Exemption 3


 * This article is part of a series on Exemptions

Introduction
Exemption 3 to the federal Freedom of Information Act allows the government to withhold records that are “specifically exempted from disclosure” by statutes other than FOIA.

There are two ways in which a statute can qualify as an Exemption 3 statute. One, the statute “requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue.” Two, the statute at issue “establishes particular criteria for withholding or refers to particular types of matters to be withheld.” In addition to satisfying one of those criteria, if the statute was enacted after the OPEN FOIA Act of 2009 – that is, after October 28, 2009 – it must specifically cite to FOIA Exemption 3 to qualify for the exemption.

There are literally hundreds of “Exemption 3” statutes found in federal law. While these statutes typically protect personal, defense, or contract information, they can also at times protect narrow, special interests.

Text of Exemption 3
(b) This section does not apply to matters that are—
 * (3) specifically exempted from disclosure by statute (other than section 552b of this title), if that statute—
 * (A)
 * (i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or
 * (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and
 * (B) if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph.

Examples of Statutes that Do/Do Not Qualify as Exemption 3 Statutes
A representative sampling of the hundreds of statutes the government has used to withhold information under Exemption 3 is below. These examples are meant to provide guidance on the types of materials that the government protects under this exemption, but is certainly not an exhaustive list.


 * CIA Intelligence/Organization: A provision in the National Security Act provides that the CIA must withhold “intelligence sources and methods,” and a provision in the CIA Act instructs the agency to withhold information about “the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency.” Courts have held that the plain meaning and legislative history of the phrase “intelligence sources and methods” as “giv[ing] the Director of Central Intelligence broad power to protect the secrecy and integrity of the intelligence process.” For example, the U.S. Supreme Court held that the names of scientific researchers who provided intelligence information to CIA were protected “intelligence sources.” The court reasoned that the relevant research “was related to the Agency's intelligence-gathering function in part because it revealed information about the ability of foreign governments to use drugs and other biological, chemical, or physical agents in warfare or intelligence operations against adversaries.”


 * Critical Infrastructure Information: Under the Homeland Security Act, “critical infrastructure information (including the identity of the submitting person or entity) that is voluntarily submitted to a covered Federal agency for use by that agency regarding the security of critical infrastructure and protected systems, analysis, warning, interdependency study, recovery, reconstitution, or other informational purpose” is exempt from disclosure under Exemption 3.


 * Grand Jury Information: Federal Rule of Criminal Procedure 6(e) disallows disclosure of a “matter occurring before the grand jury.” Courts have held this rule protects grand jury transcripts and “documents subpoenaed as exhibits,” as well as “the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of the jurors, and the like.”


 * Tax Return Information: Under the Internal Revenue Code, the IRS can withhold tax “[r]eturns” and “return information.” Protected information includes taxpayers’ names and financial data, including information such as their “assets” and “net worth.” The code provides that the nondisclosure provisions do not apply to “data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer.” However, the U.S. Supreme Court has held that “as with a return itself, removal of identification from return information would not deprive it of protection under” this nondisclosure provision, and agencies are not required to make such redactions. The U.S. Court of Appeals for the District of Columbia has held, however, that “reformulation of the return information into a statistical study or some other composite” in a way that assures “that a taxpayer’s identity will in fact not be disclosed” does not fall under this statute. For example, a court held that “compilations of data, compiled by the IRS from individual taxpayer returns” was not protected under this statute where the data was merely a list of information about timber tracts and amount of timber and did not include return information.


 * Veteran’s Information: A provision in the Veterans’ Benefits law prohibits the disclosure of names and addresses of present or former members of the Armed Forces. Another provision bars the release of medical records for Veterans Health Administration patients diagnosed with or treated for drug or alcohol abuse, HIV infection, or sickle cell anemia.


 * Visa and Immigration Information: The Immigration and Nationality Act deems confidential “records of the Department of State and of diplomatic and consular offices of the United States pertaining to the issuance or refusal of visa or permits to enter the United States.” The justification for this nondisclosure provision is to protect the privacy of visa applicants and “maintain the confidentiality of the decision-making process.” For that reason, the exempt information includes “not only . . . the information supplied by the visa applicant, but also any information revealing the thought processes of those who rule on the application.” For example, a court upheld an agency’s withholding of documents related to certain individuals’ entry into the country where they were retrieved from a database used by agency officials in determining individuals’ eligibility for visas.

