Expedited processing
is available in cases where the requester can show
“compelling need” for the information, as defined in
the statute, and in other situations determined by the
agencies (see fig. 3.2).
When should I request expedited processing?

FIGURE 3.2: GROUNDS FOR
EXPEDITED PROCESSING
All Agencies:
• Imminent threat to life or
physical safety of an individual
• Urgency to inform the public
about government activity
Some Agencies:
• Loss of substantial due process
rights of any person
• Matter of “widespread and
exceptional media interest”
involving “questions about the
government’s integrity which
affect public confidence.”

Congress intended expedited processing to be an
exceptional option for matters that are truly urgent, not
simply an opportunity to circumvent delays in ordinary
circumstances. Because granting expedited processing
means that some requests will be processed quickly at
the expense of others, agencies require a strong
showing that one or more of the criteria are met. Agencies rarely grant expedited processing.
Therefore, it is important to request expedited processing only when you can reasonably argue
that your request is urgent and falls within one of the grounds for expedited processing.
Before filing a request for expedited processing, look at the agency’s FOIA regulations (see fig.
3.3) to determine which grounds that agency will consider. All agencies grant expedited
processing based on the following statutory grounds:
•

If failure to obtain the requested records expeditiously poses an imminent threat to the life
or physical safety of an individual.

•

If there is an urgency to inform the public about actual or alleged government activity (for
requests made by persons primarily engaged in disseminating information, like journalists,
authors, and scholars).

Other common grounds for expedited processing (adopted by some agencies in their FOIA
regulations):

- 15 -

•

If failure to get the requested records in an expedited fashion will result in the loss of
substantial due process rights of any person.

•

If the request involves a matter of “widespread and exceptional media interest in which
there exist possible questions about the government’s integrity which affect public
confidence.”4

FIGURE 3.3: HOW TO FIND AGENCY
FOIA REGULATIONS
1. Locate the agency’s most recent FOIA
Annual Report (either on the agency’s
FOIA Web site or on the DOJ site at
http://www.usdoj.gov/oip/04_6.html).
2. Section XI of each annual report
should contain a Web link and/or
citation to the FOIA regulations. Follow
the link, or access the regulations by
citation at http://www.gpoaccess.gov
/cfr/retrieve.html.

Note that several agencies have not updated their
regulations to cover expedited processing and
therefore do not provide any grounds for
expedited processing. If this is the case, simply
base your request on one of the two statutory
grounds.
How do I request expedited processing?
First, review the agency’s FOIA regulations (see fig.
3.3) or the FOIA handbook on the agency’s Web
site to determine what procedural requirements
apply to a request for expedited processing.

Some agencies require a request for expedited
processing to be made at the time of the initial request, while others allow requesters to ask for
expedited treatment any time after the initial FOIA request is filed. If possible, you should make
the case for expedited processing when you first submit your FOIA request. You should also try
to send an expedited processing request to the correct agency component, rather than to the
central FOIA processing office, for faster processing.
Then, draft a statement justifying expedited processing and certification.
•

Select the most appropriate ground(s) for your particular case from the statute and/or the
agency’s regulations.

•

Describe the circumstances that you believe qualify your request for expedited treatment.
Explain in as much detail as possible how the documents you are seeking will prevent the
specific harm—such as death or injury to a person or loss of due process—or how they will
inform the public about significant government activity. It is very important to connect a
person, event, or public interest to the specific documents you are requesting and explain
how getting the documents quickly will prevent the harm or fulfill the need for which you
are arguing. You may cite news articles demonstrating public concern about impending
government actions or decision-making processes to bolster your case.

SAMPLE LANGUAGE: “URGENCY TO INFORM THE PUBLIC”
I hereby seek expedited processing of this request because there is “urgency to inform the public
concerning actual or alleged Federal Government activity.” 5 U.S.C. § 552. I urgently need these
documents to inform the public about ____. The records sought here concern actual or alleged
government activity because ____.

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•

Explain how you will disseminate the information to show that expediting the release of
records to you will serve the purpose of the statute because you are able to get the
information to the public.

•

Include a certification of truth.

SAMPLE LANGUAGE: CERTIFIED STATEMENT
I certify that the statements contained in this letter regarding the alleged activity and public
concern are true and correct to the best of my knowledge.

What happens after I request expedited processing?
Agencies are required to determine whether to grant expedited processing and respond to the
requester within ten days. When expedited treatment is granted, the agency must process the
request and provide documents “as soon as practicable.” Although there is no specific time limit
in the statute, courts have determined that expedited requests should be processed in less than
twenty business days. The agency must at least move your request ahead of other nonexpedited requests in the queue and then process it as quickly as possible.
If you are denied expedited processing, you may appeal that decision immediately through the
agency’s ordinary appeals process (see chap. 5). If you do not appeal the determination, your
request will be processed as part of the agency’s regular queue of requests.
Granting expedited processing does not mean the agency will release the requested documents,
but only that the agency will strive to process the request as quickly as possible. The agency will
still issue a final response letter with appeal rights for any withheld information.

SUBMITTING YOUR FOIA REQUEST
All agencies accept requests by postal mail. Many agencies also accept requests sent by fax or email. Some agencies, such as the Departments of State, Defense, and Education, have online
submission forms.
When preparing to draft your FOIA request, you should check each agency’s FOIA Web site or
regulations for information on how to submit your request as well as for any additional
information the agency may require (see app. 5 to locate agency Web sites).
Make sure to clearly identify your letter as a FOIA request on the envelope or fax cover sheet so
that it can be easily routed within the agency (for example, “Attention: Freedom of Information
Act Office”).

KEEPING TRACK OF YOUR REQUESTS
Once you have filed your request(s), it is important to keep track of certain relevant information,
including the date sent, agency or components, subject(s), agency tracking numbers, and date

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and nature of any subsequent agency correspondence, including phone and e-mail
correspondence. This information may be necessary for follow-up inquiries, appeals, and
litigation and will help you avoid sending duplicate requests.

WHAT TO EXPECT AFTER SUBMITTING YOUR REQUEST
After you submit your FOIA request, the waiting game begins. Under the law, agencies are
required to issue a final determination within twenty business days. But many agency FOIA
offices have significant backlogs of pending requests. Additionally, some documents may
contain information from another agency or office within the agency that must be referred out
for a determination on whether the information can be released, which may cause further
delays in processing. As a result, most agencies do not respond to ordinary requests within the
twenty business day time limit.
In reality, the twenty business day time limit does not function as a clear deadline for the agency
to process your request. The FOIA allows agencies to extend the deadline up to ten days in
certain “unusual circumstances.” Under the 2007 FOIA amendments, the twenty-day time
period may not start until ten days after your request arrives at the agency if it has to be rerouted to the proper component. The time limit may be further extended if the agency has to
contact the requester to clarify the request or fee issues.
What you can generally expect within twenty business days is a letter acknowledging your
request and assigning it a tracking number or case number that the agency will use to identify
your request. In this letter, the agency may claim a ten-day extension for “unusual
circumstances.” Keep in mind that this acknowledgment letter does not constitute a “response”
that satisfies the time limit in the statute. Unfortunately, not all agencies send an
acknowledgment letter, responding to you only after they have completed the processing of
your request.

FIGURE 3.4: UNDERSTANDING FOIA REQUEST PROCESSING AT THE AGENCY

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The process within the agency may be different depending on the nature of your request (see
fig. 3.4). The FOIA officer who is assigned to your request will either initiate a search for
documents or ask a relevant agency office or component to search for responsive records. After
the search, the FOIA officer or other agency staff will review the relevant documents to
determine whether any exemptions apply. If a document contains classified information,
appropriate agency officials will review the document line-by-line to determine whether the
information is properly classified and therefore can be withheld.
As part of the review process, the agency may need to communicate with other agencies
regarding responsive records. If the search identifies documents that contain information from
another agency (referred to as “agency equities”), the first agency will refer the records and ask
the second agency to determine what can be released. This process is internal, so the original
agency will make the final determination and respond directly to you. In some cases, when the
agency finds documents or files that belong to another agency, it will forward the documents,
and the second agency will respond directly to you regarding those documents. In this situation,
you may receive multiple responses to one request from several agencies.
How long it will take an agency to issue a final response and/or provide you with documents
depends on the complexity of your request, whether it involves classified information, whether
the document includes information that must be reviewed by another agency or component,
and the extent of the agency’s FOIA backlog. In some cases, the agency may contact you to
clarify or narrow the scope of your request.
The agency’s final response will most likely consist of one of the following:
•

Documents released in full.

•

Documents released in part (i.e., portions redacted).

•

Documents withheld in full.

•

The agency found no documents responsive to your request.

•

A “Glomar” response, in which the agency
refuses to either confirm or deny the
existence of records.

•

Rejection of the request for a procedural
reason that typically can be corrected.

Any time an agency withholds information, the
agency must state in its response letter which
exemption(s) it is claiming (see fig. 3.5). You will
have a right to appeal the agency’s denial. The
response letter from the agency must include
information on how and when to administratively appeal an adverse determination. (See
chap. 5.)

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FIGURE 3.5: SUMMARY OF THE FOIA
EXEMPTIONS (5 U.S.C. § 552(b))
b(1)—National security information
b(2)—Internal personnel rules and practices
b(3)—Information exempt under other laws
b(4)—Confidential business information
b(5)—Privileged inter- or intra-agency
communications
b(6)—Personal Privacy
b(7)—Law Enforcement Records
b(8)—Financial Institutions
b(9)—Geological Information

FOLLOWING UP ON YOUR REQUEST
In December 2005, President George W. Bush directed agencies to institute a new customer
service structure to help FOIA requesters navigate the system. FOIA Customer Service Centers
are now the initial point of contact for requesters to follow up on and track the status of their
requests. FOIA Public Liaisons are supervisory officials whom a requester may contact if he or
she does not get a satisfactory response from the Customer Service Center.
It is important that you establish and maintain contact with the agency after submitting your
request. The agency’s acknowledgment letter often will identify a point-of-contact or case
officer for your request. If not, you can locate contact information for the Customer Service
Center on the agency’s FOIA Web site or on the Department of Justice Web site (see app. 5).
After a reasonable period of time (at least twenty days), you should call and inquire about the
status of your request. This effort will indicate to the FOIA officer your continued interest. The
FOIA officer may also be able to advise you at that time of estimated fees, clarify your request,
and warn you about possible delays.
Under the 2007 amendments, agencies must establish a tracking system to inform requesters
about the status of their requests by phone or online and provide an estimated date of
completion for each request. Check the agency Web site first—some agencies now have online
status inquiry forms where you can enter your tracking number and determine the status of
your request. Make sure to keep your tracking number and reference it in any follow-up
correspondence.
Beyond reasonable follow-up, you should not harass your FOIA officer with too many calls or
letters. Your request is far from the only one the agency has received. At some agencies,
program or policy officials (not dedicated FOIA staff) may handle FOIA requests, and your
request is just one of many tasks for which they are responsible.
Keep track of all substantive telephone or electronic communications about your request, in
addition to written correspondence with the agency, to ensure you have a complete record of
your FOIA case for possible appeals or litigation.

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FOIA CHECKLIST
Am I prepared to file? Have you checked whether the information you are seeking
is already publicly available?
Where should I file? Have you determined all the agencies likely to have responsive
documents? Have you determined whether this request needs to be sent directly to a
specific agency office or component?
Have I included all the key elements in my request letter?
Is the request in writing and does it contain the statement “Pursuant to the
Freedom of Information act (FOIA), I hereby request the following . . .”?
Is the subject of the request focused and clearly written?
Did you provide a date range for the records you are seeking or a date of the
event or issue you are researching?
Did you provide accurate titles and full names and include any news stories or
other supporting materials relevant to your request?
Did you include any arguments for release and remind the agency to release all
reasonably segregable material?
Did you specify what fee category you belong in and include a commitment to
pay fees? If you are asking for a public interest fee waiver, did you include all
relevant arguments and supporting materials?
If you are requesting expedited processing, did include all relevant arguments
and supporting materials? Did you include the certified statement?
Did you include contact information (address, e-mail, phone number) so that
the agency can contact you?

- 21 -

- 22 -

chapter four

Another Way:
Mandatory Declassification Review
Another way to obtain documents from federal agencies is through a Mandatory
Declassification Review request. Through the MDR process, any individual may ask an agency to
review a classified record for declassification and release, regardless of its age or origin. The
MDR process differs from the FOIA process in many respects. This chapter will help you
determine which type of request is most appropriate for your situation.

WHAT IS MANDATORY DECLASSIFICATION REVIEW?
Mandatory Declassification Review is another route to the declassification and release of
security-classified agency records. Under the terms of EO 12958, as amended, any member of
the public may ask an agency to review a record through the MDR process.
The process of filing and following-up on an MDR request is similar in many ways to the FOIA
process. First a requester writes to an agency requesting that certain documents be reviewed
under the terms of EO 12958. The agency then has one year to determine whether those
documents may be released to the public. If the agency does not release the documents, or if
the requester is unsatisfied with the results of that review, the requester may appeal to the
agency.
If the requester is unsatisfied with the results of the second agency review, or if the agency
misses certain deadlines in responding to an initial request or an administrative appeal, the
requester may appeal to the Interagency Security Classification Appeals Panel (ISCAP). ISCAP is a
six-member body, created by EO 12958, which consists of senior-level representatives from the
Department of State, Department of Defense, Department of Justice, the Central Intelligence
Agency, the National Archives and Records Administration, and the National Security Council. In
addition to deciding MDR appeals, ISCAP also hears classification challenges from government
officials and approves automatic declassification exemptions.
The added review by ISCAP, while often providing a degree of impartiality in the MDR process,
comes with a trade-off. Unlike requests filed under the FOIA, MDR requests cannot be reviewed
by a federal court; the requester waives the right to litigate when choosing the MDR process.

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SHOULD I USE MDR OR FOIA?
MDR requests are for security classified records. In deciding whether to file a FOIA or an MDR
request, the first question you need to ask is, “Is the information subject to MDR?” If the
information is security classified and the request is narrowly focused, then you need to
determine whether you are more likely to get the information using the FOIA or MDR.
Unlike the FOIA process,
MDR only applies to security
classified records, or those
records that are protected
for national security reasons
under EO 12958, as amended. EO 12958 establishes
how information is classified,
what type of information
may be classified, who has
the authority to classify it,
and how it may be reviewed
for de-classification.

FIGURE 4.1: COMPARISON OF FOIA AND MDR
FOIA
MDR
Statutory
EO 12958, as amended
Classified and unclassified
Security classified information
information
only
Can request specific documents
Request must be either for
or documents related to more
specific documents or a narrow
general subjects
range of documents the agency
can locate with minimal effort
Request
Appeal
Litigation
Request
Appeal
ISCAP
Appeal
Twenty business days to respond One year to respond to request
(request and appeal)
(180 days for agency appeal)

If the document is not classified, you can only request it through the FOIA. All classified
documents are subject to the MDR process with the exception of: information originated by the
president, vice president, or their White House staff; information originated by committees,
commissions, or boards appointed by the president; other entities within the Executive Office of
the President that solely advise and assist the incumbent president; and information classified
under the Atomic Energy Act of 1954, as amended. As with the FOIA, Congress and the courts
are not subject to the MDR process.
In reality, you may not always know whether the records you seek are classified. In this case, it
may be safer to submit a FOIA request. Agencies are not obligated to review or release
unclassified records that they locate in response to an MDR request.
MDR requests must target specific documents. Unlike a FOIA request, which can cover records
related to a general subject or issue, an MDR request must contain enough specific information
about a particular document or documents so as to enable the agency to locate the material
with a minimal amount of time and effort. For example, you can request specific items by
document title or document number.
Additionally, you may ask for a very narrow range of documents, such as all classified cables on
a specific topic from a particular embassy to the Department of State during a limited time
period. The MDR process does not provide for research by the agency, however, so if you are
unable to identify an individual document or very specific set of documents, it would be better
to file a FOIA request.
MDR requests may take longer. In contrast to the much shorter deadlines in the FOIA, agencies
have one year to send a final response to an MDR request and 180 days to respond to an MDR
appeal. If an agency misses one of these deadlines, the requester may skip the rest of the
agency process and appeal directly to ISCAP. However, the appeal must be submitted within

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sixty days after the agency’s response was due. If the appeal is not submitted within sixty days,
the requester must wait until the agency finishes processing the request.
MDR requests cannot be litigated, but ISCAP exists for second appeals. If you are not likely to
litigate for the documents, then you may want to consider filing an MDR in order to have the
option of appealing to ISCAP, which has a consistent record of impartiality and regularly reverses
agency decisions to withhold information. Similarly, if the agency has a significant backlog and
would likely take longer than one year to respond to a FOIA request, you may want to consider
filing an MDR in order to be able to appeal directly to ISCAP once the agency misses the
response deadline. At some agencies, this can hasten the release of records.

FIGURE 4.2: MDR VERSUS FOIA
Is your request for a single
document or a very narrow
series of documents?

Yes

Consider filing an MDR

No

Must file a FOIA

Yes

May file an MDR

No

Must file a FOIA

Yes

Should file a FOIA

Yes

Consider filing an MDR (unless
you plan to litigate after agency
misses 20-day deadline)

Is the information you are
requesting security classified?

Are you likely to litigate if the
agency continues to withhold the
documents after appeal?

Does the agency have a
significant backlog, and is it
likely to take longer than one
year to process your request?

FILING AN MDR REQUEST
Like a FOIA request, an MDR request must be submitted in writing to the agency. At most
agencies, MDR requests are sent to the same office as FOIA requests; however, some agencies
have separate MDR contact information. You can find information on where to send MDR
requests at each agency on NARA’s Information Security Oversight Office’s Web site:
http://www.archives.gov/isoo/contact/mdr-contact.html.

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To draft your MDR request:
•

Begin your letter by stating, “This is a request for a mandatory declassification review
(MDR), under the terms of EO 12958, as amended, of the following.”

•

Specifically describe the document(s) you are looking for. When possible, include a title,
date, and document number.

•

Ask that the agency release “all reasonably segregable material.”

•

Include your contact information in case agency staff have questions or difficulties locating
the document.
SAMPLE LANGUAGE: MDR REQUEST
This is a request for a mandatory declassification review (MDR), under the terms of Executive Order
12958, as amended, of the following:
[INSERT SUBJECT OF REQUEST]
If you regard these documents as potentially exempt from disclosure requirements, I request that
you nonetheless exercise your discretion to disclose them. Please release all reasonably segregable
nonexempt portions of documents.

HOW DO I APPEAL AN MDR DENIAL?
After reviewing a document retrieved in response to an MDR request, the agency will either
release it in full, release a redacted version, or withhold the document in full. In instances where
all or part of a document is withheld, the agency will indicate which of the classification
categories listed in EO 12958, as amended, apply to the information (see fig. 5.3 for
classification categories and see app. 7 for the full text of EO 12958).
Agency Appeals
You have the right to appeal an agency’s MDR decision whenever the agency denies your
request and/or withholds information. The agency will include information on where to send
the appeal and the appeal deadline in its response letter.
Your MDR appeal should include arguments and, when possible, supporting documents, and
information as to why the information should no longer be classified. (See chap. 5 for appeal
strategies.)
ISCAP Appeals
Although you do not have the right to sue the agency in federal court, you can file an additional
appeal with ISCAP if the agency continues to withhold information after you have appealed at
the administrative level. The agency’s response to your appeal will include information on how
to appeal to ISCAP as well as the deadline (sixty days from the appeal response). Be sure to

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provide background on your request in your ISCAP appeal and attach copies of all
correspondence, including the original request. You can make the same arguments as in the
administrative appeal about why you believe the requested document(s) no longer require
classification under EO 12958, as amended.
FIGURE 4.3: MDR DEADLINES
Initial Request

If agency does not respond in one year

Appeal to ISCAP within 60 days

Admin. Appeal

If agency does not respond in 180 days

Appeal to ISCAP within 60 days

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- 28 -

chapter five

A Second Look:
Appealing Agency Denials
MAY I APPEAL?
FIGURE 5.1: ADVERSE DETERMINATIONS
THAT MAY BE APPEALED
• Agency withholding requested record or
any portion of requested record
• Agency failure to comply with twenty-day
time limit for responding to request
• “No records” response or failure to
conduct an adequate search
• Denial of request for preferred fee status
• Denial of fee waiver request
• Denial of request for expedited
processing
• Charging of excessive fees
• Rejection of request based on failure to
adequately describe requested documents
• “Glomar” response—agency says it can
neither confirm nor deny the existence of
requested records
• Determination that requested records are
not subject to FOIA because they are not
agency records or are operational files

The FOIA permits a requester to appeal “any
adverse determination.” An adverse determination is a decision by the agency denying
part or all of a FOIA request, including any
procedural denials that may prevent the
requester from obtaining the requested
records.
Most commonly, appeals are filed when an
agency withholds records or provides records
with redacted portions. In these situations,
your appeal will challenge the agency’s
determination that the withheld information
fits within one of the nine FOIA exemptions.
But you also may appeal when an agency does
not find any records, delays its response
beyond the statutory time limit, makes an
improper decision to charge fees, or otherwise
impedes your access to the records you
requested. (See fig. 5.1.)

Whenever an agency makes an adverse
determination, it must inform the requester of
the reason for the denial and the requester’s right to appeal. In addition, agencies must provide
the names and titles of the official(s) responsible for the decision. Even if an agency does not
state in the denial letter that you have appeal rights, you can still appeal if you believe the
agency has made an “adverse determination.”
Denials of information requested through the MDR process may also be appealed to the agency
and MDR appeals generally will follow the same format as FOIA appeals (see chap. 4). Because
MDR appeals primarily challenge the agency’s decision not to declassify and release classified
information, use the same arguments as for FOIA Exemption 1 appeals (see pp. 38-40, below).

