Can a Letter of Offer and Acceptance be released under the Freedom of Information Act?

Controlled Unclassified Information (CUI) is a term used to collectively describe all unclassified information to which access or distribution limitations have been applied in accordance with applicable national laws, regulations, instructions, manuals, and/or policies.

FOIA is designed to make government information available to the public and, thus, requires openness in government. It is not designed to protect information. It provides that the public is entitled to access to agency records, unless the record is exempt from disclosure.

Congress has stated the U.S. public generally has the right to know what its government is doing. The FOIA requires government information to be made available to the public unless the information falls within one of nine exemption categories, and the appropriate USG official determines the information should be withheld from disclosure. If information is marked CUI, that alone is not sufficient to exempt information from an FOIA request. An independent determination has to be made in response to each and every FOIA request that comes in as to whether a specific FOIA exemption applies. The CUI program allows the agency to protect information as required, but it does not decide a request for release under the FOIA. The nine exemptions are:

• Exemption 1 is classified information. The FOIA permits the withholding of any information properly and lawfully classified under the provisions of E.O. 13526. The other eight exemption categories deal with unclassified but generally sensitive information.
• Exemption 2 permits the withholding of information that pertains solely to the internal rules and practices of a government agency.
• Exemption 3 permits the withholding of information that a statute specifically exempts from disclosure by terms that permit no discretion on the issue, or in accordance with criteria established by that statute for withholding or referring to particular types of matters to be withheld.
• Exemption 4 permits withholding information such as trade secrets and commercial and financial information obtained from a company on a privileged or confidential basis, which, if released, would result in competitive harm to the company.
• Exemption 5 protects inter- and intra-agency memoranda that are deliberative in nature.
• Exemption 6 provides for the withholding of information, the release of which could reasonably be expected to constitute a clearly unwarranted invasion of personal privacy of individuals.
• Exemption 7 permits withholding records or information compiled for law enforcement purposes that could reasonably be expected to interfere with law enforcement proceedings; would deprive a person of the right to a fair trial or impartial adjudication; could reasonably be expected to constitute an unwarranted invasion of personal privacy of others; disclose the identity of a confidential source; disclose investigative techniques; or could reasonably be expected to endanger the life or physical safety of any individual.
• Exemption 8 permits withholding records or information contained in or relating to examination, operation or condition reports prepared by, on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions.
• Exemption 9 permits withholding records or information containing geological and geophysical information and data (including maps) concerning wells.

It is DoW policy to place distribution statements on documents containing unclassified scientific and technical information produced either within the DoW or on its behalf by others. This policy was only marginally directed toward restricting the disclosure of such information to the public and, thus, to foreign persons. Although it was the policy to apply such distribution markings, the practice did not always conform to the policy. The result was that sensitive scientific and technical information occasionally found its way into the public domain, including the foreign public. This potential loophole was resolved by Public Law 98-94, enacted 24 September 1983, which provided the Secretary of Defense (now the Secretary of War) with the authority to withhold from the public critical technologies under Exemption 3 of the FOIA.