Some examples of statutes that courts have held do not qualify for Exemption 3 are below.


 * Privacy Act: The Privacy Act of 1974 provides that with some exceptions, “No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains.” The U.S. Supreme Court has affirmed that the Privacy Act is not an Exemption 3 withholding statute. That is because the Central Intelligence Information Act amended the Privacy Act by adding a provision that “[n]o agency shall rely on any exemption in [the Privacy Act] to withhold from an individual any record which is otherwise accessible to such individual under the provisions” of FOIA. (For more information on the Privacy Act, see the chapter, The Privacy Act and FOIA).


 * Medical Device Safety and Effectiveness: A court has held that a section of the Federal Food, Drug, and Cosmetic Act that provides that — in some circumstances — public availability of summaries of information about “the safety and effectiveness of a device” is not an Exemption 3 statute. The court explained that this was “primarily, if not exclusively, a disclosure statute,” and did not prohibit the disclosure of records.


 * Postal Reorganization Act: A court has held that the provision of this Act that states that the law “shall not require the disclosure of . . . investigatory files, whether or not considered closed, compiled for law enforcement purposes except to the extent available by law to a party other than the Postal Service” is not an Exemption 3 statute. The court reasoned that the law “gives the agency complete discretion to grant or withhold” such files.


 * Trade Secrets Act: The Trade Secrets Act provides for penalties for agency employees who wrongfully release information relating to “trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association,” or income returns. A court held that it does not qualify as an Exemption 3 statute because an agency makes the decision — in adopting regulations — of determining what types of materials would constitute an “unauthorized” release under the law, and the law does not “direct[] or guide[] an agency in deciding whether it ought to exercise its power to authorize revelation of officially collected commercial and financial data.” Further, the court found the list of materials listed in the statute to be an “oceanic,” “encyclopedic” “laundry list” that does not have the specificity needed to qualify as a statute that bars the release of “particular types of matters.”

Strategies for challenging Exemption 3 withholdings
There are two main ways to challenge a FOIA denial under this exemption. First, you can argue that the statute the government cited does not meet the criteria set forth in the language of Exemption 3,i.e., that the statute leaves some discretion on whether or not to withhold the materials and does not establish specific criteria for when to grant or deny requests. Additionally, statutes written after the OPEN FOIA Act of 2009, enacted on October 28, 2009, must — in addition to meeting one of the two criteria — also specifically cite to Exemption 3 to qualify for the exemption.

A second way to challenge an Exemption 3 denial is to argue that the statute that the government cites does not protect the information sought. That is, you may argue that the particular record is outside the scope of materials the statute protects.

You should note that discretionary disclosures are unlikely under this exemption, as Exemption 3 statutes often state that a record “shall not be disclosed.” Instead, where the statute is arguably a valid Exemption 3 statute, you should make a strong argument for why the record does not fall within the scope of records it covers.

Statute Does Not Qualify as Exemption 3 Statute
In its denial letter, the government should cite the specific statute it used to justify rejecting a FOIA request pursuant to Exemption 3. In arguing that the statute does not qualify as an Exemption 3 statute, you should first attempt to look for instances in which a court has already held that the specific statute does not qualify, and cite any such cases in your appeal. Another resource you may want to consult is the United States Department of Justice’s listing of all statutes that courts have found to qualify under Exemption 3. However, you should note some limitations of the list. It does not include statutes that courts have ruled do not qualify as Exemption 3 statutes nor does it address statutes which have not yet been considered by a court for Exemption 3 status. Additionally, the list was last updated in August 2011, so you may still need to research case law in case a court has issued a ruling related to the purported Exemption 3 statute since that time.

Also note that absent a ruling from the United States Supreme Court, there is always the possibility that a court not bound by a particular ruling of another court may not agree that a statute qualifies as an Exemption 3 statute. However, this is likely more important in the litigation stage rather than in the administrative appeals process, as the agency will likely continue to rely on the established, favorable ruling at the administrative stage.

Is the Authority Cited a "Statute"?
As the U.S. Court of Appeals for the District of Columbia Circuit has stated, “Exemption 3 is explicitly confined to materials exempted from disclosure ‘by statute.’” A “statute” for Exemption 3 purposes is a rule “affirmatively adopted by the legislature.” For example, that court held that the Federal Rule of Civil Procedure 26(c) was not a “statute” under this definition because it was a rule issued by the U.S. Supreme Court. While Congress had delegated the power to make such rules to the Supreme Court, and Congress could reject proposed rules, they had not been “affirmatively adopted by” Congress.