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SHOULD I APPEAL?
In most cases, it is useful to file an appeal when the agency has denied any part of your request.
The law requires agencies to respond by taking another look at the request, and the appeal
generally triggers review by a different employee at the agency who may be more senior and
therefore more willing to exercise discretion, or who may simply have a different perspective on
the response. More often than not, a timely and well-written appeal results in at least some
additional information being released.
If you plan to file a lawsuit in federal court challenging the agency’s decision, you must first
complete the administrative process by submitting an appeal—and you should be sure to file
the appeal on time to ensure your right to litigate later. If you anticipate litigating your request,
you may consider consulting an attorney about your appeal.
It is particularly important to ask the agency to review its decision when one or more documents
have been withheld in their entirety. The FOIA requires agencies to release any segregable
portions of a document that are not exempt from disclosure under one of the nine exemptions.
Therefore, you should request that the appeal authority review the records to ensure that all
portions of the withheld records are covered by the claimed exemptions.
In some cases, it may be reasonable to accept the agency’s
decision on your request. For example, you may have been
uncertain about whether the requested record existed and the
agency responded that it had no documents responsive to
your request. Or, the document was released with only a few
redactions, such as names removed for privacy reasons. In
these circumstances, you should make a judgment as to
whether filing an appeal is worthwhile, considering the
likelihood of success, the importance of the requested documents to your work, and the negative implication of overburdening the agency unnecessarily.

FOIA TIP
File your appeal on time!
For most agencies, appeals
will be due thirty to ninety days
after the agency’s denial.
But each agency is
different, so check
your response
letter or the
agency’s FOIA
regulations.

WHEN MUST I APPEAL?
The deadline for filing an appeal is set in each agency’s
regulations and varies among agencies. Most agencies allow between thirty and ninety days
after the date of the agency’s denial letter to file an appeal, but some may provide a shorter
time period. Read the agency’s response letter carefully, and if it does not provide any details,
call the FOIA Service Center or consult the agency’s regulations or FOIA Web site for specific
requirements (see app. 5). To guarantee that the agency considers your appeal, make sure to
file it within the time limit provided. This is very important because an agency can reject any late
appeal and you will lose your right to challenge the agency’s denial of your request.

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DRAFTING AN APPEAL
ESSENTIAL COMPONENTS OF AN APPEAL LETTER
The appeal must be in writing and in English and must follow any other procedural requirements set by
the agency. Review the statement of appeal rights in the denial letter, as it may include additional
requirements (such as to label the mailing envelope or fax cover as an “appeal”). Include the following
items in your appeal letter:

Statement of Appeal. State clearly that the letter is an appeal of the agency’s adverse
determination.

Background on Initial Request and Agency Denial. Include details about your initial
request, identified by date and agency tracking number(s), and a description of requested and
withheld material. Enclose copies of all relevant correspondence with the agency, including the
initial request letter and agency response(s).

SAMPLE LANGUAGE: STATEMENT OF APPEAL AND BACKGROUND
This letter constitutes an administrative appeal under the Freedom of Information Act, 5. U.S.C. Sec.
552(a)(6).
I am writing to appeal the determination by the [agency] with regard to my FOIA request filed on
[initial request date], [request tracking number], for records concerning [subject of request]. By letter of
[agency response date], [describe agency denial: withheld records / denied expedited processed / no
documents]. [Attach request letter and agency response].
“I am writing to appeal the determination by the Central Intelligence Agency (CIA) with regard to my
FOIA request, filed on February 17, 2005, for several records referenced in the July 7, 2004, Senate
Intelligence Committee’s Report on the US Intelligence Community’s Prewar Intelligence Assessments on
Iraq (Req. No. 05-2137). By a letter of September 2, 2005, the CIA withheld four of six requested
documents under exemptions (b)(1) and (b)(3) of the FOIA.”

Arguments in Support of Appeal. There are a variety of different arguments that can be
made in support of an appeal, depending on the nature of the request and the agency’s
response. Consider whether policy (common sense) or legal arguments may be appropriate for
your appeal. Some examples of policy arguments include:
•

disclosure is in the public interest

•

the information is already publicly available

•

passage of time has reduced potential harm

Some examples of legal arguments include:
•

the agency conducted an inadequate search

•

the agency did not release all segregable portions of the records

•

the agency improperly denied a procedural request

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•

one or more of the FOIA exemption(s) were improperly applied

More detailed information about potential arguments and strategies for making them are laid
out below. Include as many alternative arguments for release as possible.

Supporting Materials. Be sure to enclose any supporting documentation, such as portions of
documents already released that show why additional material should be disclosed, news
articles, or other documents that support your arguments. Be sure to reference the materials in
your letter and identify them clearly (for example, by labeling them “Attachment A,”
“Attachment B,” etc.).

Contact information. Include your contact information (phone and/or e-mail) and offer to
discuss your appeal with agency staff.

SAMPLE LANGUAGE: CLOSE OF APPEAL LETTER
I look forward to receiving your decision on this appeal within the 20-day statutory time limit. If you
have any questions, or believe discussion of this matter would be beneficial, please contact me directly
at joeschmoe@gwu.edu or (202) 555-2000.

CRAFTING APPEAL ARGUMENTS
Filing an administrative appeal does not require the assistance of a lawyer. In many cases you
will be able to write a successful appeal based solely on your personal knowledge of the
requested records and common sense about why those records should be released.
Nonetheless, keep in mind that a successful appeal will often include legal arguments. There is
no single, settled interpretation for most provisions of the FOIA statute. Rather, over time courts
have examined parts of the statute in the context of disputes between requesters and agencies
and have explained the meaning of the law as they understand it. In some cases, different courts
have come up with different interpretations of the same provision. What you argue in your
appeal should be based not only on the text of the FOIA but also on the common understanding
of what a provision means, including courts’ interpretations.
Must you read court opinions and cite cases in your appeal? Sometimes reading a court decision
about a FOIA request similar to yours might help you to understand how the FOIA applies in
your case and what the agency’s obligations are towards you (and therefore whether or not it
has fulfilled those obligations). At the very least, it is useful to understand the meaning of a
given provision or exemption as it is commonly interpreted from both the statute and the cases.
Brief summaries of the key provisions are below, as well as information about additional
resources that can help you to develop your legal arguments.

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FIGURE 5.2: LOCATING AND READING A FOIA COURT DECISION
FOIA cases are decided by federal courts around the country. You can locate court decisions through
various sources, by subject or citation. It may help to cite relevant court decisions that support the argument
in your appeal.
How to read a case citation:

Weisberg v. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)
/

|

Plaintiff
(FOIA requester)

Defendant
(agency)

|

|

Citation to publication, page #
volume, start page
(Federal Reporter)

/
court

\
year of decision

Finding a specific decision:
Go to http://www.findlaw.com/casecode/ or another source of federal case law (such as WestLaw or
LexisNexis, which generally require subscriptions). Select the appropriate court (district court, court of
appeals, Supreme Court) and the relevant jurisdiction (state or circuit number—from citation) and search to
locate specific decision.
See also Significant Judicial Decisions Interpreting the FOIA (compiled by Public Citizen Litigation Group),
http://www.citizen.org/litigation/free_info/foic_lr/foiacases/index.cfm.
Reading a decision:
•
•
•

The decision will describe the facts of the case (i.e., the nature of the FOIA request at issue and
the circumstances of the agency’s decision). Consider how these facts may be similar to or
different from your request and denial.
Read the court’s reasoning. This is where the court explains the meaning of the FOIA provision at
issue and how it applies to the facts of the case.
Consider the court’s conclusion. Did the judge determine that the agency was wrong? Would
describing the circumstances of this case help the argument in your appeal? If the court decided in
favor of the agency, can you show that this case is different from yours and the agency should
therefore reconsider its adverse determination on your request?

POLICY ARGUMENTS
The following are some examples of the types of “common sense” arguments you can make using your
own knowledge about the requested records and/or the request subject matter. Keep in mind that
these arguments are largely fact-specific, which means you will need to craft your appeal based on the
actual records you are seeking and be as specific as you can by including factual information that
supports your argument.
In some cases, agencies have discretion to release records, even if they are not required to do so,
because the records fall within one of the FOIA exemptions. The following arguments may be helpful in
convincing the agency official reviewing your appeal to conclude that release would not harm the
interests protected by a FOIA exemption and to exercise his or her discretion to release the records.

Disclosure is in the Public Interest
Agency discretion means that if agency officials feel there is not likely to be any harm from
release, or if there is a compelling reason to release the information, then they may choose to
do so. For example, the two exemptions for privacy information have built-in balancing tests

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that permit agencies to evaluate an individual’s privacy interests in not having information
released and the countervailing public interest that counsels in favor of disclosure.
For these reasons, it is helpful if you can argue that there is a strong public interest in releasing
the requested material. Some examples of requests where significant public interest may justify
disclosure include information that is about current or recent US policy decisions that directly
impact the public—the war in Iraq or the National Security Agency’s warrantless wiretapping
program—or materials that expose government wrongdoing, misconduct, or misuse of public
funds. There may also be arguments in favor of discretionary release based on public health and
safety, ongoing public debate, value to scholarly interests, and personal urgency. The possible
public interest reasons are as varied as the issues agencies handle.

The Information Is Already Publicly Available
Often, some information about the subject matter or specific program, policy decision, or event
covered by your request is already known to the public. If some details about a secret
government program have been disclosed, such as through a newspaper article, congressional
testimony, or speech, the government can show no harm from releasing the information
because any such harm would have already occurred. Moreover, the fact that details about the
policy or program have been released without consequence is evidence that at least some of
the information you are seeking should be released.
When the agency has withheld records in their entirety, search for publicly available
information that might be relevant. For example, there may be newspaper articles on the topic
or press conferences, speeches, or testimony where government officials have discussed it. In
addition, portions of other released government documents or books written by former officials
may provide more details. If you believe that some information in the denied records is in the
public domain, argue that at least those portions of the records that cover the already-public
information should be released.
When you argue that requested information is already publicly available, be sure to include any
documentation of the previous public disclosures. Do not assume that the FOIA office will do
this research for you. If a subject has been discussed repeatedly by agency officials, attach
transcripts of testimony, speeches, or press conferences to show that broad disclosure has
already taken place. Official acknowledgment will prove the most compelling to the agency.
Even without knowing for sure what the requested documents contain, you can explain why
you believe that certain factual information likely would be contained within the given records.

The Passage of Time Has Reduced Potential Harm
If you are requesting historical information or information about a program or policy that is no
longer in effect, you can argue that the information should no longer be protected because time
has passed and therefore arguments about harm from disclosure are no longer relevant.
Depending on the type of information requested, you may argue that information about private
citizens can be released because many of the individuals involved are no longer living, or that
national security interests should not prevent disclosure because there would be no harm to
current security interests. This is also a very useful argument to make in the context of internal
agency deliberations or decision-making processes where disclosing predecisional or other

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types of protected information would not cause harm if the final decision was made in the past
and disclosure would inform the public about important historical government decision making.

LEGAL ARGUMENTS
Inadequate Search or “No Documents” Response
An agency may respond by saying that it has “no documents” responsive to your request. This
means that the FOIA officer did a search based on the information you provided in your request
and did not locate the specific record(s) you asked for or did not find any records when
searching using keywords taken from your request. A “no documents” response does not
necessarily mean that the agency has no documents that satisfy your request, although this may
be the case; it simply means the agency did not find any documents in its search.
Agencies are required to conduct a search that is “reasonably calculated to uncover all relevant
documents.”5 This means the agency has to do a reasonably good job of selecting search terms
and searching in the right places for the records you requested. In addition, agencies have a
duty to interpret FOIA requests liberally, rather than second-guessing the requester’s intention
to make the request narrower and more easily searchable.
You may either appeal a “no documents” response broadly or very specifically, depending on
the nature of your request and the information you have. If you asked for a specific document,
explain why you believe that document exists. For example, you may have seen the document
or meeting referenced in a news article. Attach any supporting materials, such as a copy of an
article or statement by an agency official that references the document.
If you asked for documents about a general subject and you have reason to believe that the
agency has records about this topic, you can simply ask it to search again. To support your
request, present any facts you have that support the claim that the agency has or should have
records about this topic (e.g., representatives of the agency were present at a meeting on the
subject, so they likely prepared briefing materials and other background information).
The agency may not have found responsive records because it did not search in the right places,
either because of the organization of its records, its search capabilities, or its interpretation of
your request. You might consider calling the agency to learn more about how it searched for the
records. When drafting your appeal, try to determine which office, bureau, or component of the
agency would have worked on the subject matter you are interested in and ask that a new
search be conducted of all records in that office. You can learn about the organization of the
agency and the responsibilities of its offices on the agency’s Web site or through other public
sources. Include a list of any offices or bureaus within the agency where you think the
documents might be located and a request that the agency search those files.
Before drafting your appeal, it is best to get more information about the nature of the
document(s) you are seeking and/or the agency’s organization and filing system. For example,
some agencies such as the FBI may search only in a central records database that likely does not
reference all of the agency’s paper records or all records held by individual offices or
components. Or the agency FOIA staff interpreting your request may select only particular
offices or components to search, and they may not search broadly enough to locate the
relevant records.

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If your request concerns a recent matter that probably involved intra-agency e-mail
correspondence, specifically state in your appeal that the agency should search all electronic
files, including e-mail systems, for responsive records. Although agencies are required by law to
search e-mail and electronic files just as they search paper files, some agencies do not have the
capacity to do a keyword search across their entire e-mail system for relevant messages and
may have to conduct a more targeted search.

Agency Did Not Release Segregable Portions
The FOIA mandates that an agency must release any portions of a record that are not exempt,
provided the nonexempt portions are “reasonably segregable,” i.e., they can be easily
separated from the exempt portions for release. This segregability requirement applies to all
documents and all FOIA exemptions. It means that when you request a record and the record is
withheld in its entirety, the agency is obligated to justify why every word of that record is
exempt. If some portion of the record does not fall within one of the nine exemptions, the
agency must release the segregable nonexempt portions. In some cases, you will receive
redacted documents with exempt portions blacked out.
Because many agency exemption claims are subjective, it is important to cite the segregability
requirement in administrative appeals to ensure that the official reviewing the appeal considers
whether additional material—even a few words or sentences—can be released without harm.
Making a segregability argument in your appeal often will result in additional material being
released. Keep in mind, however, that despite the segregability requirement, an agency may
withhold nonexempt material if it is so intertwined with exempt material that disclosure would
provide only meaningless snippets of information.

Improper “Glomar” Response
In responding to a FOIA request, an agency may refuse to either confirm or deny the existence
of records if doing so could cause harm. This type of refusal is known as a “Glomar response,”
named for a case in which the CIA refused to confirm or deny the existence of records that
would have revealed the CIA’s connection with a seagoing vessel known as the Glomar Explorer.
The response is different from an ordinary FOIA denial, where the agency either says it has no
responsive documents or that it is withholding responsive documents.
Glomar responses are most common when the request concerns national security or
intelligence information. A Glomar response in the national security context is only appropriate
when the fact of the existence or nonexistence of the record is itself properly classified. Cases
where a Glomar response would be permissible include when disclosure of the existence or
nonexistence of documents would reveal the agency’s interest in a person or activity, if that
interest is a classified fact or would otherwise harm national security. Agencies also have used
Glomar responses in the privacy context, where disclosure of the existence or nonexistence of
records would result in an invasion of an individual’s privacy.
Glomar responses are difficult to overcome, both on appeal and in litigation. The easiest way to
challenge a Glomar response is to show that the information requested has already been
disclosed. Keep in mind that to succeed with this argument, the information requested must be
virtually identical to the information previously released and the information must have been
made public through a documented official disclosure, not simply public speculation or a leak.
For example, if a CIA official has referenced a particular individual when publicly discussing an

- 36 -

investigation conducted by the agency and you file a request for all records about that
individual, the CIA cannot Glomar your request because it has publicly acknowledged that the
individual was part of an investigation and, therefore, that the CIA has some records about him.
Make sure to carefully consider the scope of your request and the agency’s Glomar response. If
your request was very broad—for example, covering records about an aspect of the warrantless
wiretapping program, which has been publicly acknowledged—you can argue that the agency
may not properly invoke Glomar (even if the response would be appropriate for a narrower
request).
Beyond instances of prior public disclosure, courts generally have shown great deference to
agency claims of potential harm to national security. If you do not feel that you can make any of
the above arguments on appeal, it may be possible to redraft your request and file it again to
attempt to avoid a Glomar response. If you file a broader request, the subject of which would
encompass your initial, narrower request, the agency may be unable to Glomar because the
existence or nonexistence of any documents about the broad subject matter would not be a
protected fact. Keep in mind, however, that if a Glomar response is overturned on appeal or
withdrawn, the requester will receive confirmation of the existence or nonexistence of
documents but will not automatically gain access to the documents themselves if their contents
are protected by a FOIA exemption.

Improper Denial of Procedural Request
When you receive an adverse determination on a procedural matter, such as a request for
expedited processing or a fee issue, you may file an appeal that essentially repeats the same
arguments you made in your initial request. You should already have provided all of the
required details—for example, why your request qualifies for expedited processing under the
agency’s standards or why you fall into a given fee category or deserve a public interest fee
waiver. It is nonetheless useful to reiterate these arguments and file an appeal if your request is
denied, because at most agencies a different official will review your appeal and may come to a
different conclusion than the original reviewer.
You should also read the response letter to see if the agency gave any specific reasons for its
decision to which you can respond. If you have any additional arguments or further support
(e.g., a list of publications or examples to back up your claim that you are a representative of
the news media), you should include those as well. If you intend to litigate the denial of a
procedural request, you will be limited to the arguments you made at the administrative level.
Thus, you should develop all of your arguments fully to the agency in the initial request and/or
the appeal.

Improper Rejection of Request
Sometimes, an agency will reject or refuse to accept a request because the agency believes that
the records requested are not “agency records” within the meaning of the FOIA, or because the
agency is not an “agency” subject to the FOIA, or for another procedural reason. A request to an
intelligence agency may also be rejected because the agency claims that the requested records
are contained in operational files that are not subject to search and review.
When an agency rejects your request, the response letter may or may not state that you have a
right to appeal this decision. Even if the agency has not explicitly granted appeal rights, you

- 37 -

should file an appeal arguing that at least some of the information you requested is subject to
the FOIA and that the agency should therefore process your request.

ARGUMENTS REGARDING SPECIFIC FOIA EXEMPTIONS
When an agency withholds information (either documents in their entirety or portions of
documents), it is important to argue in as much detail as possible why the withheld information
does not fall within the statutory exemption(s) cited by the agency. In some cases, it is useful to
support your argument with case law interpreting the relevant exemption, which may narrow or
clarify the reach of the exemption or imply that the particular information you requested is not
covered by the cited exemption. Even if the document(s) have been withheld in their entirety
and you do not know much about their contents, you can make general arguments about the
exemption(s) that the agency has claimed.
Begin by determining which exemptions the agency has used to withhold the information. The
agency is required to inform the requester of the reasons for withholding, and generally will do
so in the denial letter. If some records have been released in redacted form, agencies are also
required to indicate on the released records themselves which exemption(s) have been applied
to each withheld portion. If it is not clear from the response letter and/or released records why
the information you requested has been withheld, contact the agency to inquire before drafting
your appeal. It is very important to make specific arguments that are tailored to the agency’s
justification for withholding.

Presumption of Disclosure
The FOIA establishes a strong presumption in favor of disclosure of government records, placing
the burden on the agency to justify the withholding of requested documents under one of the
nine specific exemptions provided in section 552(b) of the statute. According to the Supreme
Court, the FOIA is grounded in “a general philosophy of full agency disclosure unless
information is exempted under the clearly delineated statutory language.”6 The Supreme Court
also has concluded that the FOIA exemptions are limited and “are to be narrowly construed.”7
Keep these general principles in mind when crafting administrative appeals. If you don’t feel
that the agency has adequately justified its decision to withhold the information you requested,
say so. Remind the agency in your appeal that it must interpret the exemptions narrowly and
review each and every document in detail for protected material, rather than sweeping broad
groups of records within the exemptions.

Exemption 1: National Security Information
Exempts information that is “(A) specifically authorized under criteria established by an
executive order to be kept secret in the interest of national security or foreign policy and (B) are
in fact properly classified pursuant to such executive order.”
Classification is governed by an executive order issued by the president. The national security
executive order currently in force is EO 12958, as amended.8 The FOIA provides that a
document that has been properly classified under the executive order can be withheld from
disclosure. In response to a FOIA request, an agency must review a classified document to

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determine if it still requires protection. If the agency determines that the requested document
is properly classified, a requester may challenge this decision on appeal.
Note that most MDR appeals will be similar to Exemption 1 appeals in that they challenge
withholding of material based on security classification (see chap. 4). In most cases, MDR
response letters will indicate not only that information has been withheld pursuant to EO
12958, but also in which classification category the information falls (see fig. 5.3).
You may be able to argue that the document(s) you requested should not be withheld under
Exemption 1 for one of the following reasons:
•

The information does not fall within the
categories of information that may be
classified under EO 12958, as amended.
The executive order specifies eight
categories of information that may be
classified if disclosure of the information
could cause damage to national security
(see fig. 5.3; app. 7 for text). Agencies
likely will not inform you about the
specific rationale for classifying the
information you are seeking, but if you
feel that the information you requested
would not fall within any of the specified
categories, make that argument in your
appeal.

FIGURE 5.3: CLASSIFICATION CATEGORIES
Information cannot be considered for
classification unless it concerns:
• military plans, weapons systems, or
operations
• foreign government information
• intelligence activities (including special
activities), intelligence sources or methods,
or cryptology
• foreign relations or foreign activities of the
United States, including confidential
sources
• scientific, technological, or economic
matters relating to the national security,
which includes defense against
transnational terrorism
• United States Government programs for
safeguarding nuclear materials or facilities
• vulnerabilities or capabilities of systems,
installations, infrastructures, projects, plans,
or protection services relating to the
national security, which includes defense
against transnational terrorism
• weapons of mass destruction

•

The information is old or outdated and
no longer needs to be classified. Generally, when information is classified it
must be designated for declassification
after ten years, but more sensitive information may remain classified for up to
twenty-five years. Records of permanent
historical value are subject to automatic
declassification when they reach twenty-five years old, unless they are specifically
exempted. Although age alone is not proof that a record should be declassified, it is one
consideration in determining whether the record can be released. Therefore, if you know
that a document you are seeking is more than ten or twenty-five years old, argue that the
original sensitivities have eroded and protection is no longer required because release
would not cause harm to national security today.

