FOIA does not just require you to redact. It requires you to show, on the released page, how much you took out and which exemption you used — and where feasible, to show it at the spot where the deletion was made.

Most redaction software markets accuracy. The statutory obligation is about disclosure of the redaction itself, and that is a documentation problem as much as a tooling one.

What the statute actually requires

Under 5 U.S.C. 552(b), in the sentence immediately following the exemptions, the amount of information deleted and the exemption under which the deletion is made shall be indicated on the released portion of the record. The amount-marking requirement dates to the 1996 FOIA amendments; the exemption requirement was added by Section 12 of the OPEN Government Act.

And if technically feasible, that indication must also appear at the place in the record where such deletion is made.

There is one exception, and it is narrow: marking is not required unless including that indication would harm an interest protected by the exemption. The Department of Justice’s Office of Information Policy guidance, updated 6 December 2022, says such situations will be rare and that in the vast majority of cases, the exception to the marking requirement is not applicable.

Segregability is the other obligation

The same subsection provides that any reasonably segregable portion of a record shall be provided after the exempt portions are deleted. OIP calls this a fundamental tenet of the Act. It is not discretionary, and a court will consider it on its own motion — in Stolt-Neilsen Transportation Group Ltd. v. United States, 534 F.3d 728, 734 (D.C. Cir. 2008), a district court was held to have an affirmative duty to consider reasonable segregability even where the requester never raised it.

Which means withholding a document in full, when parts of it could have been released, is an error that surfaces without anyone complaining about it.

The mechanics that follow from that

• Mark every page that contains a redaction, not just the first one
• Place the exemption notation at the point of deletion where feasible — OIP’s examples put it inside the blacked-out space, use arrows connecting the redaction to a notation, or place it at the end of the redacted line, and it states those examples are not exclusive
• Use blacking out, bracketing or boxing. OIP says not to use white-out, which leaves no indication that anything was removed
• Regenerate the text layer from the redacted image. A redaction on the image does nothing if the extracted text beside it still carries the words
• Check metadata fields separately — a redacted subject line is still in the subject field
• Keep a per-document log of what was redacted and under which exemption as the work proceeds, because that log is the raw material for an index later

Where we sit, precisely

We are a litigation support company, not FOIA counsel. The exemption determinations are the agency’s and its counsel’s. What we do is the production work that sits around those determinations: applying the redactions consistently at volume, marking them to the statutory requirement, regenerating text, checking metadata and embedded content, and building the log.

That division is the same one we already run on privilege review for litigation, and it is the reason this work fits us rather than being a stretch.

At volume

A large release is a consistency problem. The same exemption applied three different ways across four tranches is what produces an appeal. We work from a single coding scheme agreed before the first tranche, with QC sampling against it, and reporting at the interval the agency requires.

What we do

Pro-Legal Services, Inc. provides FOIA redaction services to agencies and their counsel from Arlington, Virginia — redactions applied at volume to a single agreed scheme, marked to the requirements of 5 U.S.C. 552(b), text regenerated from the redacted image, metadata and embedded content checked, and a per-document log built as the work proceeds.

Small business, minority-owned, SAM registered, prime or subcontractor. CUI handled under the applicable requirements and the agency’s handling instructions.

Related: Vaughn index support, FOIA response document processing, public records redaction, redaction log preparation, burned in redaction, confidential business information redaction, metadata scrubbing legal.

Pro-Legal Services, Inc. supports agency FOIA operations from Arlington, Virginia, minutes from the District of Columbia, and remotely for agencies nationwide.

Release running across multiple tranches? Send us the exemption scheme and the volume. Consistency across tranches is the thing that prevents an appeal. Pro-Legal Services, Inc. · 1550 Wilson Blvd, Suite 250, Arlington, VA 22209 · 202-955-9400 · info@pro-legal.com