In contrast, a court held that Federal Rule of Criminal Procedure 6(e), which prohibits the disclosure of a “matter occurring before the grand jury,” did meet the definition of “statute” for Exemption 3 purposes. The U.S. Supreme Court had adopted certain amendments to the rules, and Congress then “voted to delay the effective date of several of the proposed rules, among them Rule 6(e), ‘until August 1, 1977, or until and to the extent approved by Act of Congress, whichever is earlier.’” Then, by passing a statute, Congress “enacted a modified version of Rule 6(e) in substantially its present form.” The Court held that Rule (6)(e) was therefore a statute, as it “was positively enacted by Congress.”

Therefore, if the agency cites a regulation or other legal authority that has not been “affirmatively adopted by” Congress, you should argue that it is not an Exemption 3 “statute.”

Does the Statute "Require" Nondisclosure?
If you are in fact dealing with a statute, rather than an agency regulation or court rule (and it is extremely like you will be), you should next examine whether it meets one of the two criteria for an Exemption 3 statute.

Requires Withholding With No Discretion
One requirement for Exemption 3 qualification is that the statute “requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue.” For example, a court held that a statute relied on by the Bureau of the Census met this criteria where it provided that “Neither the Secretary nor any other officer. . . may. . . use the information furnished under the provisions of this Title for any purpose other than the statistical purposes for which it is supplied.” The court ruled that this was “a clearly and strongly worded prohibition against disclosure which would qualify under Exemption 3,” as “it was “a flat barrier to disclosure with no exercise of discretion permitted.” Further, the statute “refer[red] to the particular type of matter to be withheld,. . . emphatically including ‘the information furnished under the provisions of this Title’ and forbidding its use ‘for any purpose other than the statistical purposes for which it is supplied.’”

In contrast, a court held that a statute did not meet this standard where it provided that certain information was to be held confidential “unless the head of such department or agency determines that the withholding thereof is contrary to the national interest.” Therefore, if an agency claims that a statute meets this criterion of an Exemption 3 statute, you should challenge that assertion by demonstrating, if possible, that the statute gives the agency discretion with respect to the decision to withhold. This will likely require you to review the entire text of the cited statute. Any language that suggests an agency may choose to release information under certain conditions may open the door to challenge the statute’s “Exemption 3” status.

"Establishes Particular Criteria for Withholding or Refers to Particular Types of Matters to Be Withheld"
The second basis on which a statute can qualify as an Exemption 3 statute is where it “establishes particular criteria for withholding or refers to particular types of matters to be withheld.” Where the language of the statute does not provide such criteria or identify specific matters, you should argue that it does not qualify under Exemption 3.

The U.S. Court of Appeals for the District of Columbia has clarified that a statute meets this criterion “only if” the statute “is the product of congressional appreciation of the dangers inherent in airing particular data and incorporates a formula whereby the administrator may determine precisely whether disclosure in any instance would pose the hazard that Congress foresaw.” Therefore, where an agency claims the statute meets this criterion for an Exemption 3 statute, you should challenge whether it establishes a “formula” for withholding information in order to prevent a specific harm.

As provided in the legislative history of Exemption 3, the Atomic Energy Act of 1954 is an example of a statute that “establishes particular criteria for withholding,” as it “provides explicitly for the protection of certain nuclear data.” As one court explained, that statute “direct[s] that information be released only if it ‘can be published without undue risk to the common defense and security.’”

In contrast, a court rejected an agency’s assertion that the Endangered Species Act was “a statute that establishes particular criteria for withholding particular matters.” The law gave the Secretary of the Interior the authority to designate a habitat of a species as a “critical habitat” to “the maximum extent prudent and determinable,” as well as the discretion to “exclude any area” from such designation where it would be more beneficial to do so.

The Department of the Interior argued that since the statute provided “criteria for determining whether it would be ‘prudent,’ to include or withhold particular location information in the critical habitat designation,” it could be used as an Exemption 3 statute to withhold the locations of pygmy owls and their nests. However, looking to “the plain language of the statute,” the court found that there was nothing in its text “that refers to withholding information.” That is, to qualify as an Exemption 3 statute, it “must on its face exempt matters from disclosure.”

