A guide to the FOIA exemptions in the newly-released version of the Mueller Report

A guide to the FOIA exemptions in the newly-released version of the Mueller Report

New release replaces the four categories of withheld information with seven exemptions

Written by
Edited by Michael Morisy

Yesterday, in response to FOIA lawsuits by BuzzFeed News and the Electronic Privacy and Information Center, the Justice Department released a new version of the Mueller Report, replacing the much-mocked ersatz exemption categories with actual FOIA exemptions.

Here’s what those exemptions are, and what they mean.

b(3)

What it says: “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 issue or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.

What it might mean in the context of the Mueller Report: This one’s tricky, as b(3) broadly covers any other law or statute blocking disclosure. However, in the cover letter accompanying the new release provided to Jason Leopold, the DOJ clarified that exemption was being used to cover the National Security Act of 1947 and Rule 6(e) of the Federal Rules of Criminal Procedure.

In an earlier piece speculating about what exemptions would be featured in the report, Michael Morisy wrote that the counter-intelligence nature of the exemption made it likely that b(1), the national security exemption, would be a factor. Although b(1) didn’t grace the report with its presence, a b(3) citing the National Security Act of 1947 serves pretty much the same function. 6(e), which bars the release of grand jury material, is also covered in that previous article.

Read more on the exemption in our guide here.

b(5)

What it says: “Inter-agency or intra-agency memorandums or letters that would not be available by law to a party.”

What it might mean in the context of the Mueller Report: Surprisingly, the much-loathed “deliberative process privilege” appears to be used very sparingly in the report - which makes those times it was cited all the more interesting.

Read more on the exemption in our guide here.

b(6)

What it says: “Personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”

What it might mean in the context of the Mueller Report: Typically, the privacy exemption would cover any non-public figures that were not directly part of the investigation. However, in several occasions in the report, b(6) appears to be used in conjunction with several other exemptions as part of an “ongoing investigation” suite.

Read more on the exemption in our guide here.

b(7)a

What it says: 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

What it might mean in the context of the Mueller Report: b(7)a is typically referred to as the “open investigation” exemption, and would be used in cases where the information is relevant to an ongoing case separate from the report.

Read more on the exemption in our guide here.

b(7)b

What it says: Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:

B. Would deprive a person of a right to a fair trial or an impartial adjudication

What it might mean in the context of the Mueller Report: b(7)b is used almost identically to b(7)a, with the difference being an “imminent trial” as opposed to an “ongoing investigation.”

Read more on the exemption in our guide here.

b(7)c

What it says: Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:

C. Could reasonably be expected to constitute an unwarranted invasion of personal privacy

What it might mean in the context of the Mueller Report: b(7)c could be considered a duplicate exemption of b(6), with the minor difference being it only concerns law enforcement records.

Read more on the exemption in our guide here.

b(7)e

What it says: Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:

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

What it might mean in the context of the Mueller Report: “Law enforcement techniques” would cover whatever forms of surveillance that was used by law enforcement to compile this information.

Read more on the exemption in our guide here.

Read the newly-released version of the report embedded below, and check out our ongoing crowdsourcing projects related to the Mueller Report here and here.


Image via FBI.gov