FOIA Exemption 1: National Security
Under 5 U.S.C. 552(b)(1), national defense or foreign policy information that have been properly classified by an Executive Order to be kept secret are precluded from disclosure in an FOIA request. The FBI applied this exemption to documents that contained information regarding actual intelligence activities and the methods used by the FBI in foreign counter intelligence operations. Despite CREW’s argument that they were seeking information on domestic drone use, the court held that the record disclosure could reveal foreign targets and the drones’ limitations. Thus, it was properly withheld under this exemption.
FOIA Exemption 4: Trade Secrets
Under 5 U.S.C. 552(b)(4), an agency may refuse to disclose records that contain trade secrets and commercial or financial information that are privileged or confidential. The DOJ withheld solicitation-related material, operator manuals and a vendor training schedule. CREW contended that the information withheld was not confidential and thus not exempt under the trade secrets exception.
According to the court, the test for confidentiality depends on whether the information was submitted to the government voluntarily or involuntarily. Involuntarily submitted information is considered confidential only if releasing the information would impair the Government’s ability to obtain necessary information in the future or cause substantial harm to the submitter’s competitive interests.
Here, the court held that the release of the withheld information could have an adverse effect on the competitiveness of vendors required to turn that information over to the government. Public release of this information would allow competitors to underprice for government contracts or improve technology based on the released records. This met the requirements for the rule and the court ruled for the DOJ.
FOIA Exemption 7(E): Law enforcement
Under 5 U.S.C. 552(b)(7), agencies may withhold information that has been compiled for law enforcement purposes if disclosing that information would reveal the techniques and procedures for law enforcement and could risk circumvention of the law. CREW challenged the FBI’s use of this exemption to withhold information regarding UAV operational capabilities and equipment specifications, the identities of UAV vendors and suppliers, and UAV training, pilot qualifications, and funding details. The court found that the information was properly withheld because the release of such information could reveal key details of law enforcement techniques and risk the possibility of individuals circumventing the law.