Nine Days of FOIA Exemptions: b(9)

Nine Days of FOIA Exemptions: b(9)

What We Talk About When We Talk About The FOIA Exemption About Wells

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Edited by Beryl Lipton

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, we’re wrapping things up with perhaps the rarest of all exemptions: b(9), the one about wells.

Exemption Name: b(9)

AKA : “No, Really, the One About Wells”

Common Reactions: Doesn’t really apply since only a handful of these have been handed out in FOIA’s 50+ year history, but if you did encounter a b(9), we’d imagine it’d go a little something … like this.

What it says: Geological and geophysical information and data, including maps concerning wells.

What that means: What is says - wells. It’s generally assumed that there’s some safety component to this - sort of a “thwarting the Joker’s plan to poison the Gotham reservoir by denying him a map to the reservoir” thing - but if you look into the existing caselaw, it’s actually an extension of the b(4) trade secrets exemption. According to Michael Smith’s great write-up, b(9) was originally intended to apply to oil wells but has since been expanded to apply to water wells as well (heh). Even FOIA’s most stupidly straightforward exemption isn’t immune to abuse.

Who uses it? Nobody really (U. S. Forest Service is one of the few confirmed uses we could find), but since b(9) is so rare and, therefore, misunderstood, it sometimes pops up in unexpected places. Which leads us to …

Silliest example of its use: Much like the Book of Revelation gets something of an inflated reputation due to it being “the last book of the Bible” (cough Apocrypha cough), b(9)’s status as the last FOIA exemption sometimes leads people to assume it’s the most serious or weightiest. Gizmodo reported how a State Department employee allegedly wanted to classify some of Hillary Clinton’s emails under b(9), so they’d be Raiders of the Lost Ark‘d away in the State Department basement, even though that doesn’t make any sense.

In an even nerdier example, Star Trek: Into Darkness decided to make some faux-classified documents for promo material, which it decided to redact under, you guessed it, b(9).

What you can do about it: Get that sucker framed.

Any other resources? Here you go. Seriously, though - has some caselaw, as well as that law blog mentioned above.

Happy appeals! Any other b(9) tips we left out? Let us know via email, on Twitter, or on Facebook.

Image via Obama White House Archives