Exemptions: The FOIA provides access to federal agency records (or parts of those records) except those protected from release by nine specific exemptions. These are the reasons some SSC records may not be released:
Subsections of Title 5, United States Code, Section 552:
(b)(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 pursuant to such Executive order;
(b)(2) related solely to the internal personnel rules and practices of an agency;
(b)(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;
(b)(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;
(b)(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;
(b)(6) personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
(b)(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 lawful course of a criminal investigation, or by an agency conducting a 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;
(b)(8) contained in or related to examination, operating, or condition reports prepared by, or behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
(b)(9) geological and geophysical information and data, including maps, concerning wells.
(1) exclusion: subject is unaware of existence of records concerning pending criminal law enforcement investigation/proceeding
(2) exclusion: informant records maintained by criminal law enforcement agency where informant status is not known
(3) exclusion: existence of FBI foreign intelligence, counterintelligence or international terrorism records is classified fact
FOIA Appeals:
If the Initial Denial Authority (IDA) declines to provide a record because the IDA considers it exempt, that decision may be appealed by the requester, in writing, to a designated appellate authority. The appeal should be accompanied by a copy of the letter denying the initial request. Such appeals should contain the basis for disagreement with the initial refusal. Appeal procedures also apply to the disapproval of a request for waiver or reduction of fees, and for no record determinations when the requester considers such a response adverse in nature. A requester must be advised that a “no record” response may be considered to be adverse, and if so interpreted, may be appealed using normal appeal procedures. An additional records search shall be conducted and certified, based on the receipt of an appeal to a “no record” response.
Upon receipt of appeal by the requester, the FOIA Officer will open FOIA Request in the FOIA Database, prepare a memorandum of law detailing the basis for the release of, or for the denial of the information requested, maintain direct correspondence with requester, keep a detailed telephone log of all conversations with requester and keep the Initial Denial Authority informed of all open FOIA Appeals. The FOIA Officer may request written clarification from the requester. The FOIA Officer will ask that another search for records be performed and if no new records are found, a signed “No Records Certification” must be provided to the FOIA Officer, which will be forwarded to the Department of the Army FOIA Appeals Officer. An example of the No Records Certification is provided below:
EXAMPLE
NO RECORDS CERTIFICATION STATEMENT
FOR: ________________, Initial Denial Authority, SSC Legal Office
RE: Administrative Appeal of No Records Response
Control/tracking No.: FOIA Log # __________
DATE OF FOIA APPEAL: __________
I certify that on [date(s) of search], I performed a comprehensive [type of search, e.g., physical, electronic, automated, etc. (using proper terminology for the search method used), and state the exact locations(s) of where the search was made, e.g., whose files, type of files, (computer files, paper, tapes, pictures, books, maps, machine readable materials etc,) and where those filed are located]. If such records existed, they would be found within the Office of the XXXXXX, Address. I searched all files that reasonably could be expected to contain the requested records but found no records responsive to the request.
signature (of the searcher)
SIGNATURE BLOCK
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