Exemption 1


 * This article is part of a series on Exemptions

Introduction
Exemption 1 to the federal Freedom of Information Act authorizes agencies to withhold classified information from disclosure.

Text of Exemption 1

 * (b) This section does not apply to matters that are—
 * (1)
 * (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and
 * (B) are in fact properly classified pursuant to such Executive order;

Applicability
See also Mandatory Declassification Review

Exemption 1 protects from mandatory disclosure matters that are “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.”

President Obama issued the current governing Executive Order on Classified National Security Information, EO 13526, on December 29, 2009. This order supersedes the previous order issued by President Bush on March 25, 2003, EO 12958.

EO 13526 directs that information should not be classified where “there is significant doubt about the need to classify information.” Information can only be originally classified if it meets all four of the following conditions: 1. an “original classifying authority is classifying the information”; 2. “the information is owned by, produced by or for, or is under the control of the United States Government”; 3. “the information falls within one or more of the categories of information” for which classification is allowed; and 4. “the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.”

As provided by EO 13526, only eight categories of information may be considered for classification: 1. “military plans, weapons systems, or operations”; 2. “foreign government information”; 3. “intelligence activities (including covert action), intelligence sources or methods, or cryptology”; 4. “foreign relations or foreign activities of the United States, including confidential sources”; 5. “scientific, technological, or economic matters relating to the national security”; 6. “United States Government programs for safeguarding nuclear materials or facilities”; 7. “vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security”; or 8. “the development, production, or use of weapons of mass destruction.”

An agency may only withhold records under Exemption 1 where the document is “classified in accordance with the procedural criteria of the governing Executive Order as well as its substantive terms,”

Judicial review of Exemption 1 withholdings
In general, a court reviewing a claimed exemption will determine whether the government has satisfied its burden under a de novo standard of review. This means the court reviews the matter fresh, giving no weight or deference to the agency’s decision.

However, in the context of Exemption 1 withholdings, courts frequently give great deference to assessments on the need to keep certain records classified contained in intelligence agency affidavits supporting the withholding of a record. Agencies withholding documents can meet their burden in court of proving the applicability of claimed exemptions by affidavit, and, in the national security context, courts have granted such affidavits “substantial weight.” So long as the affidavits are “[u]ncontradicted,” “plausible,” and “show[] reasonable specificity and a logical relation to the exemption,” they will be “likely to prevail.” A court will generally not second guess the agency’s withholding unless the declarations in its affidavit are contradicted by other evidence before it or there are indications that the agency classified the information in bad faith.

An alternative: MDR
''See Mandatory Declassification Review for more information. ''

While not an issue arising within the context of FOIA, Mandatory Declassification Review (MDR) is another avenue to consider when seeking classified records. You may instead seek declassification of the information through the separate MDR process outlined in EO 13526 as an alternative to filing a FOIA request and challenging an Exemption 1 withholding through the FOIA appeal process.