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A&A: Does Excessive Redaction of FOIA Requested Documents Constitute Censorship?

Q: I have received a FOIA response with 50 percent of the content redacted, which constitutes excessive censorship. U.S. General Services Administration is not a DoD agency nor an intelligence agency. Therefore, GSA excessive redaction rendering the received FOIA response illegible and useless.

A: As you are aware, the Freedom of Information Act (FOIA), 5 U.S.C. § 552, is a federal open records act that provides a mechanism to gain access to public records.  The FOIA requires that a government agency produce existing records that are not otherwise exempt.  5 U.S.C. § 552(a)(2).  Under FOIA, there are nine categories of documents that are exempt from disclosure.  5 U.S.C. § 552(b).  By statute, the agency is required to grant or deny a FOIA request within 20 working days, except “in unusual circumstances,” in which case the agency can extend the deadline by notifying the requestor.  5 U.S.C. § 552(a)(6).  If an agency denies an individual’s FOIA request, it must state the reason for the denial, including identifying and stating how claimed exemptions apply to the records requested, and give the individual an opportunity to appeal the decision.  5 U.S.C. § 552(a)(6).

Before appealing, the requesting individual may request a Vaughn Index which requires the agency to provide a list of the documents it is withholding.  Vaughn v. Rosen (II), 523 F.2d 1136 (D.C. Cir. 1975).  A Vaughn index “must explain specifically which of the nine statutory exemptions to FOIA’s general rule of disclosure supports the agency’s decision to withhold a requested document or to delete information from a released document.”  Founding Church of Scientology of Washington, D.C., Inc. v. Bell, 603 F.2d 945, 947 (D.C. Cir. 1979).  In quickly looking at the documents produced to you, it appears that the agency provided the exemptions for each redaction. As such, a Vaughn Index may not be necessary.

You now have the option of appealing the denial of access to the redacted information.  If your appeal is ultimately denied, you have the option of suing under the FOIA and challenging that decision in court.  You might want to check on the specific FOIA information provided by the agency that you made the request from, which can be found at https://www.gsa.gov/.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries.  In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.  No attorney-client relationship has been formed by way of this response.

 

 

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