•

A prohibition on classification in EO 12958 applies. Under the executive order, information
may not be classified to “conceal violations of law, inefficiency, or administrative error;”
“prevent embarrassment to a person, organization, or agency;” “restrain competition;” or
“prevent or delay the release of information that does not require protection in the interest
of the national security.”9 In addition, scientific research not related to the national security
may not be classified.10

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•

The information has not been properly marked or treated as classified. The executive
order requires that a document be properly marked as classified with the name of the
classifying authority and office that classified it, the level of classification, the reason for
classification (i.e., the category), and the declassification date. If only a portion of the record
is classified, the classified and unclassified sections or paragraphs must be clearly marked.
This requirement is particularly relevant if an agency releases a document redacted on the
basis of Exemption 1. Examine the document carefully to determine if any of the withheld
portions were not marked as classified or if the document itself lacks clear classification
markings.

•

The information has been publicly disclosed or is otherwise publicly available. Information
that has been publicly disclosed can no longer be considered classified because the agency
cannot successfully argue that its release would cause harm to national security. If the
information is found in other declassified documents or has been discussed publicly, such as
in a book or memoir or another agency publication, you can argue that at least those
segregable portions of the record that contain already public information should be
released. Attach any supporting materials you have, including copies of declassified
documents or publications that reference the material you are seeking.

Exemption 2: Internal Personnel Rules and Practices
Exempts information “related solely to the internal personnel rules and practices of an agency.”
Exemption 2 has two distinct components (Low 2 and High 2), either of which an agency may
rely on to withhold information.
The “Low 2” Exemption covers internal agency matters in which the public could not reasonably
be expected to have any interest. Examples of the type of information that can be withheld
under this exemption include:
• Administrative file markings.
• File numbers, internal report numbers, access numbers, and routing codes.
• Computer codes for internal systems.
The best way to challenge the Low 2 Exemption is to argue that the requested material cannot
be considered solely related to “internal personnel rules and practices” of the agency. Courts
have concluded, for example, that internal databases of information and some instructions and
communications between an agency and its staff or members of the public are not solely for
internal use and therefore are not covered by Exemption 2. As part of this argument, you should
try to show that there is, in fact, a public interest in the requested material such that it cannot
be considered solely internal.
The “High 2” exemption covers internal agency matters where disclosure would risk
circumvention of the law or an agency regulation. The most common circumstance where
agencies attempt to use the High 2 Exemption is law enforcement. For example, an agency may
withhold law enforcement manuals or internal instructions to staff about how to conduct law
enforcement activities.
Although this interpretation of Exemption 2 has been recognized by some courts, it is not clear
that this interpretation was intended by Congress when it enacted the FOIA. Therefore, it is

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important to argue that the information you are seeking is not related solely to internal matters
of the agency, but rather concerns the public and/or is of interest to the public.
When faced with a High 2 exemption claim, also consider another provision of the FOIA, which
requires that “administrative staff manuals and instructions to staff that affect a member of the
public” be made available for public inspection and copying automatically, without a FOIA
request.11 If you can argue that the material you are requesting is an internal manual,
instruction, or guidance document that affects the public, cite § 552(a)(2)(C) to support your
argument that Exemption 2 does not apply and that the information must be released.

Exemption 3: Information Exempt Under Other Laws
Exempts information that is “specifically exempted from disclosure by statute (other than
section 552b of this title), provided that such statute (A) requires that the matters be withheld
from the public in such a manner as to leave no discretion on the issue, or (B) establishes
particular criteria for withholding or refers to particular types of matters to be withheld.”
Exemption 3 is a complicated exemption because it actually encompasses a number of different
exemptions that are set forth in
laws other than the FOIA and
directed at a category of information held by a specific agency
or group of agencies. In order to
effectively challenge an Exemption 3 withholding, you have to
learn not only about the FOIA, but
also about the Exemption 3
statute(s) at issue.

FIGURE 5.4: LOCATING AN EXEMPTION 3
STATUTE IN THE U.S. CODE
The U.S. Code is a multi-volume publication containing the
text of all federal statutes.
Go to http://www.gpoaccess.gov/USCODE/
Search or browse for relevant section of United States Code.
How to read a citation to the U.S. Code:

50 U.S.C. § 403-3(1)(5)
/
Title number
within Code

\
United States
Code

| \
Section and subsection of
Code containing statute

An agency denying information under Exemption 3 should indicate in the denial letter which
statute was used to justify withholding. The first step is to locate and read the statute or portion
of the statute cited by the agency (see fig. 5.4).
There are two ways to approach challenging an Exemption 3 denial. The first involves a complex
legal argument that the statute claimed by the agency cannot properly be used as an Exemption
3 statute because it does not meet certain criteria developed by Congress and the courts. It is
unlikely that you will be able to make such an argument successfully in your appeal unless you
do in-depth legal research about the genesis of the statute and its formulation. The second
approach is to learn about what types of information the statute covers and argue that the
information you requested is not covered by statute and therefore cannot be withheld.
There are hundreds of Exemption 3 statutes that apply to agencies across the federal
government. The following are examples of a few commonly used Exemption 3 justifications for
withholding:
•

Intelligence sources and methods. The National Security Act directs the CIA (as well as now
the Director of National Intelligence (DNI)) to protect “intelligence sources and methods
from unauthorized disclosure.”12 Another portion of the statute says that the CIA and DNI
do not have to disclose “the organization, functions, names, official titles, salaries, or

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numbers of personnel employed by the agency.”13 These provisions may be used to
withhold information regardless of whether the information is properly classified under
Exemption 1.
•

National Security Agency information. The National Security Agency (NSA) is exempt from
disclosing information related to the organization or function of the agency or its
employees.14

•

Information from international sources. Another statute allows the Defense Department to
withhold information provided by a foreign government or international organization, if the
entity requests or requires that the information be withheld or kept confidential.15

•

Tax return information. A statute that controls the dissemination of income tax return
information permits the IRS to withhold tax returns and related materials under Exemption
3. Under this statute, as well, the IRS has no obligation to redact identifying information
from a tax return and provide the redacted version. “Return information” under the statute
includes a taxpayer’s identity, the nature, source, or amount of his income, payments,
receipts, deductions, exemptions credits, assets, liabilities, and other data, but does not
cover data that cannot be associated with a particular taxpayer.16

•

Grand jury records. Under the Federal Rules of Criminal Procedure, agencies may withhold
grand jury transcripts as well as information that would reveal the identities of witnesses or
jurors or other details about the testimony, strategy, or deliberations of the grand jury.17

Exemption 4: Confidential Business Information
Exempts “trade secrets and commercial or financial information obtained from a person and
privileged or confidential.”
In order to withhold information under Exemption 4, an agency must show that the information
is either (1) a trade secret or (2) commercial or financial information, obtained from a person,
which is privileged or confidential.
Trade Secrets
There is no definition in the FOIA for what constitutes a “trade secret,” but generally this term
applies to plans, formulas, processes, and the like that are commercially valuable, used in
business, and kept confidential. A narrow definition, adopted by some courts, defines trade
secret as “a secret, commercially valuable plan, formula, process, or device that is used for the
making, preparing, compounding, or processing of trade commodities and that can be said to be
the end product of either innovation or substantial effort.”18
Confidential Commercial Information
The standard test for whether information falls within the second part of Exemption 4 has three
parts. If you do not believe the information you are seeking satisfies one or more of these parts,
you should argue that it cannot be withheld.
First, agencies may only withhold information that is “commercial” or “financial” in nature.
These terms are defined in a straightforward way and essentially cover any information related
to commerce or profit making of a business or corporate entity. Information about the
operation of the business, including research, statistics, and sales, as well as information related

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to the design, development, and sale of products, business methods, or technical specifications,
are generally protected.
Second, the information must have been “obtained from a person” by the agency. The
exemption applies only to information provided to the government by a nongovernmental
entity or business. The government’s own confidentiality interests are protected by other FOIA
exemptions. However, “person” is very broadly defined and includes individuals as well as all
different types of private businesses, corporations, nonprofit organizations, and even foreign
governments. But any government-prepared documents that are based primarily on
information the government generated itself or gathered from outside sources (rather than on
information provided by a “person”) are not exempt under this provision.
Third, the information must be “privileged or confidential.” Generally, agencies rely on claims
that information is “confidential” because “privileged” information refers to specific legal
privileges that are generally covered by Exemption 5.
There is, however, a strict test for determining whether information is “confidential” under
Exemption 4. Information is confidential 1) if it has not been made publicly available or widely
distributed within the agency and 2) if its disclosure would either “impair the government’s
ability to obtain the necessary information in the future” or “cause substantial harm to the
competitive position of the person from whom the information was obtained.”19 If you can
argue that some of the information has been disclosed, make sure to include supporting
materials that document the disclosure.
In determining whether the record is confidential, you must consider whether it was voluntarily
submitted to the government and whether submission was required. That assessment depends
on whether the agency possesses the legal authority to require submission of the information,
such as through a statute, executive order, regulation, or “less formal mandate,” and whether
the agency has exercised its authority to obtain the information. The test does not depend on
whether the submitter is voluntarily participating in an agency program. If the information was
voluntarily submitted, the agency will be considering whether the information is “of a kind that
would customarily not be released to the public by the person from whom it was obtained.”20
If the submission is required, then the agency will consider whether disclosure of the
information would impair the government’s ability to obtain necessary information in the
future. The agency will look at criteria such as whether the disclosure would cause substantial
harm to the competitive position of the person from whom the information was obtained. As
part of its assessment, the agency will notify the submitter of the information about your FOIA
request and solicit the submitter’s views as to whether disclosure will cause substantial
competitive harm. This notice to the submitter is currently authorized by EO 12600. As you may
imagine, this process can be time consuming and will likely push the agency beyond the 20-day
response deadline.
In some instances, when the submitter is unable to persuade the government of the risk from
disclosure, the submitter may file a lawsuit to prevent the disclosure. This is called a “reverse
FOIA” lawsuit. Finally, the agency will also consider whether disclosure will harm other
governmental interests such as regulatory and legal compliance or program effectiveness.

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Exemption 4 has been the subject of a great deal of litigation over the years, and the law differs
somewhat in each jurisdiction. Thus, if you are likely to file an appeal of an Exemption 4 denial,
you should consult specialized resources that describe the law in your jurisdiction.

Exemption 5: Privileged Inter- or Intra-Agency Communications
Exempts “inter-agency or intra-agency memorandums or letters which would not be available by
law to a party other than an agency in litigation with the agency.”
Exemption 5 protects information that is covered by established legal privileges, such as those
that protect attorney–client and similar relationships, lawyers’ legal strategies, and deliberative
materials prior to a final decision by government officials. Because Exemption 5 protects the
government’s own privileges, disclosure of material covered by this exemption is discretionary,
and an agency may choose to release potentially exempt information if it does not foresee harm
from doing so.
Because of its vague language, Exemption 5 has been the subject of numerous lawsuits seeking
to clarify its application. When information is withheld under Exemption 5, a requester
challenging the denial must determine first whether the document itself falls under Exemption
5 and then whether the claimed privilege in fact protects the type of information requested.
Some of the arguments that may be applicable to an appeal of an Exemption 5 denial are
outlined below.
In its denial letter, the agency should state which part of Exemption 5 it has relied on to
withhold the requested information. If you do not know which privilege the agency has applied
(and the agency will not provide further explanation upon request), make relevant arguments
under each of the privileges that you think could potentially be applied to the information you
requested (for example, if the request involves an agency’s legal opinions on a given topic,
challenge the withholding under the deliberative process, attorney–client, and attorney work
product privileges).
Threshold Issue: Inter- or Intra-Agency Records
Exemption 5 applies to documents created by an agency to be transmitted internally within the
agency or to another agency. The exemption has also been held to apply to documents
generated by an outside party acting on behalf of the agency, such as a consultant.
If you believe that the records you are seeking were either provided to the agency by an outside
party (for example, an application or other submission from a corporation or member of the
public) or were created by the agency for an outside party (such as Congress or a foreign
government), provide any evidence you have to demonstrate that the records are not inter- or
intra-agency.
Privileges Covered by Exemption 5
Deliberative Process Privilege
The deliberative process privilege protects information that is both “predecisional” and
“deliberative,” meaning advice, recommendations, and opinions that are part of a consultative
decision-making process within the agency. This privilege is intended to encourage open and
frank deliberations on policy matters and to ensure that proposed policies or rationales are not
disclosed before they are finalized and adopted. When an agency withholds information

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pursuant to the deliberative process privilege, you may be able to make one or more the
following arguments:
•

The information is not “predecisional.” Predecisional documents are protected by Exemption 5, but postdecisional documents are not. This means that final opinions or administrative decisions are not protected and must be disclosed if not otherwise exempt.
Likewise, courts have held that all agency records that constitute the “working law” of the
agency, such as orders, decisions, interpretations, instructions, or guidelines affecting the
public cannot be protected by Exemption 5.
Drafts, proposed policies, or documents that are part of a back-and-forth process before
the final decision is made may be withheld under this privilege. However, in order to be
considered predecisional, a document must actually be part of the decision-making process,
for example, containing recommendations or opinions about prospective policies.
If the agency expressly adopts or incorporates deliberative materials in making its final
decision, those materials can no longer be protected. For example, if the Attorney General
announces a new policy and describes a legal opinion on which the agency relied in making
its decision about the policy, the legal opinion, although predecisional, can no longer be
withheld because it was incorporated into the final decision.

•

The information is not “deliberative.” Even if a document is predecisional, it can only be
withheld under Exemption 5 if it contains deliberative material, such as opinions or
recommendations, and not merely factual information. Factual information contained in a
predecisional document must be released unless it is “inextricably intertwined” with the
exempt portions.

Attorney–Client Privilege
The attorney–client privilege protects confidential communications between a client and his or
her attorney, where the communication is based on confidential information provided by the
client. The privilege has been held to apply to government attorneys; in this case, the agency is
considered the client. The attorney–client privilege covers facts as well as advice contained in a
protected communication.
In the government context, the attorney–client privilege protects only those communications
between agency officials and attorneys that are based on confidential information from the
agency and provided in order to obtain legal advice and that are maintained as confidential
(generally meaning that they are not disclosed beyond senior agency officials). The privilege
protects only those communications that concern a legal matter for which the agency client
sought professional legal advice. Neutral legal analyses that do not constitute advice or legal
conclusions that the agency applies in its dealings with the public are not privileged.
Keep in mind that while many attorneys work in federal agencies, not every agency document a
government attorney creates is privileged, and only those that constitute confidential legal
advice sought by the agency from its attorneys are exempted. When drafting your appeal,
therefore, you may be able to argue either that the information was not maintained as
confidential (particularly if you are aware that some of it was disclosed outside of the agency),
or that it did not constitute professional legal advice from a government attorney to his or her
agency client.

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Work Product Privilege
The attorney work product privilege protects records prepared by an attorney for litigation, in
particular where the records would reveal the litigation strategy. In order to withhold a record
under the work product privilege, the agency must show that the document was prepared in
anticipation of specific litigation (and not merely in the ordinary course of legal work at the
agency), by an attorney representing the government. The courts have interpreted this privilege
broadly, however, protecting a wide range of documents related to litigation.
If you believe that the record you requested does not relate to litigation or has segregable
portions of clearly factual information that do not disclose any legal reasoning or strategy, argue
for the agency to reconsider its decision on this basis.
Exemption 5 Waiver
In general, an agency may not withhold records under Exemption 5 if the agency has waived the
privilege by disclosing the records to third parties or others outside of the executive branch.
There are some exceptions to this rule, including where the agency has disclosed information to
another agency or to a member of Congress or was compelled by a court order or subpoena to
disclose the material. But it is generally the case that when an agency has disclosed the record
publicly or has repeatedly referred to information contained in the record in a public forum, it
can no longer assert the protection of Exemption 5. To appeal on this basis, be sure to include
supporting information showing public references to the record or information at issue.

Exemption 6: Personal Privacy
Exempts “personnel and medical files and similar files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy.”
Exemption 6 protects from disclosure “personnel and medical files and similar files,” but only
when disclosing the files “would constitute a clearly unwarranted invasion of personal privacy.”
Therefore, the agency must conduct a balancing test before it may withhold information under
Exemption 6. Although there is likely to be some invasion of privacy from the disclosure of
personal information contained in government files, the agency may withhold the information
only if it determines that the invasion of privacy is “clearly unwarranted” in light of the public
interest in disclosure and other countervailing factors.
Although Exemption 6 can be used to withhold entire records, often records will be released but
with personal information redacted pursuant to this exemption. If records responsive to your
request are withheld in whole or in part under Exemption 6, there are several arguments that
can be helpful in challenging the denial.
Types of Records
Despite the seemingly narrow language of Exemption 6, the universe of “similar files” beyond
personnel and medical files that are eligible for protection has been interpreted broadly. In
effect, any records that implicate privacy interests similar to those in personnel or medical files
and contain detailed information about an identifiable individual may be withheld.

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Clearly Unwarranted Invasion of Privacy
According to courts that have interpreted the “clearly unwarranted invasion of personal
privacy” language of Exemption 6, the exemption requires agencies to balance the privacy
interests against the FOIA’s purpose “to open agency action to the light of public scrutiny.”21
Moreover, the statute tilts the balance in favor of disclosure by requiring proof of a “clearly
unwarranted” invasion of privacy.
On appeal, you should make an argument about the public’s interest in the information you are
seeking and emphasize that the balance in your case clearly favors disclosure. The following
specific arguments may be relevant:
•

Information about public officials. The privacy interests of public officials are reduced
compared to those of private citizens whose information is contained in government
records. If you believe the information withheld contains personal details about a
government official, argue that the public interest in release is strong because the FOIA
allows the public to find out what their government is up to and because government
officials have limited privacy interests, particularly with regard to their official conduct.

•

Business information. It is generally the case that only individuals have privacy interests, so
business information should not be withheld under Exemption 6. In addition, courts have
held that disclosure of information about an individual’s business or professional activities
does not implicate privacy interests and so would not be protected under Exemption 6.

•

Insignificant privacy interest. Based on the facts you have about the requested information,
you may be able to argue that the privacy interests at stake are insignificant compared with
the public interest in disclosure. For example, courts have often found only minimal privacy
interest in individuals’ names alone, including names of federal employees and identities of
people who submitted comments, applied for federal grants, or made voluntary reports to
the agency. Although phone numbers, social security numbers, or other personally
identifying information about individuals will rarely be released, you may be able to argue
that the release of individuals’ names does not invade privacy in some circumstances and,
therefore, should not be redacted. Often, the names of agency officials or others involved
are key to understanding how the government was making policy or conducting activities.

•

Significant public interest. In general, the public interest considered on the other side of the
Exemption 6 balancing test focuses on the public’s understanding of agency actions and
policymaking processes as a way to exercise oversight and promote accountability. If you
believe that the information at issue will help to inform the public about agency conduct or
misconduct, argue why the public needs access to the information.
Keep in mind that you will generally not be able to satisfy this test if the information you are
seeking is for personal or commercial purposes only. Conversely, if you can show that
obtaining the information will help the public better understand government activities (a
particularly useful argument for journalists and others who will disseminate the information
broadly), you will have a good chance of satisfying the test if the privacy interests are
comparatively insignificant.

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Exemption 7: Law Enforcement Information
Exempts “records or information compiled for law enforcement purposes, but only to the extent
that the production of such law enforcement records or information: (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 information on a confidential basis, and, in the case of a
record or information compiled by a criminal law enforcement authority in the course of a
criminal investigation or by an agency conducting a lawful national security intelligence
investigation, information furnished by a confidential source, (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, or (F) could reasonably be expected to endanger the life or
physical safety of any individual.”
Threshold Issue: Records Compiled for Law Enforcement Purposes
Exemption 7 only protects records that are compiled for law enforcement reasons. The most
important issue to consider when challenging an Exemption 7 claim is whether the record(s) at
issue were in fact “compiled for law enforcement purposes.” In order to fall within Exemption 7,
the records must be related to a civil or criminal investigation or an agency administrative
enforcement proceeding. Criminal law enforcement agencies (like the FBI) can generally
withhold documents related to investigations conducted under federal laws or to maintain
national security, as long as the investigations reasonably fall within their law enforcement
duties. Other agencies that do not have law enforcement powers (such as the CIA, which is
prohibited from conducting domestic law enforcement activities) generally cannot use
Exemption 7 to withhold records related to an investigation.
Even if the requested information was in fact “compiled for law enforcement purposes,”
however, it is not exempted under Exemption 7 unless disclosure would lead to one of the
specific harms set forth in the subparts of this exemption. When faced with an Exemption 7
denial, carefully consider whether the disclosure of the requested records would in fact cause
one of these harms (discussed below); if not, they should be released.
Components of Exemption 7
Ex. 7(A): Interference with enforcement proceedings
Information may be withheld under Exemption 7(A) when disclosure could impede an
investigation or harm the government’s case in an ongoing proceeding. An agency generally
cannot withhold records related to an investigation that is complete and/or closed, unless the
government intends to reopen the investigation later. In addition, the agency may only withhold
information if there is actually an ongoing investigation or concrete likelihood of a future
investigation, but not if it merely speculates that there might be an investigation.
Agencies may justify withholding based on a range of different potential harms, including where
disclosure might discourage potential witnesses from testifying, provide the subject of the
investigation or prosecution with information about the government’s case, or interfere with
the agency’s ability to control the investigation.

