EXEMPTIONS
Exemption 1: Protects information that is properly classified in the interest of national security pursuant to Executive Order 13526.
Exemption 2: Protects information related solely to the internal personnel rules and practices of an agency.
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Exemption rarely invoked by BOEM
Exemption 3: Protects information exempted from release by statute.
Examples of information BOEM may withhold using Exemption 3 include:
- 16 U.S.C. § 470w-3 - National Historic Preservation Act
- 16 U.S.C. § 470hh - Archaeological Resources Protection Act
- 10 U.S.C. §§ 113 et seq.41 U.S.C. § 4702 - Sunken Military Craft Act, proposals not set forth or incorporated by reference into an awarded contract
- 41 U.S.C. § 2102 - contractor bid or proposal information or source selection information before the award of a procurement contract to which the information relates (applies in post-award situations when the information may be used again in future procurements)
- §470. Short title; Congressional finding and declaration of policy
- (a) This subchapter may be cited as the "National Historic Preservation Act".
- (b) The Congress finds and declares that—
- (1) the spirit and direction of the Nation are founded upon and reflected in its historic heritage;
- (2) the historical and cultural foundations of the Nation should be preserved as a living part of our community life and development in order to give a sense of orientation to the American people;
- (3) historic properties significant to the Nation's heritage are being lost or substantially altered, often inadvertently, with increasing frequency;
- (4) the preservation of this irreplaceable heritage is in the public interest so that its vital legacy of cultural, educational, aesthetic, inspirational, economic, and energy benefits will be maintained and enriched for future generations of Americans;
- (5) in the face of ever-increasing extensions of urban centers, highways, and residential, commercial, and industrial developments, the present governmental and nongovernmental historic preservation programs and activities are inadequate to insure future generations a genuine opportunity to appreciate and enjoy the rich heritage of our Nation;
- (6) the increased knowledge of our historic resources, the establishment of better means of identifying and administering them, and the encouragement of their preservation will improve the planning and execution of Federal and federally assisted projects and will assist economic growth and development; and
- (7) although the major burdens of historic preservation have been borne and major efforts initiated by private agencies and individuals, and both should continue to play a vital role, it is nevertheless necessary and appropriate for the Federal Government to accelerate its historic preservation programs and activities, to give maximum encouragement to agencies and individuals undertaking preservation by private means, and to assist State and local governments and the National Trust for Historic Preservation in the United States to expand and accelerate their historic preservation programs and activities.
- §470hh. Confidentiality of information concerning nature and location of archaeological resources
- (a) Disclosure of information
- Information concerning the nature and location of any archaeological resource for which the excavation or removal requires a permit or other permission under this chapter or under any other provision of Federal law may not be made available to the public under subchapter II of chapter 5 of title 5 or under any other provision of law unless the Federal land manager concerned determines that such disclosure would—
- (1) further the purposes of this chapter or chapter 3125 of title 54, and
- (2) not create a risk of harm to such resources or to the site at which such resources are located.
- (b) Request for disclosure by Governors
- Notwithstanding the provisions of subsection (a), upon the written request of the Governor of any State, which request shall state—
- (1) the specific site or area for which information is sought,
- (2) the purpose for which such information is sought,
- (3) a commitment by the Governor to adequately protect the confidentiality of such information to protect the resource from commercial exploitation,
- the Federal land manager concerned shall provide to the Governor information concerning the nature and location of archaeological resources within the State of the requesting Governor.
Exemption 4: Protects trade secrets and commercial or financial information obtained from a person which is privileged or confidential.
Examples of information BOEM may withhold using Exemption 4 include:
- *Commercially valuable formulas or other proprietary information not customarily released to the public entity from whom the information is obtained
- *Line Item pricing
- *Proposals
- *Identities of sub-contractors
*Following the DOI regulation and policy, we coordinate an Executive Order 12600 Submitter Notice prior to invoking Exemption 4. This process may delay the response time or lead to a Reverse FOIA lawsuit. We notify FOIA requesters of our activities involving the submitter.
