In amending the Freedom of Information Act in 1986, Congress created a novel mechanism for protecting certain especially sensitive law enforcement matters, under subsection (c) of the Act. These three special protection provisions, referred to as record "exclusions," are reserved for certain specified circumstances. The record exclusions expressly authorize federal law enforcement agencies, under these exceptional circumstances, to "treat the records as not subject to the requirements of the FOIA."
For more information regarding FOIA Statutory Exclusions, visit http://www.justice.gov/oip/foiapost/2012foiapost9.html
The (c)(1) Exclusion
The first of these novel provisions, known as the "(c)(1) exclusion," provides as follows:
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.
The (c)(2) Exclusion
The second exclusion applies to a narrower situation, involving the threatened identification of confidential informants in criminal proceedings. The "(c)(2) exclusion" provides as follows:
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 [the FOIA] unless the informant's status as an informant has been officially confirmed.
The (c)(3) Exclusion
The third of these special record exclusions pertains only to certain law enforcement records that are maintained by the FBI. The "(c)(3) exclusion" provides as follows:
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 terrorism, and the existence of the records is classified information as provided in [Exemption 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 the FOIA.