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Questions about Making OUO Determinations - OUO and the FOIA Exemptions

Why is OUO linked to the Freedom of Information Act (FOIA) exemptions?

Under the FOIA, any person can request any information from the Government and get it - except for information falling under any one of the nine exemptions specified in the FOIA. Therefore, trying to control information that doesn't fall under the FOIA exemptions wastes Government resources since such information must ultimately be released. As a result, one of the criteria you must use when deciding if information is OUO is whether it falls under a FOIA exemption.

Note that information under the purview of a topic in classification or UCNI guidance or in program-issued guidance, has already been determined to fall under a FOIA exemption, and further analysis is not necessary. If information is identified as OUO in a guide, it must be marked and protected as OUO.

Are documents marked OUO automatically exempt under the FIOA?

No! The FOIA mandates the release of information to the public except in specifically defined circumstances. OUO markings are only used to control information internally within DOE and to advise other agencies that the information contained in a document is sensitive. Whenever a document is requested under the FOIA, regardless of markings, it must be analyzed by an authorized FOIA official to determine if any information within the document is exempt. FOIA officials will conduct an analysis and determine if information meets the criteria to be exempt from the FOIA. In most cases, the FOIA official will remove the exempt information and release portions of the document that are not exempt.

What are the FOIA exemptions?

There are nine FOIA exemptions. OUO concerns only unclassified information, therefore Exemption 1, which pertains to information classified by Executive order, never applies to OUO. OUO information must fall under at least one of the remaining eight FOIA exemptions. Following is an overview of these exemptions with examples:

Exemption 2, Circumvention of Statute

A Supreme Court decision in March 2011, redefines the use of Exemption 2. Exemption 2 no longer applies to Circumvention of Statute information. Because this has been the sole basis for Exemption 2, the Exemption no longer applies to OUO.

In response to the decision, and based on review of the FOIA exemptions, the Office of Classification issued Policy Bulletin 4, Exemption 2 Guidance (POL-4). POL-4 permits persons making OUO determinations based on guidance to use "Exemption 7, Law Enforcement" in place of Exemption 2 because in most cases, this is an appropriate exemption for DOE security-related information. As guides are reviewed, guide topics that cite Exemption 2 will be analyzed and revised to reflect the appropriate exemption. It is important to note that POL-4 applies only to OUO determinations based on guidance and not to FOIA reviews or to OUO determinations outside of guidance. In such cases blanket use of Exemption 7 in place of 2 is not appropriate. For any FOIA denial that would have previously cited b(2), each FOIA exemption must be examined to determine the appropriate exemption. The same must be done for OUO determinations outside of guidance.

Exemption 3, Statutory Exemption

Within DOE, the Atomic Energy Act is an Exemption 3 statute that is the legal basis for the classification of Restricted Data, and Formerly Restricted Data, and the control of Unclassified Controlled Nuclear Information. These types of information are classified or controlled under other regulations or directives and, therefore, there is no need to designate such information as OUO.

Unless you or someone in your office has experience with information that may be OUO using Exemption 3, it may be difficult to determine if Exemption 3 could apply. If you think information in a document might be OUO using an Exemption 3 statute that is not included in the examples below, you may contact the Office of Classification Outreach Program at (301) 903-7567 or outreach@hq.doe.gov for assistance.

Examples of Exemption 3 OUO information/documents:

  • Federal Technology Transfer Act. Requires a Federal Agency to protect any commercial and confidential information that results from a Cooperative Research and Development Agreement with a non-Federal party for a period of 5 years after its development.
  • Export Administration Act (for nuclear information, the Atomic Energy Act). Allows for the control of technology and other information whose foreign release requires an export license [known as Export Controlled Information (ECI)]. Of particular interest to DOE is sensitive nuclear technology described in the Atomic Energy Act.
  • Other Statutes. Many other statutes also specifically exempt other kinds of information from disclosure; therefore, it is impossible to provide a definitive list here. The following are examples of other exemption 3 statutes that may apply to certain organizations within DOE:
    • Patent Act (patent applications)
    • Procurement Integrity Act (source selection information)
    • Technical Data Statute (Department of Defense technical data)
    • Internal Revenue Code (tax information)

Exemption 4, Commercial/Proprietary

Exemption 4 OUO information encompasses:

  1. Trade Secrets - A trade secret is "a secret, commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort." Trade secrets are often technical in nature.
  2. Commercial or Financial Information - Information that is (a) commercial or financial, (b) obtained from a person (includes corporations), and (c) privileged or confidential. Commercial or financial information is usually not technical in nature.

The following should be considered in deciding whether a document may be OUO under Exemption 4:

  1. If submission of the information is required by the Government, would release of the information impair the Government's ability to obtain information? If it would impair the Government's ability, it could be OUO.
  2. If submission of the information is required by the Government, would release of the information cause harm to the competitive position of the person submitting the information or adversely impact program effectiveness? If release could cause harm or impact program effectiveness, the information could be OUO.
  3. If the submission is voluntary, would the person usually release the information to the public? If the person has or would usually release the information to the public, it is not OUO.