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Ex. 7(B): Interference with right to fair trial
An agency may deny a request pursuant to Exemption 7(B) if the information (1) relates to a
civil or criminal trial or agency adjudication that is pending or imminent and (2) disclosure of the
material would interfere with the fairness of the proceedings. This exemption places a higher
burden on agencies than other subsections of Exemption 7, requiring a relatively strong
showing that disclosure would give one side an unfair advantage or would prejudice the
outcome of the case (for example, by affecting the judgment of jurors or the administrative
authority in the case).
Ex. 7(C): Unwarranted invasion of personal privacy
This exemption is closely related to Exemption 6 and also requires a balancing of public interest
against the potential invasion of privacy from disclosure. However, the standard for withholding
is somewhat lower than Exemption 6, because Exemption 7(C) requires only a showing of
“unwarranted invasion” of privacy rather than “clearly unwarranted invasion.”
Courts have generally found that this subpart of the exemption applies when a third party
requests law enforcement records about a private citizen that are held by the agency and do
not contain information about the agency or its activities.22 Examples of the types of records
that can generally be withheld are rap sheets or other records information about the criminal
history of an individual.23 Agencies are also permitted to categorically withhold names and
addresses contained in law enforcement records, unless that information is necessary to show
that the agency engaged in illegal activity.
This exemption also applies to information that, if disclosed, would personally embarrass an
individual referenced in a law enforcement file, especially information that would reveal the
names of individuals investigated but not charged with criminal activity. In situations like these,
the public interest supporting disclosure must be exceptional. As in Exemption 6, public officials
may have a diminished expectation of privacy under Exemption 7(C).
Ex. 7(D): Confidential sources
To permit withholding under Exemption 7(D), the records must have been compiled by a law
enforcement agency as part of the agency’s law enforcement duties. Pursuant to this
exemption, a law enforcement agency may withhold records containing information furnished
by a confidential source during the course of a criminal investigation. There is no time limit on
how long confidential source information may be withheld, even if many years have passed or if
the source is deceased. A “confidential source” can be an individual or an institution, such as a
foreign, state, or local law enforcement agency. Exemption 7(D) will not apply if the
confidentiality of the source has been breached, for example if the source appears to testify or
the identity of the source is otherwise publicly revealed.
Ex. 7(E): Investigation techniques and procedures
This exemption does not protect routine investigative techniques and procedures that are
already common knowledge (for example, ballistics tests, fingerprinting, eavesdropping, and
wiretapping). Agencies may only withhold materials that would reveal unique or secret
techniques and procedures or specific, unknown ways that existing techniques are being
employed for law enforcement purposes. This exemption also does not apply to administrative
staff manuals or instructions that affect members of the public, which fall within the FOIA’s
automatic disclosure provisions.

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Ex. 7(F): Danger to life or physical safety
This exemption applies when the release of law enforcement information may endanger
individuals, including law enforcement personnel, informants and sources, and members of the
public at large. Some courts have interpreted Exemption 7(F) broadly, finding that it may be
used to withhold information that the agency believes could be used by terrorists to plan an
attack. But at the very least, the information withheld must have been compiled for law
enforcement purposes, and there must be a clear connection between the information and the
potential harm.

Exemption 8: Financial Institutions Information
Exempts information “contained in or related to examination, operating, or condition reports
prepared by, on behalf of, or for the use of an agency responsible for the regulation or
supervision of financial institutions.”
Exemption 8 has been interpreted broadly to protect individual financial institutions as well as
the integrity of the financial industry as a whole. Although there is no settled definition of
“financial institutions,” it has generally been held to include banks, trust companies, investment
firms, and securities exchanges; the term is not limited to depository institutions. The
exemption can block disclosure even when the information does not relate to an institution’s
financial soundness or stability or is not part of any investigation. Use of the exemption also is
not limited to agencies that supervise the financial institution.

Exemption 9: Geological Information
Exempts “geological and geophysical information and data, including maps, concerning wells.”
Exemption 9 is rarely invoked or litigated. Courts have found significant overlap with Exemption
4. Exemption 9 has been used to provide a near-blanket exemption for oil well materials, but
the Interior Department has also cited it to apply to water wells. At least one court has held that
this exemption is to be construed narrowly and applied only to technical or scientific
information about wells, not proprietary information that may be otherwise exempted under
Exemption 4.

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APPEALS CHECKLIST
May I appeal? Determine whether the agency’s response is an “adverse determination”:
Records withheld in whole or in part
Delay
No records or inadequate search
Denial of fee waiver, preferred fee status, or expedited processing
Excessive fees
Rejection of request
Glomar response
Other decision that will impede access to records
When must I appeal? Most agencies allow at least thirty days; check response letter or agency
regulations for exact deadline.
Where do I send the appeal? Find appeal authority information in response letter or call
agency/check agency Web site to determine contact information for appeals.
How do I draft my appeal? Make sure to include the following in your appeal letter:
Statement of appeal
Background information about request and agency response, including copies of
correspondence
Substantive arguments: policy and/or legal
Supporting materials
Contact information
Have I made all applicable policy arguments?
Public interest
Information publicly available
Passage of time
Have I made all applicable legal arguments?
Inadequate search
Insufficient segregation of nonexempt materials
Exemptions improperly applied
Are there procedural issues for appeal?
Glomar response
Denial of fee waiver or fee status request
Denial of expedited processing
Improper rejection of request

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chapter six

Going to Court:
Litigating Your FOIA Request
MAY I LITIGATE?
If you are not satisfied with the agency’s decision on your FOIA request or if the agency has been
nonresponsive, you have the right to file a lawsuit in federal court under the FOIA. Often,
litigation will produce a strict schedule for review of the records and additional review by
different agency officials of the agency’s exemption claims. There are many considerations that
may affect your decision to
litigate your FOIA request. The
FIGURE 6.1:
following is a brief introduction,
ADDITIONAL RESOURCES FOR FOIA LITIGATION
and is not intended to be a
This chapter is not a comprehensive guide to FOIA litigation.
comprehensive guide to FOIA
Please consult the following sources and/or an attorney for
litigation.24
Keep in mind that you cannot
litigate a denial of information
in response to an MDR request.
(See ch. 4 for more information
about appealing MDR denials.)

additional information:
• Litigation Under the Federal Open Government Laws 2008
(Harry A. Hammitt, et al, 2008).
• Department of Justice FOIA Guide (March 2007),
http://www.usdoj.gov/oip/foia_guide07.htm.
• Resources for FOIA Legal Research on the Internet (from
Public Citizen), http://www.citizen.org/litigation/free_
info/foic_lr/.

SHOULD I LITIGATE?
Bringing a lawsuit requires a commitment of time and resources. A private attorney will often
require you to provide an upfront retainer for his or her work. If you are successful in your suit,
it may be possible in some cases to recoup the attorney’s fees from the government. Although
you may litigate a case without an attorney, it may be difficult to make an impact on your own if
you are not familiar with case law and court procedures.
In making the decision to litigate, remember that judges do not look kindly on frivolous cases.
You must consider whether your dispute is worth bringing to court. How important are the
records you are seeking? Is the agency engaging in a pattern or practice that is systematically
interfering with your research and that is in violation of the law? Are you able to gain support
from other organizations or FOIA requesters to help explain to the court the importance of the
case? Do you know enough about the denied records to make a compelling case in court?

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WHAT ISSUES MAY I LITIGATE?
Under the FOIA and the Administrative Procedure Act, a requester may litigate when he or she
believes that the agency has improperly withheld agency records that should have been
disclosed. In addition, requesters may litigate over fee questions (such as when the agency
charges excessive fees or denies a fee waiver) or any other agency decision that impairs the
requester’s ability to obtain the requested information (for example, excessive delay,
unreasonable interpretation of the request, inadequate search for records, etc.).

WHEN MAY I FILE A FOIA LAWSUIT?
Before bringing a FOIA lawsuit, the requester first must exhaust his or her administrative
remedies, which means receiving the agency’s denial, filing an administrative appeal, and
receiving a denial of the appeal. Alternatively, you may file a lawsuit without having filed an
administrative appeal if the agency fails to comply with any of the FOIA’s time limits (twenty
working days to respond to an initial request or to respond to an administrative appeal). In some
cases it may be effective to go to court immediately after the twenty-day initial request deadline
has passed. However, in most cases it is productive to talk with the agency and wait a
reasonable time for the agency to process the request rather than going to the time and
expense of litigation before the agency has made its final decision.
There is a maximum time limit for filing a FOIA lawsuit (called a “statute of limitations”). The
statute of limitations says that you may not go to court to challenge an agency’s decision on
your FOIA request if more than six years have passed since the agency’s response to your appeal
(or since the date your administrative remedies were exhausted, i.e., twenty business days after
filing, if there has been no agency action on the request). It is important to note that when an
agency does not respond to a request at all and no administrative appeal is filed within six years,
the statute of limitations has expired, and the requester will not be permitted to file a lawsuit.
However, the requester may simply refile the same request and then litigate the agency’s failure
to respond and/or subsequent denial.

WHERE MAY I FILE A FOIA LAWSUIT?
The FOIA provides that a requester may file a FOIA lawsuit in the federal district court where the
requester lives or works or in the district where the records are located (i.e., the agency office
that has the records), or in the district court in Washington, DC.

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Endnotes
1

Dep’t of Justice v. Tax Analysts, 492 U.S. 136 (1989).
Openness Promotes Effectiveness in our National Government Act of 2007, Pub. L. No. 110-175, § 3 (2008).
3
5 U.S.C. § 552(a)(4)(A)(iii).
4
See, e.g., 28 CFR § 16.5(d).
5
Weisberg v. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983).
6
Dep’t of Air Force v. Rose, 425 U.S. 352, 360-61 (1976).
7
FBI v. Abramson, 456 U.S. 615, 630 (1982).
8
68 Federal Register 15315-34 (Mar. 28, 2003).
9
EO 12958, as amended, sec. 1.7(a).
10
EO 12958, as amended, sec. 1.7(b).
11
5 U.S.C. § 552(a)(2)(C).
12
50 U.S.C. § 403-3(1)(5).
13
50 U.S.C. § 403g.
14
50 U.S.C. § 402.
15
10 U.S.C. § 130c.
16
26 U.S.C. § 6103.
17
Federal Rules of Criminal Procedure, Rule 6(e).
18
Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1288 (D.C. Cir. 1983).
19
National Parks & Conservation Association v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974).
20
Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 879 (D.C. Cir. 1992) (en banc), cert.
denied, 507 U.S. 984 (1993).
21
Rose, 425 U.S. at 372.
22
Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 780 (1989).
23
SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991).
24
For a comprehensive guide to FOIA litigation, see Harry A. Hammitt et al, Litigation Under the Federal Open
Government Laws 2008 (2008).
2

- 54 -

appendix one

Glossary of Key Terms and Acronyms
Administrative Appeal: A submission made by a requester asking an agency to reconsider its initial
adverse determination on his or her request and making arguments as to why that decision was
improper.
Agency: An agency within the meaning of the FOIA (i.e., one required to respond to FOIA requests) is
“any executive department, military department, Government corporation, Government controlled
corporation, or other establishment in the executive branch of the Government (including the Executive
Office of the President), or any independent regulatory agency” (5 U.S.C. § 552(f)(1)). This definition
includes most executive branch agencies, except those components of the Executive Office of the
President the primary function of which is to advise the president. Congress, the courts, and the
president himself are not agencies subject to the FOIA.
Agency Record: Courts have defined an “agency record” as any record that is created or obtained by the
agency and is in the control of the agency at the time the request is made. The FOIA covers records
maintained by the agency in any format, including electronic.
Attorney–Client Privilege: An evidentiary privilege that protects confidential communications between
a client and his or her attorney when the communications are based on confidential information
provided by the client in order to obtain legal advice. The attorney–client privilege is incorporated into
FOIA Exemption 5 and applies to communications between agency officials and agency attorneys.
Automatic Declassification: Process established by Executive Order (EO) 12958, as amended, whereby
records of permanent historical value that are more than twenty-five years old are automatically
declassified. The EO permits agencies to designate specific information as exempt from automatic
declassification if release could damage the national security. Records that are automatically declassified
do not immediately become available to the public, but rather must first be processed for release by the
National Archives.
Classified Information (or Security Classified Information): Information that, if released, could cause
harm to national security within the meaning of the Executive Order on Classification (currently, EO
12958, as amended by EO 13292) and that has been classified by an appropriate authority. Classification
of information imposes restrictions on access to the information by individuals within and outside of the
government. There are three classification levels: confidential, secret, and top secret.
Commercial Requester: FOIA requester category that covers companies or individuals requesting
information for a commercial, trade, or profit-seeking purpose. A commercial requester pays the
maximum processing fees for search, review, and duplication.

- 55 -

Compelling Need: In order to be granted expedited processing, a requester must show “compelling
need,” defined as circumstances where “failure to obtain requested records on an expedited basis under
this paragraph could reasonably be expected to pose an imminent threat to the life or physical safety of
an individual” or where there is an “urgency to inform the public concerning actual or alleged Federal
Government activity” (5 U.S.C. § 552(a)(6)(E)(v)).
Deliberative Process Privilege: A privilege protecting the policymaking process in order to encourage
open discussion among government decision makers. The deliberative process privilege is incorporated
into FOIA Exemption 5 and permits withholding of records that are both predecisional and deliberative,
such as advice, recommendations, and opinions that are part of an agency decision-making process.
Electronic Reading Room: A portion of an agency Web site that makes available electronic versions of
certain records that are required to be disclosed under the FOIA (5 U.S.C. § 552(a)(2)). The categories of
information that must be in the electronic reading room include final opinions and orders made in the
adjudication of cases by the agency, policy statements and interpretations adopted by the agency,
administrative staff manuals and instructions that affect the public, and frequently requested records.
Executive Order 12958, as amended by EO 13292: Executive order governing classification of
information. See “classified information.”
Executive Order 13392: Executive order entitled “Improving Agency Disclosure of Information,” issued
by President Bush on December 14, 2005, and directing federal agencies to improve their FOIA
operations through greater efficiency and a new approach to FOIA customer service.
Exemption: The FOIA contains nine specifically enumerated exemptions that set forth the bases for
withholding information requested by a member of the public under the FOIA. The government agency
bears the burden of demonstrating that information falls within one of the nine exemptions.
Exemption 2 “Low”: Component of FOIA Exemption 2 that protects internal agency matters in which the
public could not reasonably be expected to have any interest.
Exemption 2 “High”: Component of FOIA Exemption 2 that protects internal agency matters where
disclosure would risk circumvention of the law or agency regulation, although not all courts have
accepted this interpretation of the FOIA statutory language.
Exhaustion of Remedies: Before filing a lawsuit in federal court, a requester must exhaust all
administrative remedies by filing an administrative appeal. The requester may be deemed to have
exhausted his or her remedies if the time period for the agency to process the request or appeal has
passed and the agency has not responded.
Expedited Processing: The FOIA requires agencies to provide for expedited processing of requests
where there is a “compelling need” or in other circumstances determined by each agency. The agency
must make a determination whether to grant expedited processing within ten days and must process
expedited requests “as soon as practicable.”
Federal Register: The official daily publication for rules, proposed rules, and notices of federal agencies
and organizations, as well as executive orders and other presidential documents.

- 56 -

Fee Status (or Fee Categories): The FOIA specifies three different categories of FOIA requester. A
requester’s status (i.e., placement within one of the specified categories) determines the type of fees
the requester may be charged. The fee status categories include: commercial requesters (search,
review, and duplication fees); educational or noncommercial scientific institution or representative of
the news media requesters (duplication fees only); and all other requesters (search and duplication fees)
(5 U.S.C. § 552(a)(4)(A)(ii)).
Fee Waiver (or Public Interest Fee Waiver): The FOIA directs agencies to waive or reduce fees charged
to a requester “if disclosure of the information is in the public interest because it is likely to contribute
significantly to public understanding of the operations or activities of the government and is not
primarily in the commercial interest of the requester” (5 U.S.C. § 552(a)(4)(A)(ii)(II)).
Final Determination: An agency’s final decision on a FOIA request, including the decision on whether or
not to release the requested information.
Glomar: An agency response to a FOIA request in which the agency refuses to confirm or deny the
existence of the requested records. The Glomar response is invoked when an acknowledgement that the
records exist would itself cause harm protected by one of the FOIA exemptions (generally, national
security or privacy).
Historical Record: Term used in this guide and elsewhere to refer generally to government records older
than twenty-five years, the point at which many agency records are transferred to NARA and classified
records are automatically declassified under EO 12958.
Information Security Oversight Office (ISOO): Office responsible to the president for policy and
oversight of the government-wide security classification system and the National Industrial Security
Program. ISOO is a component of NARA and receives its policy and program guidance from the National
Security Council (NSC).
Interagency Security Classification Appeals Panel (ISCAP): Created by EO 12958 in 1995, ISCAP is a sixmember body consisting of senior level representatives appointed by the Departments of State,
Defense, and Justice; the Central Intelligence Agency; NARA; and the Assistant to the President for
National Security Affairs, with a chair appointed by the President. ISCAP’s functions include deciding
mandatory declassification review appeals from requesters whose requests have been denied at the
agency level; ruling on appeals filed under sec. 1.8 of EO 12958; and approving, denying, or amending
agency exemptions from automatic declassification.
Law Enforcement Proceedings: Under FOIA Exemption 7, agencies may withhold information “compiled
for law enforcement purposes,” which includes both civil and criminal judicial proceedings as well as
administrative enforcement proceedings.
Mandatory Declassification Review (MDR): A process established in EO 12958, as amended, which
allows a member of the public to request that an agency review a classified record to determine
whether continued classification is warranted under the executive order or whether some or all of the
record can be declassified and released. The MDR process operates much like the FOIA process, with
requests and administrative appeals; however, an MDR requester may file an additional appeal with
ISCAP but may not file a lawsuit challenging a denial.

- 57 -

No Records: Response to a FOIA request when an agency conducts a search and does not find any
agency records that satisfy the request. Requesters may appeal a “no records” response and require the
agency to conduct a new search.
Operational Files: Designated intelligence agency files that are excluded from search and review under
the FOIA.
Predecisional: Records related to a specific decision making process that are drafted prior to a final
decision being made within the agency. Records that are predecisional may be exempt under the
deliberative process privilege of Exemption 5, but postdecisional documents like final opinions and
administrative decisions cannot be withheld under that exemption.
Presidential Records Act (PRA): Statute governing the preservation and release of official records of
presidents and vice presidents (beginning with the Reagan administration). The PRA mandates that all
presidential records become the property of the public, to be managed by NARA after the president
leaves office, and establishes a framework for public access to the records beginning five years after the
end of the administration (44 U.S.C. §§ 2201-2207).
Privacy Act: Statute that restricts disclosure of personally identifiable information in government
records and establishes a system for individuals to access records about themselves as well as to correct
government records that are inaccurate or incomplete (5 U.S.C. § 552a).
Privacy Waiver: Waiver that an agency may require a FOIA requester to submit before the agency will
release personal information about an individual.
Public Interest: When considering the application of Exemptions 6 and 7(C), the Supreme Court has said
that the relevant public interest to be balanced against the privacy interest is “the preservation of the
basic purpose of the Freedom of Information Act ‘to open agency action to the light of public scrutiny’”
(Dep’t of Air Force v. Rose, 426 U.S. 352, 372 (1976)).
Redaction: Process used by agencies to delete or black out exempted information from records that
must otherwise be released under the FOIA.
Representative of the News Media: Category of requester that is entitled to pay reduced fees
(duplication costs only) for FOIA request processing, defined in the FOIA as “[a]ny person or entity that
gathers information of potential interest to a segment of the public, uses its editorial skills to turn the
raw materials into a distinct work, and distributes that work to an audience” (5 U.S.C. § 552(a)(4)(A)(ii)).
Segregable: Under the FOIA, agencies are required to release all segregable, nonexempt information
within a document. This “segregability requirement” prevents agencies from withholding entire
documents if only a portion is exempt from release. Agencies are not required to segregate exempt
information when doing so would leave no comprehensible information or where the exempt and the
nonexempt information is “inextricably intertwined.”
Statute of Limitations: A time limit for suing in a civil case based on the date when the claim first arose.
Under the statute of limitations, FOIA cases must be filed within six years after the agency’s decision on
the FOIA request or the date when administrative remedies were exhausted if the agency has not acted
on the request.

- 58 -

Trade Secret: Some courts have cited a broad definition covering virtually any business information that
provides a competitive advantage. But the DC Circuit Court of Appeals has announced a narrower
definition—“a secret, commercially valuable plan, formula, process, or device that is used for the
making, preparing, compounding, or processing of trade commodities and that can be said to be the end
product of either innovation or substantial effort” (Pub. Citizen Health Research Group v. FDA, 704 F.2d
1280, 1288 (D.C. Cir. 1983)).
Unusual Circumstances: Basis on which agencies can claim a ten-day extension beyond the twenty
business day processing deadline, including a voluminous request or the need to consult with other
offices or agencies about the request.
Work Product Privilege: An evidentiary privilege, incorporated into FOIA Exemption 5, which protects
from disclosure records prepared by an attorney in anticipation of or for the purpose of litigation. To
withhold information under the FOIA, an agency must show that the record was prepared in anticipation
of a specific lawsuit, by an attorney representing the government.

