Magazine article The News Media and the Law (Online)

Asked and Answered - FOIA Exemption Waivers

Magazine article The News Media and the Law (Online)

Asked and Answered - FOIA Exemption Waivers

Article excerpt

Q: Can the government withhold information under a FOIA exemption if the same information has already been released?

A: In general, the federal government can withhold any information that falls within one of the nine exemptions to FOIA. However, there are certain situations in which even if an exemption could apply, the government must release the information pursuant to a FOIA request. This type of waiver arises when "the information has officially entered the public domain."

The key word there is officially. The government does not waive its exemption options under FOIA if information becomes public through an unauthorized leak or other illegal disclosure. An "authoritative government official" must have allowed the information to be made public.

In order for the government to have waived exemptions, the scope of the information sought must match the information publicly released. This means that the government doesn't waive its right to withhold material that gets into more specifics than publicly available information does. …

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