Examples of Exemption 4 OUO information/documents:

  • Trade secrets (including inventions and discoveries).
  • Commercial or financial information in connection with bids, contracts, or proposals and other related information received in confidence. Included is foreign ownership, control, or influence information.
  • Statistical data and commercial or financial information concerning contract performance, income, profits, losses, and expenditures, if offered and received in confidence from a contractor or potential contractor. This includes business sales statistics, research data, technical designs, customer and supplier lists, overhead and operating costs, and information on financial conditions.
  • Information dealing with scientific and manufacturing processes or developments concerning technical or scientific data or other information submitted with a contract proposal or as part of a report while the contract is in progress.
  • Agency credit card numbers and bank account numbers.
  • Information relating to the security of commercial entities performing work for the Government.

Exemption 5, Privileged Information

Although there are many categories of privileged information, the privilege most likely to be used within DOE is the deliberative process privilege (also known as "executive privilege"). This privilege ensures that Agency staff is free to make candid comments in the formulation of Agency policies. If every rejected comment were required to be made public, it would have a "chilling effect" on the willingness of the Agency staff to provide their best input, hurting the quality of Agency policies. The following factors should be considered when deciding whether information can be OUO under Exemption 5:

  1. The document must be for inter-agency or intra-agency communication only. This means that any document not generated for public release may be considered an inter-agency or intra-agency document.
  2. Release of the document could cause harm to the process of developing Agency policy because such release could:
    1. discourage open, frank discussions concerning draft policies;
    2. cause premature disclosure of proposed policies before they are finally adopted; and
    3. cause confusion in the public that could result from disclosing reasons and rationales that were not ultimately the grounds for an Agency's action.
  3. A draft document should only be OUO under Exemption 5 if its release could harm the deliberative process.

Examples of Exemption 5 OUO information/documents:

  • Draft or final documents that contain advice, opinions, or recommendations on new or revised Government decisions and policies, regardless of whether prepared by Federal employees, contractors, consultants, etc.
  • Evaluations of contractor performance and their products and services by DOE personnel.
  • Information of a speculative, tentative, or evaluative nature concerning proposed plans to procure, lease, or otherwise acquire and dispose of materials, real estate, facilities, or functions when such information would provide undue or unfair competitive advantage to private personal interests or would impede legitimate Government functions.

Exemption 6, Personal Privacy

Exemption 6 OUO information protects personal information related to a specific individual that, if disclosed, might cause personal distress or embarrassment or could lead to identity theft. Exemption 6 includes Personally Identifiable Information (PII).

Examples of Exemption 6 OUO information/documents:

  • Personal details (e.g., social security number, citizenship data, date of birth, marital status, religious affiliation, sexual orientation or associations, medical conditions, criminal history, financial data).
  • Performance appraisal/evaluation reports.
  • Evaluation of candidates for employment or security clearances.
  • Personnel matters in which administrative action, including disciplinary action, may be taken.

Exemption 7, Law Enforcement

Exemption 7 protects from disclosure records or information compiled for law enforcement purposes (including criminal and civil enforcement). The information does not have to have been created for law enforcement but could be used later for law enforcement purposes. It may also be related to the prevention of illegal activities. It includes information that:

  1. could reasonably be expected to interfere with enforcement proceedings,
  2. would deprive a person of a right to a fair trial or an impartial adjudication,
  3. could reasonably be expected to constitute an unwarranted invasion of personal privacy,
  4. 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 that furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source,
  5. 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
  6. could reasonably be expected to endanger the life or physical safety of any individual.

Examples of Exemption 7 OUO information/documents:

  • Statements of witnesses and other material developed during the course of an investigation and all materials prepared in connection with related Government litigation or adjudicative proceedings.
  • The identity of firms or individuals being investigated for alleged irregularities involving contracting with DOE when no indictment has been obtained or no civil action has been filed against them by the United States.
  • Information obtained in confidence, expressed or implied, in the course of a criminal investigation by a criminal law enforcement Agency or a lawful national security intelligence investigation conducted by an authorized Agency or an office within DOE. National security intelligence investigations include background security investigations and those investigations conducted for the purpose of obtaining affirmative or counterintelligence information.
  • Information from which a confidential source may be identified.
  • Law enforcement manuals and guidelines.
  • Information concerning homemade weapons that could assist a criminal element and might result in harm to individuals or property.
  • Security measures to protect Federal property and personnel.

Exemption 8, Financial Institutions

Exemption 8 concerns information that is prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions. Because DOE is not an Agency that regulates or supervises financial institutions (e.g., the Federal Deposit Insurance Agency), it is very unlikely this exemption would be used by DOE employees.

Exemption 9, Wells

Exemption 9 concerns geological and geophysical information and data concerning wells. Exemption 9 OUO information can concern any kind of well (e.g., oil, natural gas, water, geothermal), but is generally limited to technical or scientific information about the well.

Examples of Exemption 9 OUO information/documents:

  • Geological information
  • Geothermal well BTU production
  • Ground water inventories and well yields
  • Natural gas reserves