- 59 -

- 60 -

appendix two

Federal Agencies Subject to the FOIA
FEDERAL DEPARTMENTS
Department of Agriculture
Department of Commerce
Department of Defense
Department of Education
Department of Energy
Department of Health and Human Services
Department of Homeland Security
Department of Housing and Urban Development
Department of the Interior
Department of Justice
Department of Labor
Department of State
Department of Transportation
Department of the Treasury
Department of Veterans Affairs
FEDERAL AGENCIES
Agency for International Development
American Battle Monuments Commission
Amtrak (National Railroad Passenger Corporation)
Broadcasting Board of Governors
Central Intelligence Agency
Chemical Safety and Hazard Investigation Board
Commission on Civil Rights
Committee for Purchase From People Who Are Blind or Severely Disabled
Commodity Futures Trading Commission
Consumer Product Safety Commission
Corporation for National Service
Court Services and Offender Supervision Agency
Defense Nuclear Facilities Safety Board
Environmental Protection Agency
Equal Employment Opportunity Commission
Executive Office of the President
Council on Environmental Quality
Office of Administration (in dispute)
Office of Management and Budget
Office of National Drug Control Policy
Office of Science and Technology Policy

- 61 -

Office of the United States Trade Representative
Export-Import Bank
Farm Credit Administration
Farm Credit System Insurance Corporation
Federal Communications Commission
Federal Deposit Insurance Corporation
Federal Election Commission
Federal Energy Regulatory Commission
Federal Housing Finance Board
Federal Labor Relations Authority
Federal Maritime Commission
Federal Mediation and Conciliation Service
Federal Mine Safety and Health Review Commission
Federal Open Market Committee
Federal Reserve System
Federal Trade Commission
General Services Administration
Institute of Museum and Library Services
Inter-American Foundation
Legal Services Corporation
Merit Systems Protection Board
Millennium Challenge Corporation
National Aeronautics and Space Administration
National Archives and Records Administration
National Capital Planning Commission
National Credit Union Administration
National Endowment for the Arts
National Endowment for the Humanities
National Indian Gaming Commission
National Labor Relations Board
National Mediation Board
National Science Foundation
National Transportation Safety Board
Nuclear Regulatory Commission
Occupational Safety and Health Review Commission
Office of the Director of National Intelligence
Office of Federal Housing Enterprise Oversight
Office of Government Ethics
Office of Personnel Management
Office of Special Counsel
Overseas Private Investment Corporation
Peace Corps
Pension Benefit Guaranty Corporation
Postal Rate Commission
Railroad Retirement Board
Securities and Exchange Commission
Selective Service System
Small Business Administration

- 62 -

Social Security Administration
Surface Transportation Board
Tennessee Valley Authority
United States Copyright Office
United States International Boundary and Water Commission
United States International Trade Commission
United States Postal Service
United States Trade and Development Agency

- 63 -

- 64 -

appendix three

Sample Request Letters
SAMPLE FOIA REQUEST LETTER
Agency Head [or Freedom of Information Act Officer]
Name of Agency
Address of Agency
City, State, Zip Code
Re: Freedom of Information Act Request
Dear ______________:
This is a request under the Freedom of Information Act. I hereby request copies of the following records
[or all records containing the following information]: [IDENTIFY RECORDS OR INFORMATION]
[ATTACH SUPPORTING DOCUMENTS]
As the FOIA requires, please release all reasonably segregable nonexempt portions of documents.
[INCLUDE ARGUMENTS FOR RELEASE, IF APPLICABLE.]
In order to help to determine my status to assess fees, you should know that I am:
[INSERT REQUESTER DESCRIPTION, for example:
- an individual seeking information for personal use and not for commercial use.
- a representative of the news media affiliated with the ___________ newspaper/magazine/
television station/Web site/etc., and this request is made as part of news gathering activity and
not for commercial use.
- affiliated with an educational or noncommercial scientific institution, and this request is made
for a scholarly or scientific purpose and not for commercial use.
- affiliated with _________ corporation and seeking information for the company's business.]
[Optional] I request a waiver of all fees for this request. Disclosure of the requested information to me is
in the public interest because it is likely to contribute significantly to public understanding of the
operations or activities of the government and is not primarily in my commercial interest. [Include a
specific explanation.]
I am willing to pay fees for this request up to a maximum of $_____. If you estimate that the fees will
exceed this limit, please inform me before processing my request.
If you have any questions regarding this request, please contact me at [PHONE and/or E-MAIL]. I look
forward to receiving your response within the twenty day statutory time period. Thank you for your
consideration of this request.
Sincerely,

- 65 -

SAMPLE MDR REQUEST LETTER
Agency Head [or MDR Officer]
Name of Agency
Address of Agency
City, State, Zip Code
Re: Mandatory Declassification Review Request
Dear ______________:
This is a request for a mandatory declassification review, under the terms of Executive Order 12958, as
amended, of the following:
[IDENTIFY RECORDS OR INFORMATION]
If you regard these documents as potentially exempt from disclosure requirements, I request that you
nonetheless exercise your discretion to disclose them. Please release all reasonably segregable
nonexempt portions of documents. Furthermore, to permit me to reach an intelligent and informed
decision whether or not to file an administrative appeal of any denied material please describe any
withheld portions and explain the basis for your claims.
If you have any questions regarding the identity of these records, their location, the scope of the request
or any other matters, please contact me at: [insert phone number or e-mail].
I look forward to receiving your response.
Sincerely,

- 66 -

appendix four

How to Read Agency Documents
Government documents can provide a wealth of information on the types of records an agency
maintains, how an agency is organized, how communications are routed through an agency, and the
existence of other documents to request under the FOIA. It is useful to learn how to read government
documents in order to identify these types of clues. Below are three examples: a Department of State
cable, a Department of Defense memorandum, and a Defense Intelligence Agency cable.

- 67 -

DEPARTMENT OF STATE CABLE
1
3

2

5
4

7

6
9

8

- 68 -

1

“Unclassified” indicates the document in this form (with excisions) has been declassified
and cleared for public release.

2

“Released in Part” indicates part of the document has been approved for release to the
public. However, part remains withheld from public disclosure based on the classification
categories in EO 12958, as amended.

3

4

5

6

7

8

9

“Islama 06752” is the cable number of the document. It indicates the cable was sent from
the American Embassy in Islamabad, Pakistan.
Cable distribution list—This cable was sent from the American Embassy in Islamabad (“Fm
Amembassy Islamabad”) to the Secretary of State (“To Secstate Washdc”) for immediate
distribution. “Info” indicates that copies were sent to the embassies or consulates in
London, Moscow, Riyadh, and Peshawar.

“281200Z Mar 90” indicates the date and time of the creation of the document, this is
known as the cable's “date-time group,” or DTG. Standard format lists the date and time of
processing in Zulu time (GMT), indicated by the Z at the end of the date-time sequence,
followed by the month in tri-letter abbreviation and the two-digit year. This document was
created 12:00 p.m. GMT March 28, 1990.

“Decaptioned” indicates the strict distribution restrictions initially placed on the EXDIS
document (see below) have been lifted. The marking of “Decaptioned” indicates the
document is currently available for wider distribution even though it was initially highly
restricted.

“EXDIS” indicates "exclusive distribution to officers with essential need to know." This
caption limits distribution to senior officials, and is used for highly sensitive cables sent
between the White House, the Secretary of State, Deputy Secretary, under secretaries and
chiefs of mission.
“REF” stands for “reference.” These are the numbers for any cables referred to in this
document. In this instance, there are two such cables (From the State Department, No.
95642, and from the American Consulate in Peshawar, No. 571).
“TAGS” stands for “Traffic Analysis by Geography and Subject.” Used judiciously, these
abbreviations can be a very useful means of identifying cables that are relevant to your
research.

- 69 -

DEPARTMENT OF DEFENSE MEMORANDUM

1
2

3

4

5

7

6

- 70 -

1

Distribution of the document at the Department of State. This is the list of bureaus
within the State Department that received a copy of the document.

2

NODIS indicates “messages of highest sensitivity” at the Secretary of State level. This
caption limits distribution to the intended recipient only, unless permission is given
by the executive secretary for wider distribution.

3

4

“NODIS review, caption removed” indicates that the document was downgraded on
July 31, 1978. However, the document was still classified as “Top Secret” until it was
reviewed and released under either the FOIA or MDR.
Department of State filing information. DEF indicates that this is a document about
defense issues. “12” indicates it deals with nuclear issues, and “FR” indicates it deals
with France. XR indicates it is a cross reference with the document number DEF 12
US.

5

Department of Defense Top Secret tracking number.

6

This “OSD Rcy No. 1” indicates that this document is copy #1 of a limited set of
original copies produced by the Office of the Secretary of Defense.

7

Indicates this document is exempt from automatic declassification review, which
means it would not automatically be reviewed for release after twenty-five years.

- 71 -

DEFENSE INTELLIGENCE AGENCY CABLE

1

3

2
4

9

5
6
7

8

- 72 -

1

The document was classified “Secret” before declassification. The word “Secret” has
been crossed out to indicate that it has been declassified.

2

The date and time of transmission. This document was transmitted on December 24,
1997, at 11:54 GMT.

3

The origin of the document has been excised.

4

The report was transmitted to the DIA in Washington, but copies were also sent to
several other offices, some of which are classified.

5

“IIR”—Intelligence Information Report. Serial Number—The IIR number is normally
withheld under FOIA exemption (b)(2). A typical IIR number consists of ten digits.

6

The subject line is the de facto title of the document.

7

This document contains raw, unevaluated intelligence

8

“DOI”—Date of Information. The information in this cable was current as of the date
given—in this case, November 17, 1997.

9

These numbers refer to the exemptions that justify further withholding of the
information blacked out in the document.

- 73 -

- 74 -

appendix five

Additional Resources
LAWS AND EXECUTIVE ORDERS
The Freedom of Information Act, 5 U.S.C. § 552 (see appendix 6 for text)
http://www.usdoj.gov/oip/amended-foia-redlined.pdf
The Privacy Act of 1974, 5 U.S.C. § 552a
http://www.usdoj.gov/oip/privstat.htm
The Presidential Records Act (PRA) of 1978, 44 U.S.C. § 2201-2207
http://www.archives.gov/presidential-libraries/laws/1978-act.html
Executive Order 12958 (as amended) on Classified National Security Information
http://www.archives.gov/isoo/policy-documents/eo-12958-amendment.html
Executive Order 13392 on Improving Agency Disclosure of Information
http://www.whitehouse.gov/news/releases/2005/12/print/20051214-4.html
FOIA Legislative History, from the National Security Archive
http://www.gwu.edu/~nsarchiv/nsa/foialeghistory/legistfoia.htm

AGENCY INFORMATION
Links to Federal Agencies’ FOIA Web Sites
http://www.usdoj.gov/oip/other_age.htm
Principal FOIA Contacts at Federal Agencies
http://www.usdoj.gov/oip/foiacontacts.htm
A – Z Index of US Government Departments and Agencies
http://www.usa.gov/Agencies/Federal/All_Agencies/index.shtml
The US Government Manual—Official handbook of the Federal Government, which provides
comprehensive information on legislative, judicial, and executive branch agencies.
http://www.gpoaccess.gov/gmanual/index.html

- 75 -

FOIA RESOURCES
Governmental Resources
Department of Justice FOIA Guide (March 2007)—An extensive guide to the Act's exemptions
and procedural requirements.
http://www.usdoj.gov/oip/foia_guide07.htm
Federal Agencies’ Annual FOIA Reports to Congress
http://www.usdoj.gov/oip/04_6.html
Your Right to Federal Records—A 2006 publication of the Department of Justice and the
General Services Administration.
http://www.pueblo.gsa.gov/cic_text/fed_prog/foia/foia.htm
A Citizen's Guide to the FOIA—A 2005 publication of the House Committee on Government
Reform.
http://www.fas.org/sgp/foia/citizen.html
FOIA Post—A Web-based newsletter published by the Department of Justice, containing FOIA
information and guidance for federal agencies.
http://www.usdoj.gov/oip/foiapost/mainpage.htm
Nongovernmental Resources
Access Reports—Newsletter publication that covers freedom of information and privacy issues,
tracking policy trends while summarizing and analyzing court decisions, legislation (federal and
state), regulations, and agency guidance.
http://www.accessreports.com/
Litigation Under the Federal Open Government Laws 2008, Harry A. Hammit et al, (Electronic
Privacy Information Center, 2008).
How To Use The Federal FOI Act, 9th Edition—From the Reporters Committee for Freedom of
the Press, 2004.
http://www.rcfp.org/foiact/
Federal FOI Act Letter Generator
http://www.rcfp.org/foi_letter/generate.php
The Freedom of Information Act: A User’s Guide—From Public Citizen, 2005.
http://www.citizen.org/documents/FOIABrochureWEB.pdf
Aids for Drafting FOIA Requests
http://www.citizen.org/litigation/free_info/foic_aids/index.cfm
Significant Judicial Decisions Interpreting the FOIA
http://www.citizen.org/litigation/free_info/foic_lr/foiacases/index.cfm

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Resources for FOIA Legal Research on the Internet
http://www.citizen.org/litigation/free_info/foic_lr/index.cfm
National Freedom of Information Coalition (NFOIC)—A network of state FOIA advocates that
awards grants, holds events, and provides state and federal FOIA resources.
http://www.nfoic.org/
Sunshine in Government Initiative—Coalition of media groups committed to promoting policies
that ensure the government is accessible, accountable, and open.
http://www.sunshineingovernment.org/
Collaboration on Government Secrecy—Project based at the Washington College of Law of
American University devoted to openness in government, which provides extensive resources
on FOIA legislation, litigation, and news.
http://www.wcl.american.edu/lawandgov/cgs/
Sunshine Week—National initiative led by the American Society of Newspaper Editors to open a
dialogue about the importance of open government and freedom of information. Web site
provides information about annual events as well as FOIA resources.
http://www.sunshineweek.org/
Secrecy News—A publication of the Federation of American Scientists’ Project on Government
Secrecy which provides informal coverage of new developments in secrecy, security, and
intelligence policies, as well as links to new acquisitions on its Web site.
E-mail newsletter – http://www.fas.org/sgp/news/secrecy/index.html
Blog format – http://www.fas.org/blog/secrecy/
FOI Listserv—E-mail discussion group focusing on access to public records, closure of
governmental meetings, trends in legislation, and other issues about the public's access to
government records and meetings.
http://www.nfoic.org/resources/foil.html

MDR AND CLASSIFICATION RESOURCES
Interagency Security Classification Appeals Panel—The Interagency Security Classification
Appeals Panel (ISCAP) provides the public and users of the classification system with a forum for
further review of classification decisions and handles appeals from MDR requests.
http://www.archives.gov/isoo/oversight-groups/iscap/index.html
Information Security Oversight Office—The Information Security Oversight Office (ISOO) is a
component of NARA that is responsible to the president for policy and oversight of the
government-wide security classification system and the National Industrial Security Program.
http://www.archives.gov/isoo/

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GENERAL GOVERNMENT INFORMATION RESOURCES
Federal Register—The Federal Register is the official daily publication containing rules,
proposed rules, and notices of federal agencies and organizations, as well as executive orders
and other presidential documents.
http://www.gpoaccess.gov/fr/index.html
National Archives and Records Administration—Independent federal agency charged with
preserving and providing public access to government and historical records, including those
from executive branch agencies as well as Congress and the courts.
http://www.archives.gov/
Government and Public Libraries—List of national, federal agency, and local libraries as well as
online library databases operated by the US government.
http://www.usa.gov/Topics/Reference_Shelf/Libraries.shtml
National Security Archive—An independent nongovernmental research institute and library
located at The George Washington University, the Archive collects and publishes declassified
documents obtained through the Freedom of Information Act.
http://www.nsarchive.org
Project on Government Secrecy, Federation of American Scientists—Project working to
challenge excessive government secrecy and promote public oversight by publishing declassified
records and extensive resources about government secrecy.
http://www.fas.org/sgp/index.html
governmentdocs.org—This site allows users to browse, search, and review hundreds of
thousands of pages of government documents acquired through FOIA and other public
disclosure laws.
http://governmentdocs.org/
Governmentattic.org—Provides electronic copies of hundreds of interesting federal
government documents obtained under the Freedom of Information Act.
http://www.governmentattic.org
The Memory Hole—A Web site dedicated to preserving material that is in danger of being lost,
is hard to find, or is not widely known, including government files, court documents,
congressional reports, and other governmental and non-governmental documents.
http://www.thememoryhole.org/

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appendix six

The Freedom of Information Act
5 U.S.C. § 552
§ 552. Public information; agency rules, opinions, orders, records, and proceedings
(a) Each agency shall make available to the public information as follows:
(1) Each agency shall separately state and currently publish in the Federal Register for the
guidance of the public—
(A) descriptions of its central and field organization and the established places at which,
the employees (and in the case of a uniformed service, the members) from whom, and
the methods whereby, the public may obtain information, make submittals or requests,
or obtain decisions;
(B) statements of the general course and method by which its functions are channeled
and determined, including the nature and requirements of all formal and informal
procedures available;
(C) rules of procedure, descriptions of forms available or the places at which forms may
be obtained, and instructions as to the scope and contents of all papers, reports, or
examinations;
(D) substantive rules of general applicability adopted as authorized by law, and
statements of general policy or interpretations of general applicability formulated and
adopted by the agency; and
(E) each amendment, revision, or repeal of the foregoing.
Except to the extent that a person has actual and timely notice of the terms thereof, a person
may not in any manner be required to resort to, or be adversely affected by, a matter required
to be published in the Federal Register and not so published. For the purpose of this paragraph,
matter reasonably available to the class of persons affected thereby is deemed published in the
Federal Register when incorporated by reference therein with the approval of the Director of
the Federal Register.
(2) Each agency, in accordance with published rules, shall make available for public inspection
and copying—
(A) final opinions, including concurring and dissenting opinions, as well as orders, made
in the adjudication of cases;
(B) those statements of policy and interpretations which have been adopted by the
agency and are not published in the Federal Register;
(C) administrative staff manuals and instructions to staff that affect a member of the
public;

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(D) copies of all records, regardless of form or format, which have been released to any
person under paragraph (3) and which, because of the nature of their subject matter,
the agency determines have become or are likely to become the subject of subsequent
requests for substantially the same records; and
(E) a general index of the records referred to under subparagraph (D);
unless the materials are promptly published and copies offered for sale. For records created on
or after November 1, 1996, within one year after such date, each agency shall make such
records available, including by computer telecommunications or, if computer
telecommunications means have not been established by the agency, by other electronic
means. To the extent required to prevent a clearly unwarranted invasion of personal privacy, an
agency may delete identifying details when it makes available or publishes an opinion,
statement of policy, interpretation, staff manual, instruction, or copies of records referred to in
subparagraph (D). However, in each case the justification for the deletion shall be explained fully
in writing, and the extent of such deletion shall be indicated on the portion of the record which
is made available or published, unless including that indication would harm an interest
protected by the exemption in subsection (b) under which the deletion is made. If technically
feasible, the extent of the deletion shall be indicated at the place in the record where the
deletion was made. Each agency shall also maintain and make available for public inspection and
copying current indexes providing identifying information for the public as to any matter issued,
adopted, or promulgated after July 4, 1967, and required by this paragraph to be made available
or published. Each agency shall promptly publish, quarterly or more frequently, and distribute
(by sale or otherwise) copies of each index or supplements thereto unless it determines by order
published in the Federal Register that the publication would be unnecessary and impracticable,
in which case the agency shall nonetheless provide copies of an index on request at a cost not to
exceed the direct cost of duplication. Each agency shall make the index referred to in
subparagraph (E) available by computer telecommunications by December 31, 1999. A final
order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a
member of the public may be relied on, used, or cited as precedent by an agency against a party
other than an agency only if—
(i) it has been indexed and either made available or published as provided by
this paragraph; or
(ii) the party has actual and timely notice of the terms thereof.
(3)(A) Except with respect to the records made available under paragraphs (1) and (2) of this
subsection, and except as provided in subparagraph (E), each agency, upon any request for
records which (i) reasonably describes such records and (ii) is made in accordance with
published rules stating the time, place, fees (if any), and procedures to be followed, shall make
the records promptly available to any person.
(B) In making any record available to a person under this paragraph, an agency shall
provide the record in any form or format requested by the person if the record is readily
reproducible by the agency in that form or format. Each agency shall make reasonable
efforts to maintain its records in forms or formats that are reproducible for purposes of
this section.
(C) In responding under this paragraph to a request for records, an agency shall make
reasonable efforts to search for the records in electronic form or format, except when

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such efforts would significantly interfere with the operation of the agency's automated
information system.
(D) For purposes of this paragraph, the term "search" means to review, manually or by
automated means, agency records for the purpose of locating those records which are
responsive to a request.
(E) An agency, or part of an agency, that is an element of the intelligence community (as
that term is defined in section 3(4) of the National Security Act of 1947 (50 U.S.C.
401a(4))) shall not make any record available under this paragraph to—
(i) any government entity, other than a State, territory, commonwealth, or
district of the United States, or any subdivision thereof; or
(ii) a representative of a government entity described in clause (i).
(4)(A)(i) In order to carry out the provisions of this section, each agency shall promulgate
regulations, pursuant to notice and receipt of public comment, specifying the schedule of fees
applicable to the processing of requests under this section and establishing procedures and
guidelines for determining when such fees should be waived or reduced. Such schedule shall
conform to the guidelines which shall be promulgated, pursuant to notice and receipt of public
comment, by the Director of the Office of Management and Budget and which shall provide for
a uniform schedule of fees for all agencies.
(ii) Such agency regulations shall provide that—
(I) fees shall be limited to reasonable standard charges for document
search, duplication, and review, when records are requested for
commercial use;
(II) fees shall be limited to reasonable standard charges for document
duplication when records are not sought for commercial use and the
request is made by an educational or noncommercial scientific
institution, whose purpose is scholarly or scientific research; or a
representative of the news media; and
(III) for any request not described in (I) or (II), fees shall be limited to
reasonable standard charges for document search and duplication.
In this clause, the term ‘a representative of the news media’ means any person
or entity that gathers information of potential interest to a segment of the
public, uses its editorial skills to turn the raw materials into a distinct work, and
distributes that work to an audience. In this clause, the term ‘news’ means
information that is about current events or that would be of current interest to
the public. Examples of newsmedia entities are television or radio stations
broadcasting to the public at large and publishers of periodicals (but only if such
entities qualify as disseminators of ‘news’) who make their products available
for purchase by or subscription by or free distribution to the general public.
These examples are not all-inclusive. Moreover, as methods of news delivery
evolve (for example, the adoption of the electronic dissemination of
newspapers through telecommunications services), such alternative media shall
be considered to be news-media entities. A freelance journalist shall be

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regarded as working for a news-media entity if the journalist can demonstrate a
solid basis for expecting publication through that entity, whether or not the
journalist is actually employed by the entity. A publication contract would
present a solid basis for such an expectation; the Government may also consider
the past publication record of the requester in making such a determination.
(iii) Documents shall be furnished without any charge or at a charge reduced
below the fees established under clause (ii) if disclosure of the information is in
the public interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government and is not
primarily in the commercial interest of the requester.
(iv) Fee schedules shall provide for the recovery of only the direct costs of
search, duplication, or review. Review costs shall include only the direct costs
incurred during the initial examination of a document for the purposes of
determining whether the documents must be disclosed under this section and
for the purposes of withholding any portions exempt from disclosure under this
section. Review costs may not include any costs incurred in resolving issues of
law or policy that may be raised in the course of processing a request under this
section. No fee may be charged by any agency under this section—
(I) if the costs of routine collection and processing of the fee are likely to
equal or exceed the amount of the fee; or
(II) for any request described in clause (ii)(II) or (III) of this subparagraph
for the first two hours of search time or for the first one hundred pages
of duplication.
(v) No agency may require advance payment of any fee unless the requester has
previously failed to pay fees in a timely fashion, or the agency has determined
that the fee will exceed $250.
(vi) Nothing in this subparagraph shall supersede fees chargeable under a
statute specifically providing for setting the level of fees for particular types of
records.
(vii) In any action by a requester regarding the waiver of fees under this section,
the court shall determine the matter de novo: Provided, That the court's review
of the matter shall be limited to the record before the agency.
(viii) An agency shall not assess search fees (or in the case of a requester
described under clause (ii)(II), duplication fees) under this subparagraph if the
agency fails to comply with any time limit under paragraph (6), if no unusual or
exceptional circumstances (as those terms are defined for purposes of
paragraphs (6)(B) and (C), respectively) apply to the processing of the request.
[Effective December 31, 2008]
(B) On complaint, the district court of the United States in the district in which the
complainant resides, or has his principal place of business, or in which the agency
records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency
from withholding agency records and to order the production of any agency records

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improperly withheld from the complainant. In such a case the court shall determine the
matter de novo, and may examine the contents of such agency records in camera to
determine whether such records or any part thereof shall be withheld under any of the
exemptions set forth in subsection (b) of this section, and the burden is on the agency to
sustain its action. In addition to any other matters to which a court accords substantial
weight, a court shall accord substantial weight to an affidavit of an agency concerning
the agency's determination as to technical feasibility under paragraph (2)(C) and
subsection (b) and reproducibility under paragraph (3)(B).
(C) Notwithstanding any other provision of law, the defendant shall serve an answer or
otherwise plead to any complaint made under this subsection within thirty days after
service upon the defendant of the pleading in which such complaint is made, unless the
court otherwise directs for good cause is shown.
[(D) Repealed. Pub. L. 98-620, title IV, Sec. 402(2), Nov. 8, 1984, 98 Stat. 3357.]
(E)(i) The court may assess against the United States reasonable attorney fees and other
litigation costs reasonably incurred in any case under this section in which the
complainant has substantially prevailed.
(ii) For purposes of this subparagraph, a complainant has substantially prevailed
if the complainant has obtained relief through either—
(I) a judicial order, or an enforceable written agreement or consent
decree; or
(II) a voluntary or unilateral change in position by the agency, if the
complainant’s claim is not insubstantial.
(F)(i) Whenever the court orders the production of any agency records improperly
withheld from the complainant and assesses against the United States reasonable
attorney fees and other litigation costs, and the court additionally issues a written
finding that the circumstances surrounding the withholding raise questions whether
agency personnel acted arbitrarily or capriciously with respect to the withholding, the
Special Counsel shall promptly initiate a proceeding to determine whether disciplinary
action is warranted against the officer or employee who was primarily responsible for
the withholding. The Special Counsel, after investigation and consideration of the
evidence submitted, shall submit his findings and recommendations to the
administrative authority of the agency concerned and shall send copies of the findings
and recommendations to the officer or employee or his representative. The
administrative authority shall take the corrective action that the Special Counsel
recommends.
(ii) The Attorney General shall—
(I) notify the Special Counsel of each civil action described under the
first sentence of clause (i); and
(II) annually submit a report to Congress on the number of such civil
actions in the preceding year.

