With Sunshine Week just around the corner, we wanted to count down the days to our favorite time of year with a closer look at what’s going on behind the black bars: the nine federal FOIA exemptions. Today, one of the lesser-known exemptions: b(2), the … uh … lesser-known one.
Exemption Name: b(2)
AKA : “The Cafeteria menu one” “Wait, which one is b(2) again?”
Common Reactions: “Oh, right. That b(2).”
What it says: “Related solely to the internal personnel rules and practices of an agency.”
What that means: Internal agency personnel rules and practices, which can apply to anything from trivial HR matters to broad details about how an agency operates day-to-day. Justice Department guidance further differentiates from “internal matters of a relatively trivial nature,” or “low” b(2), and “more substantial internal matters, the disclosure of which would risk circumvention of a legal requirement” or “high” b(2).
Who uses it? Almost nobody uses it frequently, but since it’s pretty broad and not well-known, expect the nitpickier agencies like the State Department to toss it around.
Silliest example of its use: Not really silly, per se, but to further illustrate the “low” and “high” types of b(2), just compare the National Security Agency’s list of b(2) uses:
with the State Department’s …
Identifying America’s enemies versus shooting GoDaddy an email: same exemption.
What you can do about it: b(2) is rarely invoked by itself, operating more as an “Oh, and another thing …” exemption. If you’re getting denied something, chances are that b(2) isn’t doing the heavy lifting.
Any other resources? The language in b(2) is worryingly vague and does have the potential to be abused by a particularly creative FOIA officer. If that happens, the Reporter’s Committee for the Freedom of the Press has some great resources. Also, early MuckRock user Jason Smathers requested lists of agency uses of b(2) back in 2011, which will give you plenty of examples of when agencies feel like trying something different.
Image via Obama White House Archives