Exemption 5: Protects information that concerns communications within (intra-) or between (inter-) agencies; or between BOEM and a consultant, that are protected by legal privileges, that include but are not limited to:
- Attorney-Work Product Privilege
- Attorney-Client Privilege
- Deliberative Process Privilege (opinions, conclusions, recommendations). Here are a few examples of the types of information that we tend to withhold under Exemption 5:
- Draft documents (press releases; publications; articles, reports)
- Peer review comments and colleague review comments
- Preliminary scientifically analyzed data or scientifically analyzed data that is not used in a publication/report
- Models and preliminary data derived from models that are not used in a publication/report
- Portions of emails discussing preliminary results; theories; hypotheses; thoughts, ideas, or suggestions on items to test or study
- Presidential Communications Privilege
- [Government] Commercial Information Privilege (e.g. BOEM conference call numbers and conference call security codes)
Exemption 6: Protects information that would constitute a clearly unwarranted invasion of personal privacy of the individual(s) involved.
Examples of information BOEM may withhold using Exemption 6 include:
- Social Security Numbers
- Home Addresses
- Home and personal cellular phone numbers
- Personal email addresses
- Family and medical information
- Latitude and longitude of private residences
- Credit Card Numbers
- Identifying information about study participants/volunteers
- Dates of birth
- Performance and disciplinary information
Exemption 7: Protects records or information compiled for law enforcement purposes if one of the following harms would occur. Exemption 7 is not limited solely to law enforcement information; it also applies to administrative (i.e. regulatory) proceedings. We may invoke one or more of the following subparagraphs:
- 7(A): interfere with enforcement proceedings
- Typically we invoke this exemption if we have an active and open investigation or inquiry
- 7(B): Would deprive a person of a right to a fair trial or an impartial adjudication
- Information that could potentially contaminate a jury pool
- 7(C): Could reasonably be expected to constitute an unwarranted invasion of personal privacy of a third party/parties
- Typically we invoke this exemption on the identifying information of subjects, victims, complainants and witnesses in an investigation or an inquiry
- Names and identifying information of investigators (typically in Office of Inspector General investigations; Scientific Misconduct or Scientific Integrity inquiries
- 7(D): Protect the identity of a confidential source
- 7(E): Would disclose techniques and procedures for law enforcement investigations or prosecutions
- 7(F): Could reasonably be expected to endanger the life or physical safety of any individual
Exemption 8: Information that concerns the supervision of financial institutions. This exemption rarely invoked by BOEM.
Exemption 9: Geological and geophysical information and data, including maps, concerning wells (oil, gas and water). See the AquAlliance v. U.S. Bureau of Reclamation, No. 14-1018, 2017 U.S. App. LEXIS 8174 (D.D.C. May 9, 2017).
EXCLUSIONS
In amending the Freedom of Information Act in 1986, Congress created a novel mechanism for protecting certain especially sensitive law enforcement matters, under subsection (c) of the Act. These three special protection provisions, referred to as record "exclusions," are reserved for certain specified circumstances. The record exclusions expressly authorize federal law enforcement agencies, under these exceptional circumstances, to "treat the records as not subject to the requirements of the FOIA." For more information regarding FOIA Statutory Exclusions, visit http://www.justice.gov/oip/foiapost/2012foiapost9.html
The (c)(1) Exclusion: Whenever a request is made which involves access to records described in subsection (b)(7)(A) and (A) the investigation or proceeding involves a possible violation of criminal law; and (B) there is reason to believe that (i) the subject of the investigation or proceeding is not aware of its pendency, and (ii) disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, the agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of this section.
The (c)(2) Exclusion: Whenever informant records maintained by a criminal law enforcement agency under an informant's name or personal identifier are requested by a third party according to the informant's name or personal identifier, the agency may treat the records as not subject to the requirements of [the FOIA] unless the informant's status as an informant has been officially confirmed.
The (c)(3) Exclusion: Whenever a request is made which involves access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information as provided in [Exemption 1], the Bureau may, as long as the existence of the records remains classified information, treat the records as not subject to the requirements of [the FOIA].