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(iii) The Special Counsel shall annually submit a report to Congress on the
actions taken by the Special Counsel under clause (i).
(G) In the event of noncompliance with the order of the court, the district court may
punish for contempt the responsible employee, and in the case of a uniformed service,
the responsible member.
(5) Each agency having more than one member shall maintain and make available for public
inspection a record of the final votes of each member in every agency proceeding.
(6)(A) Each agency, upon any request for records made under paragraph (1), (2), or (3) of this
subsection, shall—
(i) determine within 20 days (excepting Saturdays, Sundays, and legal public
holidays) after the receipt of any such request whether to comply with such
request and shall immediately notify the person making such request of such
determination and the reasons therefor, and of the right of such person to
appeal to the head of the agency any adverse determination; and
(ii) make a determination with respect to any appeal within twenty days
(excepting Saturdays, Sundays, and legal public holidays) after the receipt of
such appeal. If on appeal the denial of the request for records is in whole or in
part upheld, the agency shall notify the person making such request of the
provisions for judicial review of that determination under paragraph (4) of this
subsection.
The 20-day period under clause (i) shall commence on the date on which the
request is first received by the appropriate component of the agency, but in any
event not later than ten days after the request is first received by any
component of the agency that is designated in the agency’s regulations under
this section to receive requests under this section. The 20-day period shall not
be tolled by the agency except—
(I) that the agency may make one request to the requester for
information and toll the 20-day period while it is awaiting such
information that it has reasonably requested from the requester under
this section; or
(II) if necessary to clarify with the requester issues regarding fee
assessment. In either case, the agency’s receipt of the requester’s
response to the agency’s request for information or clarification ends
the tolling period. [Effective December 31, 2008]
(B)(i) In unusual circumstances as specified in this subparagraph, the time limits
prescribed in either clause (i) or clause (ii) of subparagraph (A) may be extended by
written notice to the person making such request setting forth the unusual
circumstances for such extension and the date on which a determination is expected to
be dispatched. No such notice shall specify a date that would result in an extension for
more than ten working days, except as provided in clause (ii) of this subparagraph.
(ii) With respect to a request for which a written notice under clause (i) extends
the time limits prescribed under clause (i) of subparagraph (A), the agency shall

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notify the person making the request if the request cannot be processed within
the time limit specified in that clause and shall provide the person an
opportunity to limit the scope of the request so that it may be processed within
that time limit or an opportunity to arrange with the agency an alternative time
frame for processing the request or a modified request. To aid the requester,
each agency shall make available its FOIA Public Liaison, who shall assist in the
resolution of any disputes between the requester and the agency. [Effective
December 31, 2008]. Refusal by the person to reasonably modify the request or
arrange such an alternative time frame shall be considered as a factor in
determining whether exceptional circumstances exist for purposes of
subparagraph (C).
(iii) As used in this subparagraph, "unusual circumstances" means, but only to
the extent reasonably necessary to the proper processing of the particular
requests—
(I) the need to search for and collect the requested records from field
facilities or other establishments that are separate from the office
processing the request;
(II) the need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are
demanded in a single request; or
(III) the need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of
the agency having substantial subject-matter interest therein.
(iv) Each agency may promulgate regulations, pursuant to notice and receipt of
public comment, providing for the aggregation of certain requests by the same
requestor, or by a group of requestors acting in concert, if the agency
reasonably believes that such requests actually constitute a single request,
which would otherwise satisfy the unusual circumstances specified in this
subparagraph, and the requests involve clearly related matters. Multiple
requests involving unrelated matters shall not be aggregated.
(C)(i) Any person making a request to any agency for records under paragraph (1), (2), or
(3) of this subsection shall be deemed to have exhausted his administrative remedies
with respect to such request if the agency fails to comply with the applicable time limit
provisions of this paragraph. If the Government can show exceptional circumstances
exist and that the agency is exercising due diligence in responding to the request, the
court may retain jurisdiction and allow the agency additional time to complete its
review of the records. Upon any determination by an agency to comply with a request
for records, the records shall be made promptly available to such person making such
request. Any notification of denial of any request for records under this subsection shall
set forth the names and titles or positions of each person responsible for the denial of
such request.
(ii) For purposes of this subparagraph, the term "exceptional circumstances"
does not include a delay that results from a predictable agency workload of

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requests under this section, unless the agency demonstrates reasonable
progress in reducing its backlog of pending requests.
(iii) Refusal by a person to reasonably modify the scope of a request or arrange
an alternative time frame for processing a request (or a modified request) under
clause (ii) after being given an opportunity to do so by the agency to whom the
person made the request shall be considered as a factor in determining whether
exceptional circumstances exist for purposes of this subparagraph.
(D)(i) Each agency may promulgate regulations, pursuant to notice and receipt of public
comment, providing for multitrack processing of requests for records based on the
amount of work or time (or both) involved in processing requests.
(ii) Regulations under this subparagraph may provide a person making a request
that does not qualify for the fastest multitrack processing an opportunity to
limit the scope of the request in order to qualify for faster processing.
(iii) This subparagraph shall not be considered to affect the requirement under
subparagraph (C) to exercise due diligence.
(E)(i) Each agency shall promulgate regulations, pursuant to notice and receipt of public
comment, providing for expedited processing of requests for records—
(I) in cases in which the person requesting the records demonstrates a
compelling need; and
(II) in other cases determined by the agency.
(ii) Notwithstanding clause (i), regulations under this subparagraph must
ensure—
(I) that a determination of whether to provide expedited processing
shall be made, and notice of the determination shall be provided to the
person making the request, within 10 days after the date of the request;
and
(II) expeditious consideration of administrative appeals of such
determinations of whether to provide expedited processing.
(iii) An agency shall process as soon as practicable any request for records to
which the agency has granted expedited processing under this subparagraph.
Agency action to deny or affirm denial of a request for expedited processing
pursuant to this subparagraph, and failure by an agency to respond in a timely
manner to such a request shall be subject to judicial review under paragraph (4),
except that the judicial review shall be based on the record before the agency at
the time of the determination.
(iv) A district court of the United States shall not have jurisdiction to review an
agency denial of expedited processing of a request for records after the agency
has provided a complete response to the request.
(v) For purposes of this subparagraph, the term "compelling need" means—

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(I) that a failure to obtain requested records on an expedited basis
under this paragraph could reasonably be expected to pose an
imminent threat to the life or physical safety of an individual; or
(II) with respect to a request made by a person primarily engaged in
disseminating information, urgency to inform the public concerning
actual or alleged Federal Government activity.
(vi) A demonstration of a compelling need by a person making a request for
expedited processing shall be made by a statement certified by such person to
be true and correct to the best of such person's knowledge and belief.
(F) In denying a request for records, in whole or in part, an agency shall make a
reasonable effort to estimate the volume of any requested matter the provision of
which is denied, and shall provide any such estimate to the person making the request,
unless providing such estimate would harm an interest protected by the exemption in
subsection (b) pursuant to which the denial is made.
(7) Each agency shall—
(A) establish a system to assign an individualized tracking number for each request
received that will take longer than ten days to process and provide to each person
making a request the tracking number assigned to the request; and
(B) establish a telephone line or Internet service that provides information about the
status of a request to the person making the request using the assigned tracking
number, including—
(i) the date on which the agency originally received the request; and
(ii) an estimated date on which the agency will complete action on the request.
[Effective December 31, 2008]
(b) This section does not apply to matters that are—
(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in
the interest of national defense or foreign policy and (B) are in fact properly classified ursuant to
such Executive order;
(2) related solely to the internal personnel rules and practices of an agency;
(3) specifically exempted from disclosure by statute (other than section 552b of this title),
provided that such statute (A) requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or (B) establishes particular criteria for
withholding or refers to particular types of matters to be withheld;
(4) trade secrets and commercial or financial information obtained from a person and privileged
or confidential;
(5) inter-agency or intra-agency memorandums or letters which would not be available by law to
a party other than an agency in litigation with the agency;

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(6) personnel and medical files and similar files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy;
(7) records or information compiled for law enforcement purposes, but only to the extent that
the production of such law enforcement records or information (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 information on a confidential basis, and, in the case of a
record or information compiled by a criminal law enforcement authority in the course of a
criminal investigation or by an agency conducting a lawful national security intelligence
investigation, information furnished by a confidential source, (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, or (F) could reasonably be expected to endanger the life or
physical safety of any individual;
(8) contained in or related to examination, operating, or condition reports prepared by, on
behalf of, or for the use of an agency responsible for the regulation or supervision of financial
institutions; or
(9) geological and geophysical information and data, including maps, concerning wells.
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.
(c)(1) Whenever a request is made which involves access to records described in subsection (b)(7)(A)
and—
(A) the investigation or proceeding involves a possible violation of criminal law; and
(B) there is reason to believe that (i) the subject of the investigation or proceeding is not
aware of its pendency, and (ii) disclosure of the existence of the records could
reasonably be expected to interfere with enforcement proceedings, the agency may,
during only such time as that circumstance continues, treat the records as not subject to
the requirements of this section.
(2) Whenever informant records maintained by a criminal law enforcement agency under an
informant's name or personal identifier are requested by a third party according to the
informant's name or personal identifier, the agency may treat the records as not subject to the
requirements of this section unless the informant's status as an informant has been officially
confirmed.
(3) Whenever a request is made which involves access to records maintained by the Federal
Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international

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terrorism, and the existence of the records is classified information as provided in subsection
(b)(1), the Bureau may, as long as the existence of the records remains classified information,
treat the records as not subject to the requirements of this section.
(d) This section does not authorize the withholding of information or limit the availability of records to
the public, except as specifically stated in this section. This section is not authority to withhold
information from Congress.
(e)(1) On or before February 1 of each year, each agency shall submit to the Attorney General of the
United States a report which shall cover the preceding fiscal year and which shall include—
(A) the number of determinations made by the agency not to comply with requests for
records made to such agency under subsection (a) and the reasons for each such
determination;
(B)(i) the number of appeals made by persons under subsection (a)(6), the result of such
appeals, and the reason for the action upon each appeal that results in a denial of
information; and
(ii) a complete list of all statutes that the agency relies upon to authorize the
agency to withhold information under subsection (b)(3), the number of
occasions on which each statute was relied upon, a description of whether a
court has upheld the decision of the agency to withhold information under each
such statute, and a concise description of the scope of any information
withheld;
(C) the number of requests for records pending before the agency as of September 30 of
the preceding year, and the median and average number of days that such requests had
been pending before the agency as of that date;
(D) the number of requests for records received by the agency and the number of
requests which the agency processed;
(E) the median number of days taken by the agency to process different types of
requests, based on the date on which the requests were received by the agency;
(F) the average number of days for the agency to respond to a request beginning on the
date on which the request was received by the agency, the median number of days for
the agency to respond to such requests, and the range in number of days for the agency
to respond to such requests;
(G) based on the number of business days that have elapsed since each request was
originally received by the agency—
(i) the number of requests for records to which the agency has responded with a
determination within a period up to and including 20 days, and in 20-day
increments up to and including 200 days;
(ii) the number of requests for records to which the agency has responded with
a determination within a period greater than 200 days and less than 301 days;

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(iii) the number of requests for records to which the agency has responded with
a determination within a period greater than 300 days and less than 401 days;
and
(iv) the number of requests for records to which the agency has responded with
a determination within a period greater than 400 days;
(H) the average number of days for the agency to provide the granted information
beginning on the date on which the request was originally filed, the median number of
days for the agency to provide the granted information, and the range in number of
days for the agency to provide the granted information;
(I) the median and average number of days for the agency to respond to administrative
appeals based on the date on which the appeals originally were received by the agency,
the highest number of business days taken by the agency to respond to an
administrative appeal, and the lowest number of business days taken by the agency to
respond to an administrative appeal;
(J) data on the 10 active requests with the earliest filing dates pending at each agency,
including the amount of time that has elapsed since each request was originally received
by the agency;
(K) data on the 10 active administrative appeals with the earliest filing dates pending
before the agency as of September 30 of the preceding year, including the number of
business days that have elapsed since the requests were originally received by the
agency;
(L) the number of expedited review requests that are granted and denied, the average
and median number of days for adjudicating expedited review requests, and the
number adjudicated within the required 10 days;
(M) the number of fee waiver requests that are granted and denied, and the average
and median number of days for adjudicating fee waiver determinations;
(N) the total amount of fees collected by the agency for processing requests; and
(O) the number of full-time staff of the agency devoted to processing requests for
records under this section, and the total amount expended by the agency for processing
such requests.
(2) Information in each report submitted under paragraph (1) shall be expressed in terms of
each principal component of the agency and for the agency overall.
(3) Each agency shall make each such report available to the public including by computer
telecommunications, or if computer telecommunications means have not been established by
the agency, by other electronic means. In addition, each agency shall make the raw statistical
data used in its reports available electronically to the public upon request.
(4) The Attorney General of the United States shall make each report which has been made
available by electronic means available at a single electronic access point. The Attorney General
of the United States shall notify the Chairman and ranking minority member of the Committee
on Government Reform and Oversight of the House of Representatives and the Chairman and

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ranking minority member of the Committees on Governmental Affairs and the Judiciary of the
Senate, no later than April 1 of the year in which each such report is issued, that such reports
are available by electronic means.
(5) The Attorney General of the United States, in consultation with the Director of the Office of
Management and Budget, shall develop reporting and performance guidelines in connection
with reports required by this subsection by October 1, 1997, and may establish additional
requirements for such reports as the Attorney General determines may be useful.
(6) The Attorney General of the United States shall submit an annual report on or before April 1
of each calendar year which shall include for the prior calendar year a listing of the number of
cases arising under this section, the exemption involved in each case, the disposition of such
case, and the cost, fees, and penalties assessed under subparagraphs (E), (F), and (G) of
subsection (a)(4). Such report shall also include a description of the efforts undertaken by the
Department of Justice to encourage agency compliance with this section.
(f) For purposes of this section, the term—
(1) "agency" as defined in section 551(1) of this title includes any executive department, military
department, Government corporation, Government controlled corporation, or other
establishment in the executive branch of the Government (including the Executive Office of the
President), or any independent regulatory agency; and
(2) ‘record’ and any other term used in this section in reference to information includes—
(A) any information that would be an agency record subject to the requirements of this
section when maintained by an agency in any format, including an electronic format;
and
(B) any information described under subparagraph (A) that is maintained for an agency
by an entity under Government contract, for the purposes of records management.
(g) The head of each agency shall prepare and make publicly available upon request, reference material
or a guide for requesting records or information from the agency, subject to the exemptions in
subsection (b), including—
(1) an index of all major information systems of the agency;
(2) a description of major information and record locator systems maintained by the agency;
and
(3) a handbook for obtaining various types and categories of public information from the agency
pursuant to chapter 35 of title 44, and under this section.
(h)(1) There is established the Office of Government Information Services within the National Archives
and Records Administration.
(2) The Office of Government Information Services shall—
(A) review policies and procedures of administrative agencies under this section;
(B) review compliance with this section by administrative agencies; and

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(C) recommend policy changes to Congress and the President to improve the
administration of this section.
(3) The Office of Government Information Services shall offer mediation services to resolve
disputes between persons making requests under this section and administrative agencies as a
non-exclusive alternative to litigation and, at the discretion of the Office, may issue advisory
opinions if mediation has not resolved the dispute.
(i) The Government Accountability Office shall conduct audits of administrative agencies on the
implementation of this section and issue reports detailing the results of such audits.
(j) Each agency shall designate a Chief FOIA Officer who shall be a senior official of such agency (at the
Assistant Secretary or equivalent level).
(k) The Chief FOIA Officer of each agency shall, subject to the authority of the head of the agency—
(1) have agency-wide responsibility for efficient and appropriate compliance with this section;
(2) monitor implementation of this section throughout the agency and keep the head of the
agency, the chief legal officer of the agency, and the Attorney General appropriately informed of
the agency’s performance in implementing this section;
(3) recommend to the head of the agency such adjustments to agency practices, policies,
personnel, and funding as may be necessary to improve its implementation of this section;
(4) review and report to the Attorney General, through the head of the agency, at such times
and in such formats as the Attorney General may direct, on the agency’s performance in
implementing this section;
(5) facilitate public understanding of the purposes of the statutory exemptions of this section by
including concise descriptions of the exemptions in both the agency’s handbook issued under
subsection (g), and the agency’s annual report on this section, and by providing an overview,
where appropriate, of certain general categories of agency records to which those exemptions
apply; and
(6) designate one or more FOIA Public Liaisons.
(l) FOIA Public Liaisons shall report to the agency Chief FOIA Officer and shall serve as supervisory
officials to whom a requester under this section can raise concerns about the service the requester has
received from the FOIA Requester Center, following an initial response from the FOIA Requester Center
Staff. FOIA Public Liaisons shall be responsible for assisting in reducing delays, increasing transparency
and understanding of the status of requests, and assisting in the resolution of disputes.

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appendix seven

Executive Order 12958 (as amended)
Classified National Security Information
This order prescribes a uniform system for classifying, safeguarding, and declassifying national security
information, including information relating to defense against transnational terrorism. Our democratic
principles require that the American people be informed of the activities of their Government. Also, our
Nations progress depends on the free flow of information. Nevertheless, throughout our history, the
national defense has required that certain information be maintained in confidence in order to protect
our citizens, our democratic institutions, our homeland security, and our interactions with foreign
nations. Protecting information critical to our Nations security remains a priority.
NOW, THEREFORE, by the authority vested in me as President by the Constitution and the laws of the
United States of America, it is hereby ordered as follows:
PART 1--ORIGINAL CLASSIFICATION
Sec. 1.1. Classification Standards. (a) Information may be originally classified under the terms of this
order only if all of the following conditions are met:
(1) an original classification authority is classifying the information;
(2) the information is owned by, produced by or for, or is under the control of the United States
Government;
(3) the information falls within one or more of the categories of information listed in section 1.4
of this order; and
(4) the original classification authority determines that the unauthorized disclosure of the
information reasonably could be expected to result in damage to the national security, which
includes defense against transnational terrorism, and the original classification authority is able
to identify or describe the damage.
(b) Classified information shall not be declassified automatically as a result of any unauthorized
disclosure of identical or similar information.
(c) The unauthorized disclosure of foreign government information is presumed to cause damage to the
national security.
Sec. 1.2. Classification Levels. (a) Information may be classified at one of the following three levels:
(1) "Top Secret" shall be applied to information, the unauthorized disclosure of which
reasonably could be expected to cause exceptionally grave damage to the national security that
the original classification authority is able to identify or describe.

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(2) "Secret" shall be applied to information, the unauthorized disclosure of which reasonably
could be expected to cause serious damage to the national security that the original
classification authority is able to identify or describe.
(3) "Confidential" shall be applied to information, the unauthorized disclosure of which
reasonably could be expected to cause damage to the national security that the original
classification authority is able to identify or describe.
(b) Except as otherwise provided by statute, no other terms shall be used to identify United States
classified information.
Sec. 1.3. Classification Authority. (a) The authority to classify information originally may be exercised
only by:
(1) the President and, in the performance of executive duties, the Vice President;
(2) agency heads and officials designated by the President in the Federal Register; and
(3) United States Government officials delegated this authority pursuant to paragraph (c) of this
section.
(b) Officials authorized to classify information at a specified level are also authorized to classify
information at a lower level.
(c) Delegation of original classification authority.
(1) Delegations of original classification authority shall be limited to the minimum required to
administer this order. Agency heads are responsible for ensuring that designated subordinate
officials have a demonstrable and continuing need to exercise this authority.
(2) "Top Secret" original classification authority may be delegated only by the President; in the
performance of executive duties, the Vice President; or an agency head or official designated
pursuant to paragraph (a)(2) of this section.
(3) "Secret" or "Confidential" original classification authority may be delegated only by the
President; in the performance of executive duties, the Vice President; or an agency head or
official designated pursuant to paragraph (a)(2) of this section; or the senior agency official
described in section 5.4(d) of this order, provided that official has been delegated "Top Secret"
original classification authority by the agency head.
(4) Each delegation of original classification authority shall be in writing and the authority shall
not be redelegated except as provided in this order. Each delegation shall identify the official by
name or position title.
(d) Original classification authorities must receive training in original classification as provided in this
order and its implementing directives. Such training must include instruction on the proper safeguarding
of classified information and of the criminal, civil, and administrative sanctions that may be brought
against an individual who fails to protect classified information from unauthorized disclosure.
(e) Exceptional cases. When an employee, government contractor, licensee, certificate holder, or
grantee of an agency who does not have original classification authority originates information believed
by that person to require classification, the information shall be protected in a manner consistent with
this order and its implementing directives. The information shall be transmitted promptly as provided

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under this order or its implementing directives to the agency that has appropriate subject matter
interest and classification authority with respect to this information. That agency shall decide within 30
days whether to classify this information. If it is not clear which agency has classification responsibility
for this information, it shall be sent to the Director of the Information Security Oversight Office. The
Director shall determine the agency having primary subject matter interest and forward the
information, with appropriate recommendations, to that agency for a classification determination.
Sec. 1.4. Classification Categories. Information shall not be considered for classification unless it
concerns:
(a) military plans, weapons systems, or operations;
(b) foreign government information;
(c) intelligence activities (including special activities), intelligence sources or methods, or
cryptology;
(d) foreign relations or foreign activities of the United States, including confidential sources;
(e) scientific, technological, or economic matters relating to the national security, which includes
defense against transnational terrorism;
(f) United States Government programs for safeguarding nuclear materials or facilities;
(g) vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or
protection services relating to the national security, which includes defense against
transnational terrorism; or
(h) weapons of mass destruction.
Sec. 1.5. Duration of Classification. (a) At the time of original classification, the original classification
authority shall attempt to establish a specific date or event for declassification based upon the duration
of the national security sensitivity of the information. Upon reaching the date or event, the information
shall be automatically declassified. The date or event shall not exceed the time frame established in
paragraph (b) of this section.
(b) If the original classification authority cannot determine an earlier specific date or event for
declassification, information shall be marked for declassification 10 years from the date of the original
decision, unless the original classification authority otherwise determines that the sensitivity of the
information requires that it shall be marked for declassification for up to 25 years from the date of the
original decision. All information classified under this section shall be subject to section 3.3 of this order
if it is contained in records of permanent historical value under title 44, United States Code.
(c) An original classification authority may extend the duration of classification, change the level of
classification, or reclassify specific information only when the standards and procedures for classifying
information under this order are followed.
(d) Information marked for an indefinite duration of classification under predecessor orders, for
example, marked as "Originating Agencys Determination Required," or information classified under
predecessor orders that contains no declassification instructions shall be declassified in accordance with
part 3 of this order.

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Sec. 1.6. Identification and Markings. (a) At the time of original classification, the following shall appear
on the face of each classified document, or shall be applied to other classified media in an appropriate
manner:
(1) one of the three classification levels defined in section 1.2 of this order;
(2) the identity, by name or personal identifier and position, of the original classification
authority;
(3) the agency and office of origin, if not otherwise evident;
(4) declassification instructions, which shall indicate one of the following:
(A) the date or event for declassification, as prescribed in section 1.5(a) or section 1.5(c);
(B) the date that is 10 years from the date of original classification, as prescribed in
section 1.5(b); or
(C) the date that is up to 25 years from the date of original classification, as prescribed in
section 1.5 (b); and
(5) a concise reason for classification that, at a minimum, cites the applicable classification
categories in section 1.4 of this order.
(b) Specific information described in paragraph (a) of this section may be excluded if it would reveal
additional classified information.
(c) With respect to each classified document, the agency originating the document shall, by marking or
other means, indicate which portions are classified, with the applicable classification level, and which
portions are unclassified. In accordance with standards prescribed in directives issued under this order,
the Director of the Information Security Oversight Office may grant waivers of this requirement. The
Director shall revoke any waiver upon a finding of abuse.
(d) Markings implementing the provisions of this order, including abbreviations and requirements to
safeguard classified working papers, shall conform to the standards prescribed in implementing
directives issued pursuant to this order.
(e) Foreign government information shall retain its original classification markings or shall be assigned a
U.S. classification that provides a degree of protection at least equivalent to that required by the entity
that furnished the information. Foreign government information retaining its original classification
markings need not be assigned a U.S. classification marking provided that the responsible agency
determines that the foreign government markings are adequate to meet the purposes served by U.S.
classification markings.
(f) Information assigned a level of classification under this or predecessor orders shall be considered as
classified at that level of classification despite the omission of other required markings. Whenever such
information is used in the derivative classification process or is reviewed for possible declassification,
holders of such information shall coordinate with an appropriate classification authority for the
application of omitted markings.
(g) The classification authority shall, whenever practicable, use a classified addendum whenever
classified information constitutes a small portion of an otherwise unclassified document.

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(h) Prior to public release, all declassified records shall be appropriately marked to reflect their
declassification.
Sec. 1.7. Classification Prohibitions and Limitations. (a) In no case shall information be classified in
order to:
(1) conceal violations of law, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization, or agency;
(3) restrain competition; or
(4) prevent or delay the release of information that does not require protection in the interest
of the national security.
(b) Basic scientific research information not clearly related to the national security shall not be classified.
(c) Information may be reclassified after declassification and release to the public under proper
authority only in accordance with the following conditions:
(1) the reclassification action is taken under the personal authority of the agency head or deputy
agency head, who determines in writing that the reclassification of the information is necessary
in the interest of the national security;
(2) the information may be reasonably recovered; and
(3) the reclassification action is reported promptly to the Director of the Information Security
Oversight Office.
(d) Information that has not previously been disclosed to the public under proper authority may be
classified or reclassified after an agency has received a request for it under the Freedom of Information
Act (5 U.S.C. 552) or the Privacy Act of 1974 (5 U.S.C. 552a), or the mandatory review provisions of
section 3.5 of this order only if such classification meets the requirements of this order and is
accomplished on a document-by-document basis with the personal participation or under the direction
of the agency head, the deputy agency head, or the senior agency official designated under section 5.4
of this order.
(e) Compilations of items of information that are individually unclassified may be classified if the
compiled information reveals an additional association or relationship that: (1) meets the standards for
classification under this order; and (2) is not otherwise revealed in the individual items of information.
As used in this order, "compilation" means an aggregation of pre-existing unclassified items of
information.
Sec. 1.8. Classification Challenges. (a) Authorized holders of information who, in good faith, believe that
its classification status is improper are encouraged and expected to challenge the classification status of
the information in accordance with agency procedures established under paragraph (b) of this section.
(b) In accordance with implementing directives issued pursuant to this order, an agency head or senior
agency official shall establish procedures under which authorized holders of information are encouraged
and expected to challenge the classification of information that they believe is improperly classified or
unclassified. These procedures shall ensure that:
(1) individuals are not subject to retribution for bringing such actions;

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(2) an opportunity is provided for review by an impartial official or panel; and
(3) individuals are advised of their right to appeal agency decisions to the Interagency Security
Classification Appeals Panel (Panel) established by section 5.3 of this order.
PART 2--DERIVATIVE CLASSIFICATION
Sec. 2.1. Use of Derivative Classification. (a) Persons who only reproduce, extract, or summarize
classified information, or who only apply classification markings derived from source material or as
directed by a classification guide, need not possess original classification authority.
(b) Persons who apply derivative classification markings shall:
(1) observe and respect original classification decisions; and
(2) carry forward to any newly created documents the pertinent classification markings. For
information derivatively classified based on multiple sources, the derivative classifier shall carry
forward:
(A) the date or event for declassification that corresponds to the longest period of
classification among the sources; and
(B) a listing of these sources on or attached to the official file or record copy.
Sec. 2.2. Classification Guides. (a) Agencies with original classification authority shall prepare
classification guides to facilitate the proper and uniform derivative classification of information. These
guides shall conform to standards contained in directives issued under this order.
(b) Each guide shall be approved personally and in writing by an official who:
(1) has program or supervisory responsibility over the information or is the senior agency
official; and
(2) is authorized to classify information originally at the highest level of classification prescribed
in the guide.
(c) Agencies shall establish procedures to ensure that classification guides are reviewed and updated as
provided in directives issued under this order.
PART 3--DECLASSIFICATION AND DOWNGRADING
Sec. 3.1. Authority for Declassification. (a) Information shall be declassified as soon as it no longer
meets the standards for classification under this order.
(b) It is presumed that information that continues to meet the classification requirements under this
order requires continued protection. In some exceptional cases, however, the need to protect such
information may be outweighed by the public interest in disclosure of the information, and in these
cases the information should be declassified. When such questions arise, they shall be referred to the
agency head or the senior agency official. That official will determine, as an exercise of discretion,
whether the public interest in disclosure outweighs the damage to the national security that might
reasonably be expected from disclosure. This provision does not:
(1) amplify or modify the substantive criteria or procedures for classification; or
(2) create any substantive or procedural rights subject to judicial review.

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(c) If the Director of the Information Security Oversight Office determines that information is classified in
violation of this order, the Director may require the information to be declassified by the agency that
originated the classification. Any such decision by the Director may be appealed to the President
through the Assistant to the President for National Security Affairs. The information shall remain
classified pending a prompt decision on the appeal.
(d) The provisions of this section shall also apply to agencies that, under the terms of this order, do not
have original classification authority, but had such authority under predecessor orders.
Sec. 3.2. Transferred Records. (a) In the case of classified records transferred in conjunction with a
transfer of functions, and not merely for storage purposes, the receiving agency shall be deemed to be
the originating agency for purposes of this order.
(b) In the case of classified records that are not officially transferred as described in paragraph (a) of this
section, but that originated in an agency that has ceased to exist and for which there is no successor
agency, each agency in possession of such records shall be deemed to be the originating agency for
purposes of this order. Such records may be declassified or downgraded by the agency in possession
after consultation with any other agency that has an interest in the subject matter of the records.
(c) Classified records accessioned into the National Archives and Records Administration (National
Archives) as of the effective date of this order shall be declassified or downgraded by the Archivist of the
United States (Archivist) in accordance with this order, the directives issued pursuant to this order,
agency declassification guides, and any existing procedural agreement between the Archivist and the
relevant agency head.
(d) The originating agency shall take all reasonable steps to declassify classified information contained in
records determined to have permanent historical value before they are accessioned into the National
Archives. However, the Archivist may require that classified records be accessioned into the National
Archives when necessary to comply with the provisions of the Federal Records Act. This provision does
not apply to records being transferred to the Archivist pursuant to section 2203 of title 44, United States
Code, or records for which the National Archives serves as the custodian of the records of an agency or
organization that has gone out of existence.
(e) To the extent practicable, agencies shall adopt a system of records management that will facilitate
the public release of documents at the time such documents are declassified pursuant to the provisions
for automatic declassification in section 3.3 of this order.
Sec. 3.3. Automatic Declassification. (a) Subject to paragraphs (b)-(e) of this section, on December 31,
2006, all classified records that (1) are more than 25 years old and (2) have been determined to have
permanent historical value under title 44, United States Code, shall be automatically declassified
whether or not the records have been reviewed. Subsequently, all classified records shall be
automatically declassified on December 31 of the year that is 25 years from the date of its original
classification, except as provided in paragraphs (b)-(e) of this section.
(b) An agency head may exempt from automatic declassification under paragraph (a) of this section
specific information, the release of which could be expected to:
(1) reveal the identity of a confidential human source, or a human intelligence source, or reveal
information about the application of an intelligence source or method;
(2) reveal information that would assist in the development or use of weapons of mass
destruction;

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(3) reveal information that would impair U.S. cryptologic systems or activities;
(4) reveal information that would impair the application of state of the art technology within a
U.S. weapon system;
(5) reveal actual U.S. military war plans that remain in effect;
(6) reveal information, including foreign government information, that would seriously and
demonstrably impair relations between the United States and a foreign government, or
seriously and demonstrably undermine ongoing diplomatic activities of the United States;
(7) reveal information that would clearly and demonstrably impair the current ability of United
States Government officials to protect the President, Vice President, and other protectees for
whom protection services, in the interest of the national security, are authorized;
(8) reveal information that would seriously and demonstrably impair current national security
emergency preparedness plans or reveal current vulnerabilities of systems, installations,
infrastructures, or projects relating to the national security; or
(9) violate a statute, treaty, or international agreement.
(c) An agency head shall notify the President through the Assistant to the President for National Security
Affairs of any specific file series of records for which a review or assessment has determined that the
information within that file series almost invariably falls within one or more of the exemption categories
listed in paragraph (b) of this section and which the agency proposes to exempt from automatic
declassification. The notification shall include:
(1) a description of the file series;
(2) an explanation of why the information within the file series is almost invariably exempt from
automatic declassification and why the information must remain classified for a longer period of
time; and
(3) except for the identity of a confidential human source or a human intelligence source, as
provided in paragraph (b) of this section, a specific date or event for declassification of the
information.
The President may direct the agency head not to exempt the file series or to declassify the information
within that series at an earlier date than recommended. File series exemptions previously approved by
the President shall remain valid without any additional agency action.
(d) At least 180 days before information is automatically declassified under this section, an agency head
or senior agency official shall notify the Director of the Information Security Oversight Office, serving as
Executive Secretary of the Panel, of any specific information beyond that included in a notification to the
President under paragraph (c) of this section that the agency proposes to exempt from automatic
declassification. The notification shall include:
(1) a description of the information, either by reference to information in specific records or in
the form of a declassification guide;
(2) an explanation of why the information is exempt from automatic declassification and must
remain classified for a longer period of time; and

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(3) except for the identity of a confidential human source or a human intelligence source, as
provided in paragraph (b) of this section, a specific date or event for declassification of the
information. The Panel may direct the agency not to exempt the information or to declassify it
at an earlier date than recommended. The agency head may appeal such a decision to the
President through the Assistant to the President for National Security Affairs. The information
will remain classified while such an appeal is pending.
(e) The following provisions shall apply to the onset of automatic declassification:
(1) Classified records within an integral file block, as defined in this order, that are otherwise
subject to automatic declassification under this section shall not be automatically declassified
until December 31 of the year that is 25 years from the date of the most recent record within
the file block.
(2) By notification to the Director of the Information Security Oversight Office, before the
records are subject to automatic declassification, an agency head or senior agency official
designated under section 5.4 of this order may delay automatic declassification for up to 5
additional years for classified information contained in microforms, motion pictures, audiotapes,
videotapes, or comparable media that make a review for possible declassification exemptions
more difficult or costly.
(3) By notification to the Director of the Information Security Oversight Office, before the
records are subject to automatic declassification, an agency head or senior agency official
designated under section 5.4 of this order may delay automatic declassification for up to 3 years
for classified records that have been referred or transferred to that agency by another agency
less than 3 years before automatic declassification would otherwise be required.
(4) By notification to the Director of the Information Security Oversight Office, an agency head
or senior agency official designated under section 5.4 of this order may delay automatic
declassification for up to 3 years from the date of discovery of classified records that were
inadvertently not reviewed prior to the effective date of automatic declassification.
(f) Information exempted from automatic declassification under this section shall remain subject to the
mandatory and systematic declassification review provisions of this order.
(g) The Secretary of State shall determine when the United States should commence negotiations with
the appropriate officials of a foreign government or international organization of governments to
modify any treaty or international agreement that requires the classification of information contained in
records affected by this section for a period longer than 25 years from the date of its creation, unless
the treaty or international agreement pertains to information that may otherwise remain classified
beyond 25 years under this section.
(h) Records containing information that originated with other agencies or the disclosure of which would
affect the interests or activities of other agencies shall be referred for review to those agencies and the
information of concern shall be subject to automatic declassification only by those agencies, consistent
with the provisions of subparagraphs (e)(3) and (e)(4) of this section.
Sec. 3.4. Systematic Declassification Review. (a) Each agency that has originated classified information
under this order or its predecessors shall establish and conduct a program for systematic declassification
review. This program shall apply to records of permanent historical value exempted from automatic

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declassification under section 3.3 of this order. Agencies shall prioritize the systematic review of records
based upon the degree of researcher interest and the likelihood of declassification upon review.
(b) The Archivist shall conduct a systematic declassification review program for classified records: (1)
accessioned into the National Archives as of the effective date of this order; (2) transferred to the
Archivist pursuant to section 2203 of title 44, United States Code; and (3) for which the National
Archives serves as the custodian for an agency or organization that has gone out of existence. This
program shall apply to pertinent records no later than 25 years from the date of their creation. The
Archivist shall establish priorities for the systematic review of these records based upon the degree of
researcher interest and the likelihood of declassification upon review. These records shall be reviewed
in accordance with the standards of this order, its implementing directives, and declassification guides
provided to the Archivist by each agency that originated the records. The Director of the Information
Security Oversight Office shall ensure that agencies provide the Archivist with adequate and current
declassification guides.
(c) After consultation with affected agencies, the Secretary of Defense may establish special procedures
for systematic review for declassification of classified cryptologic information, and the Director of
Central Intelligence may establish special procedures for systematic review for declassification of
classified information pertaining to intelligence activities (including special activities), or intelligence
sources or methods.
Sec. 3.5. Mandatory Declassification Review. (a) Except as provided in paragraph (b) of this section, all
information classified under this order or predecessor orders shall be subject to a review for
declassification by the originating agency if:
(1) the request for a review describes the document or material containing the information with
sufficient specificity to enable the agency to locate it with a reasonable amount of effort;
(2) the information is not exempted from search and review under sections 105C, 105D, or 701
of the National Security Act of 1947 (50 U.S.C. 403-5c, 403-5e, and 431); and
(3) the information has not been reviewed for declassification within the past 2 years. If the
agency has reviewed the information within the past 2 years, or the information is the subject of
pending litigation, the agency shall inform the requester of this fact and of the requesters
appeal rights.
(b) Information originated by:
(1) the incumbent President or, in the performance of executive duties, the incumbent Vice
President;
(2) the incumbent Presidents White House Staff or, in the performance of executive duties, the
incumbent Vice Presidents Staff;
(3) committees, commissions, or boards appointed by the incumbent President; or
(4) other entities within the Executive Office of the President that solely advise and assist the
incumbent President is exempted from the provisions of paragraph (a) of this section. However,
the Archivist shall have the authority to review, downgrade, and declassify papers or records of
former Presidents under the control of the Archivist pursuant to sections 2107, 2111, 2111 note,
or 2203 of title 44, United States Code. Review procedures developed by the Archivist shall
provide for consultation with agencies having primary subject matter interest and shall be

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consistent with the provisions of applicable laws or lawful agreements that pertain to the
respective Presidential papers or records. Agencies with primary subject matter interest shall be
notified promptly of the Archivists decision. Any final decision by the Archivist may be appealed
by the requester or an agency to the Panel. The information shall remain classified pending a
prompt decision on the appeal.
(c) Agencies conducting a mandatory review for declassification shall declassify information that no
longer meets the standards for classification under this order. They shall release this information unless
withholding is otherwise authorized and warranted under applicable law.
(d) In accordance with directives issued pursuant to this order, agency heads shall develop procedures
to process requests for the mandatory review of classified information. These procedures shall apply to
information classified under this or predecessor orders. They also shall provide a means for
administratively appealing a denial of a mandatory review request, and for notifying the requester of
the right to appeal a final agency decision to the Panel.
(e) After consultation with affected agencies, the Secretary of Defense shall develop special procedures
for the review of cryptologic information; the Director of Central Intelligence shall develop special
procedures for the review of information pertaining to intelligence activities (including special activities),
or intelligence sources or methods; and the Archivist shall develop special procedures for the review of
information accessioned into the National Archives.
Sec. 3.6. Processing Requests and Reviews. In response to a request for information under the Freedom
of Information Act, the Privacy Act of 1974, or the mandatory review provisions of this order, or
pursuant to the automatic declassification or systematic review provisions of this order:
(a) An agency may refuse to confirm or deny the existence or nonexistence of requested records
whenever the fact of their existence or nonexistence is itself classified under this order or its
predecessors.
(b) When an agency receives any request for documents in its custody that contain information that was
originally classified by another agency, or comes across such documents in the process of the automatic
declassification or systematic review provisions of this order, it shall refer copies of any request and the
pertinent documents to the originating agency for processing, and may, after consultation with the
originating agency, inform any requester of the referral unless such association is itself classified under
this order or its predecessors. In cases in which the originating agency determines in writing that a
response under paragraph (a) of this section is required, the referring agency shall respond to the
requester in accordance with that paragraph.
Sec. 3.7. Declassification Database. (a) The Director of the Information Security Oversight Office, in
conjunction with those agencies that originate classified information, shall coordinate the linkage and
effective utilization of existing agency databases of records that have been declassified and publicly
released.
(b) Agency heads shall fully cooperate with the Director of the Information Security Oversight Office in
these efforts.
PART 4--SAFEGUARDING
Sec. 4.1. General Restrictions on Access. (a) A person may have access to classified information
provided that:

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(1) a favorable determination of eligibility for access has been made by an agency head or the
agency heads designee;
(2) the person has signed an approved nondisclosure agreement; and
(3) the person has a need-to-know the information.
(b) Every person who has met the standards for access to classified information in paragraph (a) of this
section shall receive contemporaneous training on the proper safeguarding of classified information and
on the criminal, civil, and administrative sanctions that may be imposed on an individual who fails to
protect classified information from unauthorized disclosure.
(c) Classified information shall remain under the control of the originating agency or its successor in
function. An agency shall not disclose information originally classified by another agency without its
authorization. An official or employee leaving agency service may not remove classified information
from the agencys control.
(d) Classified information may not be removed from official premises without proper authorization.
(e) Persons authorized to disseminate classified information outside the executive branch shall ensure
the protection of the information in a manner equivalent to that provided within the executive branch.
(f) Consistent with law, directives, and regulation, an agency head or senior agency official shall establish
uniform procedures to ensure that automated information systems, including networks and
telecommunications systems, that collect, create, communicate, compute, disseminate, process, or
store classified information have controls that:
(1) prevent access by unauthorized persons; and
(2) ensure the integrity of the information.
(g) Consistent with law, directives, and regulation, each agency head or senior agency official shall
establish controls to ensure that classified information is used, processed, stored, reproduced,
transmitted, and destroyed under conditions that provide adequate protection and prevent access by
unauthorized persons.
(h) Consistent with directives issued pursuant to this order, an agency shall safeguard foreign
government information under standards that provide a degree of protection at least equivalent to that
required by the government or international organization of governments that furnished the
information. When adequate to achieve equivalency, these standards may be less restrictive than the
safeguarding standards that ordinarily apply to United States "Confidential" information, including
modified handling and transmission and allowing access to individuals with a need-to-know who have
not otherwise been cleared for access to classified information or executed an approved nondisclosure
agreement.
(i) Except as otherwise provided by statute, this order, directives implementing this order, or by
direction of the President, classified information originating in one agency shall not be disseminated
outside any other agency to which it has been made available without the consent of the originating
agency. An agency head or senior agency official may waive this requirement for specific information
originated within that agency. For purposes of this section, the Department of Defense shall be
considered one agency. Prior consent is not required when referring records for declassification review
that contain information originating in several agencies.

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Sec. 4.2. Distribution Controls. (a) Each agency shall establish controls over the distribution of classified
information to ensure that it is distributed only to organizations or individuals eligible for access and
with a need-to-know the information.
(b) In an emergency, when necessary to respond to an imminent threat to life or in defense of the
homeland, the agency head or any designee may authorize the disclosure of classified information to an
individual or individuals who are otherwise not eligible for access. Such actions shall be taken only in
accordance with the directives implementing this order and any procedures issued by agencies
governing the classified information, which shall be designed to minimize the classified information that
is disclosed under these circumstances and the number of individuals who receive it. Information
disclosed under this provision or implementing directives and procedures shall not be deemed
declassified as a result of such disclosure or subsequent use by a recipient. Such disclosures shall be
reported promptly to the originator of the classified information. For purposes of this section, the
Director of Central Intelligence may issue an implementing directive governing the emergency disclosure
of classified intelligence information.
(c) Each agency shall update, at least annually, the automatic, routine, or recurring distribution of
classified information that they distribute. Recipients shall cooperate fully with distributors who are
updating distribution lists and shall notify distributors whenever a relevant change in status occurs.
Sec. 4.3. Special Access Programs. (a) Establishment of special access programs. Unless otherwise
authorized by the President, only the Secretaries of State, Defense, and Energy, and the Director of
Central Intelligence, or the principal deputy of each, may create a special access program. For special
access programs pertaining to intelligence activities (including special activities, but not including
military operational, strategic, and tactical programs), or intelligence sources or methods, this function
shall be exercised by the Director of Central Intelligence. These officials shall keep the number of these
programs at an absolute minimum, and shall establish them only when the program is required by
statute or upon a specific finding that:
(1) the vulnerability of, or threat to, specific information is exceptional; and
(2) the normal criteria for determining eligibility for access applicable to information classified at
the same level are not deemed sufficient to protect the information from unauthorized
disclosure.
(b) Requirements and limitations.

(1) Special access programs shall be limited to programs in which the number of persons who
will have access ordinarily will be reasonably small and commensurate with the objective of
providing enhanced protection for the information involved.
(2) Each agency head shall establish and maintain a system of accounting for special access
programs consistent with directives issued pursuant to this order.
(3) Special access programs shall be subject to the oversight program established under section
5.4(d) of this order. In addition, the Director of the Information Security Oversight Office shall be
afforded access to these programs, in accordance with the security requirements of each
program, in order to perform the functions assigned to the Information Security Oversight Office
under this order. An agency head may limit access to a special access program to the Director

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and no more than one other employee of the Information Security Oversight Office, or, for
special access programs that are extraordinarily sensitive and vulnerable, to the Director only.
(4) The agency head or principal deputy shall review annually each special access program to
determine whether it continues to meet the requirements of this order.
(5) Upon request, an agency head shall brief the Assistant to the President for National Security
Affairs, or a designee, on any or all of the agencys special access programs.
(c) Nothing in this order shall supersede any requirement made by or under 10 U.S.C. 119.
Sec. 4.4. Access by Historical Researchers and Certain Former Government Personnel. (a) The
requirement in section 4.1(a)(3) of this order that access to classified information may be granted only
to individuals who have a need-to-know the information may be waived for persons who:
(1) are engaged in historical research projects;
(2) previously have occupied policy-making positions to which they were appointed by the
President under section 105(a)(2)(A) of title 3, United States Code, or the Vice President under
106(a)(1)(A) of title 3, United States Code; or
(3) served as President or Vice President.
(b) Waivers under this section may be granted only if the agency head or senior agency official of the
originating agency:

(1) determines in writing that access is consistent with the interest of the national security;
(2) takes appropriate steps to protect classified information from unauthorized disclosure or
compromise, and ensures that the information is safeguarded in a manner consistent with this
order; and
(3) limits the access granted to former Presidential appointees and Vice Presidential appointees
to items that the person originated, reviewed, signed, or received while serving as a Presidential
appointee or a Vice Presidential appointee.
PART 5--IMPLEMENTATION AND REVIEW
Sec. 5.1. Program Direction. (a) The Director of the Information Security Oversight Office, under the
direction of the Archivist and in consultation with the Assistant to the President for National Security
Affairs, shall issue such directives as are necessary to implement this order. These directives shall be
binding upon the agencies. Directives issued by the Director of the Information Security Oversight Office
shall establish standards for:
(1) classification and marking principles;
(2) safeguarding classified information, which shall pertain to the handling, storage, distribution,
transmittal, and destruction of and accounting for classified information;
(3) agency security education and training programs;
(4) agency self-inspection programs; and

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(5) classification and declassification guides.
(b) The Archivist shall delegate the implementation and monitoring functions of this program to the
Director of the Information Security Oversight Office.
Sec. 5.2. Information Security Oversight Office. (a) There is established within the National Archives an
Information Security Oversight Office. The Archivist shall appoint the Director of the Information
Security Oversight Office, subject to the approval of the President.
(b) Under the direction of the Archivist, acting in consultation with the Assistant to the President for
National Security Affairs, the Director of the Information Security Oversight Office shall:
(1) develop directives for the implementation of this order;
(2) oversee agency actions to ensure compliance with this order and its implementing directives;
(3) review and approve agency implementing regulations and agency guides for systematic
declassification review prior to their issuance by the agency;
(4) have the authority to conduct on-site reviews of each agencys program established under
this order, and to require of each agency those reports, information, and other cooperation that
may be necessary to fulfill its responsibilities. If granting access to specific categories of
classified information would pose an exceptional national security risk, the affected agency head
or the senior agency official shall submit a written justification recommending the denial of
access to the President through the Assistant to the President for National Security Affairs
within 60 days of the request for access. Access shall be denied pending the response;
(5) review requests for original classification authority from agencies or officials not granted
original classification authority and, if deemed appropriate, recommend Presidential approval
through the Assistant to the President for National Security Affairs;
(6) consider and take action on complaints and suggestions from persons within or outside the
Government with respect to the administration of the program established under this order;
(7) have the authority to prescribe, after consultation with affected agencies, standardization of
forms or procedures that will promote the implementation of the program established under
this order;
(8) report at least annually to the President on the implementation of this order; and
(9) convene and chair interagency meetings to discuss matters pertaining to the program
established by this order.
Sec. 5.3. Interagency Security Classification Appeals Panel.
(a) Establishment and administration.
(1) There is established an Interagency Security Classification Appeals Panel. The Departments of
State, Defense, and Justice, the Central Intelligence Agency, the National Archives, and the
Assistant to the President for National Security Affairs shall each be represented by a seniorlevel representative who is a full-time or permanent part-time Federal officer or employee
designated to serve as a member of the Panel by the respective agency head. The President
shall select the Chair of the Panel from among the Panel members.

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(2) A vacancy on the Panel shall be filled as quickly as possible as provided in paragraph (a)(1) of
this section.
(3) The Director of the Information Security Oversight Office shall serve as the Executive
Secretary. The staff of the Information Security Oversight Office shall provide program and
administrative support for the Panel.
(4) The members and staff of the Panel shall be required to meet eligibility for access standards
in order to fulfill the Panels functions.
(5) The Panel shall meet at the call of the Chair. The Chair shall schedule meetings as may be
necessary for the Panel to fulfill its functions in a timely manner.
(6) The Information Security Oversight Office shall include in its reports to the President a
summary of the Panels activities.
(b) Functions. The Panel shall:
(1) decide on appeals by persons who have filed classification challenges under section 1.8 of
this order;
(2) approve, deny, or amend agency exemptions from automatic declassification as provided in
section 3.3 of this order; and
(3) decide on appeals by persons or entities who have filed requests for mandatory
declassification review under section 3.5 of this order.
(c) Rules and procedures. The Panel shall issue bylaws, which shall be published in the Federal Register.
The bylaws shall establish the rules and procedures that the Panel will follow in accepting, considering,
and issuing decisions on appeals. The rules and procedures of the Panel shall provide that the Panel will
consider appeals only on actions in which:
(1) the appellant has exhausted his or her administrative remedies within the responsible
agency;
(2) there is no current action pending on the issue within the Federal courts; and
(3) the information has not been the subject of review by the Federal courts or the Panel within
the past 2 years.
(d) Agency heads shall cooperate fully with the Panel so that it can fulfill its functions in a timely and
fully informed manner. An agency head may appeal a decision of the Panel to the President through the
Assistant to the President for National Security Affairs. The Panel shall report to the President through
the Assistant to the President for National Security Affairs any instance in which it believes that an
agency head is not cooperating fully with the Panel.
(e) The Panel is established for the sole purpose of advising and assisting the President in the discharge
of his constitutional and discretionary authority to protect the national security of the United States.
Panel decisions are committed to the discretion of the Panel, unless changed by the President.
(f) Notwithstanding paragraphs (a) through (e) of this section, whenever the Panel reaches a conclusion
that information owned or controlled by the Director of Central Intelligence (Director) should be
declassified, and the Director notifies the Panel that he objects to its conclusion because he has
determined that the information could reasonably be expected to cause damage to the national security

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and to reveal (1) the identity of a human intelligence source, or (2) information about the application of
an intelligence source or method (including any information that concerns, or is provided as a result of,
a relationship with a cooperating intelligence element of a foreign government), the information shall
remain classified unless the Director's determination is appealed to the President, and the President
reverses the determination.
Sec. 5.4. General Responsibilities. Heads of agencies that originate or handle classified information
shall:
(a) demonstrate personal commitment and commit senior management to the successful
implementation of the program established under this order;
(b) commit necessary resources to the effective implementation of the program established under this
order;
(c) ensure that agency records systems are designed and maintained to optimize the safeguarding of
classified information, and to facilitate its declassification under the terms of this order when it no
longer meets the standards for continued classification; and
(d) designate a senior agency official to direct and administer the program, whose responsibilities shall
include:
(1) overseeing the agencys program established under this order, provided, an agency head may
designate a separate official to oversee special access programs authorized under this order.
This official shall provide a full accounting of the agencys special access programs at least
annually;
(2) promulgating implementing regulations, which shall be published in the Federal Register to
the extent that they affect members of the public;
(3) establishing and maintaining security education and training programs;
(4) establishing and maintaining an ongoing self-inspection program, which shall include the
periodic review and assessment of the agencys classified product;
(5) establishing procedures to prevent unnecessary access to classified information, including
procedures that:
(A) require that a need for access to classified information is established before
initiating administrative clearance procedures; and
(B) ensure that the number of persons granted access to classified information is limited
to the minimum consistent with operational and security requirements and needs;
(6) developing special contingency plans for the safeguarding of classified information used in or
near hostile or potentially hostile areas;
(7) ensuring that the performance contract or other system used to rate civilian or military
personnel performance includes the management of classified information as a critical element
or item to be evaluated in the rating of:
(A) original classification authorities;
(B) security managers or security specialists; and

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(C) all other personnel whose duties significantly involve the creation or handling of
classified information;
(8) accounting for the costs associated with the implementation of this order, which shall be
reported to the Director of the Information Security Oversight Office for publication; and
(9) assigning in a prompt manner agency personnel to respond to any request, appeal,
challenge, complaint, or suggestion arising out of this order that pertains to classified
information that originated in a component of the agency that no longer exists and for which
there is no clear successor in function.
Sec. 5.5. Sanctions. (a) If the Director of the Information Security Oversight Office finds that a violation
of this order or its implementing directives has occurred, the Director shall make a report to the head of
the agency or to the senior agency official so that corrective steps, if appropriate, may be taken.
(b) Officers and employees of the United States Government, and its contractors, licensees, certificate
holders, and grantees shall be subject to appropriate sanctions if they knowingly, willfully, or
negligently:
(1) disclose to unauthorized persons information properly classified under this order or
predecessor orders;
(2) classify or continue the classification of information in violation of this order or any
implementing directive;
(3) create or continue a special access program contrary to the requirements of this order; or
(4) contravene any other provision of this order or its implementing directives.
(c) Sanctions may include reprimand, suspension without pay, removal, termination of classification
authority, loss or denial of access to classified information, or other sanctions in accordance with
applicable law and agency regulation.
(d) The agency head, senior agency official, or other supervisory official shall, at a minimum, promptly
remove the classification authority of any individual who demonstrates reckless disregard or a pattern of
error in applying the classification standards of this order.
(e) The agency head or senior agency official shall:
(1) take appropriate and prompt corrective action when a violation or infraction under
paragraph (b) of this section occurs; and
(2) notify the Director of the Information Security Oversight Office when a violation under
paragraph (b)(1), (2), or (3) of this section occurs.
PART 6--GENERAL PROVISIONS
Sec. 6.1. Definitions. For purposes of this order:
(a) "Access" means the ability or opportunity to gain knowledge of classified information.
(b) "Agency" means any "Executive agency," as defined in 5 U.S.C. 105; any "Military department" as
defined in 5 U.S.C. 102; and any other entity within the executive branch that comes into the possession
of classified information.

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(c) "Automated information system" means an assembly of computer hardware, software, or firmware
configured to collect, create, communicate, compute, disseminate, process, store, or control data or
information.
(d) "Automatic declassification" means the declassification of information based solely upon:
(1) the occurrence of a specific date or event as determined by the original classification
authority; or
(2) the expiration of a maximum time frame for duration of classification established under this
order.
(e) "Classification" means the act or process by which information is determined to be classified
information.
(f) "Classification guidance" means any instruction or source that prescribes the classification of specific
information.
(g) "Classification guide" means a documentary form of classification guidance issued by an original
classification authority that identifies the elements of information regarding a specific subject that must
be classified and establishes the level and duration of classification for each such element.
(h) "Classified national security information" or "classified information" means information that has
been determined pursuant to this order or any predecessor order to require protection against
unauthorized disclosure and is marked to indicate its classified status when in documentary form.
(i) "Confidential source" means any individual or organization that has provided, or that may reasonably
be expected to provide, information to the United States on matters pertaining to the national security
with the expectation that the information or relationship, or both, are to be held in confidence.
(j) "Damage to the national security" means harm to the national defense or foreign relations of the
United States from the unauthorized disclosure of information, taking into consideration such aspects of
the information as the sensitivity, value, utility, and provenance of that information.
(k) "Declassification" means the authorized change in the status of information from classified
information to unclassified information.
(l) "Declassification authority" means:
(1) the official who authorized the original classification, if that official is still serving in the same
position;
(2) the originators current successor in function;
(3) a supervisory official of either; or
(4) officials delegated declassification authority in writing by the agency head or the senior
agency official.
(m) "Declassification guide" means written instructions issued by a declassification authority that
describes the elements of information regarding a specific subject that may be declassified and the
elements that must remain classified.
(n) "Derivative classification" means the incorporating, paraphrasing, restating, or generating in new
form information that is already classified, and marking the newly developed material consistent with

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the classification markings that apply to the source information. Derivative classification includes the
classification of information based on classification guidance. The duplication or reproduction of existing
classified information is not derivative classification.
(o) "Document" means any recorded information, regardless of the nature of the medium or the
method or circumstances of recording.
(p) "Downgrading" means a determination by a declassification authority that information classified and
safeguarded at a specified level shall be classified and safeguarded at a lower level.
(q) "File series" means file units or documents arranged according to a filing system or kept together
because they relate to a particular subject or function, result from the same activity, document a
specific kind of transaction, take a particular physical form, or have some other relationship arising out
of their creation, receipt, or use, such as restrictions on access or use.
(r) "Foreign government information" means:
(1) information provided to the United States Government by a foreign government or
governments, an international organization of governments, or any element thereof, with the
expectation that the information, the source of the information, or both, are to be held in
confidence;
(2) information produced by the United States Government pursuant to or as a result of a joint
arrangement with a foreign government or governments, or an international organization of
governments, or any element thereof, requiring that the information, the arrangement, or both,
are to be held in confidence; or
(3) information received and treated as "foreign government information" under the terms of a
predecessor order.
(s) "Information" means any knowledge that can be communicated or documentary material, regardless
of its physical form or characteristics, that is owned by, produced by or for, or is under the control of the
United States Government. "Control" means the authority of the agency that originates information, or
its successor in function, to regulate access to the information.
(t) "Infraction" means any knowing, willful, or negligent action contrary to the requirements of this
order or its implementing directives that does not constitute a "violation," as defined below.
(u) "Integral file block" means a distinct component of a file series, as defined in this section, that should
be maintained as a separate unit in order to ensure the integrity of the records. An integral file block
may consist of a set of records covering either a specific topic or a range of time such as presidential
administration or a 5-year retirement schedule within a specific file series that is retired from active use
as a group.
(v) "Integrity" means the state that exists when information is unchanged from its source and has not
been accidentally or intentionally modified, altered, or destroyed.
(w) "Mandatory declassification review" means the review for declassification of classified information
in response to a request for declassification that meets the requirements under section 3.5 of this order.
(x) "Multiple sources" means two or more source documents, classification guides, or a combination of
both.

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(y) "National security" means the national defense or foreign relations of the United States.
(z) "Need-to-know" means a determination made by an authorized holder of classified information that
a prospective recipient requires access to specific classified information in order to perform or assist in a
lawful and authorized governmental function.
(aa) "Network" means a system of two or more computers that can exchange data or information.
(bb) "Original classification" means an initial determination that information requires, in the interest of
the national security, protection against unauthorized disclosure.
(cc) "Original classification authority" means an individual authorized in writing, either by the President,
the Vice President in the performance of executive duties, or by agency heads or other officials
designated by the President, to classify information in the first instance.
(dd) "Records" means the records of an agency and Presidential papers or Presidential records, as those
terms are defined in title 44, United States Code, including those created or maintained by a
government contractor, licensee, certificate holder, or grantee that are subject to the sponsoring
agencys control under the terms of the contract, license, certificate, or grant.
(ee) "Records having permanent historical value" means Presidential papers or Presidential records and
the records of an agency that the Archivist has determined should be maintained permanently in
accordance with title 44, United States Code.
(ff) "Records management" means the planning, controlling, directing, organizing, training, promoting,
and other managerial activities involved with respect to records creation, records maintenance and use,
and records disposition in order to achieve adequate and proper documentation of the policies and
transactions of the Federal Government and effective and economical management of agency
operations.
(gg) "Safeguarding" means measures and controls that are prescribed to protect classified information.
(hh) "Self-inspection" means the internal review and evaluation of individual agency activities and the
agency as a whole with respect to the implementation of the program established under this order and
its implementing directives.
(ii) "Senior agency official" means the official designated by the agency head under section 5.4(d) of this
order to direct and administer the agencys program under which information is classified, safeguarded,
and declassified.
(jj) "Source document" means an existing document that contains classified information that is
incorporated, paraphrased, restated, or generated in new form into a new document.
(kk) "Special access program" means a program established for a specific class of classified information
that imposes safeguarding and access requirements that exceed those normally required for
information at the same classification level.
(ll) "Systematic declassification review" means the review for declassification of classified information
contained in records that have been determined by the Archivist to have permanent historical value in
accordance with title 44, United States Code.
(mm) "Telecommunications" means the preparation, transmission, or communication of information by
electronic means.

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(nn) "Unauthorized disclosure" means a communication or physical transfer of classified information to
an unauthorized recipient.
(oo) "Violation" means:
(1) any knowing, willful, or negligent action that could reasonably be expected to result in an
unauthorized disclosure of classified information;
(2) any knowing, willful, or negligent action to classify or continue the classification of
information contrary to the requirements of this order or its implementing directives; or
(3) any knowing, willful, or negligent action to create or continue a special access program
contrary to the requirements of this order.
(pp) "Weapons of mass destruction" means chemical, biological, radiological, and nuclear weapons.
Sec. 6.2. General Provisions. (a) Nothing in this order shall supersede any requirement made by or
under the Atomic Energy Act of 1954, as amended, or the National Security Act of 1947, as amended.
"Restricted Data" and "Formerly Restricted Data" shall be handled, protected, classified, downgraded,
and declassified in conformity with the provisions of the Atomic Energy Act of 1954, as amended, and
regulations issued under that Act.
(b) The Attorney General, upon request by the head of an agency or the Director of the Information
Security Oversight Office, shall render an interpretation of this order with respect to any question arising
in the course of its administration.
(c) Nothing in this order limits the protection afforded any information by other provisions of law,
including the Constitution, Freedom of Information Act exemptions, the Privacy Act of 1974, and the
National Security Act of 1947, as amended. This order is not intended to and does not create any right or
benefit, substantive or procedural, enforceable at law by a party against the United States, its
departments, agencies, officers, employees, or agents. The foregoing is in addition to the specific
provisos set forth in sections 3.1(b) and 5.3(e) of this order.
(d) Executive Order 12356 of April 6, 1982, was revoked as of October 14, 1995.
Sec. 6.3. Effective Date. This order is effective immediately, except for section 1.6, which shall become
effective 180 days from the date of this order.

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