The agency in that case also argued that the legislative history of the Endangered Species Act showed “that Congress contemplated permitting the Secretary to withhold information in the critical habitat designation.” However, the court rejected this argument as well, on the basis that the statute did not exempt matters from disclosure “on its face,” and “legislative history will not avail if the language of the statute itself does not explicitly deal with public disclosure.”

Therefore, in challenging an agency’s claim that a statute permits withholding under Exemption 3, you should look to the plain language of the cited statute. If the statute does not provide specific criteria for withholding specific information, you should argue that it is not an Exemption 3 statute.

If an agency claims a statute meets the Exemption 3 criterion in that it “refers to particular types of matters to be withheld,” you should argue that the statute lacks specificity on this point. For example, as noted by one court, the legislative history of the exemption indicates that a section of the Social Security Act that “purports to forbid disclosure ‘of any (tax) return. . ., or of any file, record, report or other paper, or any information. . ., except as (the agency). . . may by regulations prescribe” would not meet this standard.

Likewise, a court held that section 7(c) of the Export Administration Act of 1969 did not “refer[] to particular types of matters to be withheld” as it applied to “any and all ‘information obtained’ under any portion of” the Act. The Act contained a number of provisions that authorized data collection — including one for records that were “necessary or appropriate to the enforcement of this Act. . . or to the imposition of any penalty, forfeiture, or liability” — and the court found that such “general applicability to anything that might happen to be encompassed within this array of information-gathering functions undermines any notion that Section 7(C) represents a congressional determination for any ‘particular type of matter.” That is, “the agency had the power radically to expand the quantity and diversity of information in its files to intercept matter of a sort that Congress well might not have contemplated when considering the need for confidentiality.”

Where possible, you should argue that the statute gives the agency too much discretion in the types of materials it may withhold, and/or the circumstances in which it may withhold, and so the statute does not qualify as an Exemption 3 statute.

If the agency claims that the legislative history of the statute shows that Congress intended to exempt the records from the disclosure — even where the text of the statute does not explicitly do so — you should note that courts have generally rejected this view. As the U.S. Court of Appeals for the District of Columbia Circuit has explained, there must be “a congressional purpose to exempt matters from disclosure in the actual words of the statute (or at least in the legislative history of FOIA ) — not in the legislative history of the claimed withholding statute, nor in an agency's interpretation of the statute.” For example, the legislative history of Exemption 3 expressly states that Section 1106 of the Social Security Act is not an Exemption 3 statute.

Materials Do Not Fall Within Scope of Statute
In addition to arguing, where possible, that a statute is not a valid Exemption 3 statute, you may challenge whether the material you requested falls within the scope of records that may be withheld under the statute.

At times, courts can interpret the scope of an Exemption 3 statute in a rather broad manner. For example, a court held that the CIA could withhold information about the legal fees it paid to private attorneys it had hired under two statutory provisions that it had previously held were Exemption 3 statutes. A provision in the CIA Act addresses nondisclosure of the “organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency.” The court ruled that this provision covered information about the agency’s legal fees, as it related to the “salaries. . . of personnel employed by the agency.”

The court ruled that a provision in the National Security Act covered the information at issue as well, as the statute provides that “the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure.” The court held that the agency met its burden to show that “the amount of a legal fee could well prove useful for identifying a covert transaction.” For example, the court noted, if the agency incurred “a large legal bill” in a covert operation, an intelligence analyst might be able to deduce the “size and nature of the operation.”

In contrast, a court held that IRS “letter rulings” — documents that provided written advice to taxpayers interpreting tax laws and their application to specific fact scenarios — did not fall within the scope of an Exemption 3 statute that protects against disclosure of certain tax return information. This statute bars the disclosure of “any income return, or any part thereof or source of income, profits, losses, or expenditures appearing in any income return.” As the court noted, this statute protects “the privacy of taxpayers filing tax returns” and is “designed to prevent disclosure information contained either in the returns or in documents filed in conjunction therewith which enable the Secretary or his delegate to determine tax due the United States.”

However, the letter rulings did not fall within this statute, the court ruled, as they were issued to provide guidance to taxpayers “in planning and conducting their business affairs and, if the transaction is consummated, aids in preparation of their tax returns.” While the taxpayers could choose to attach such letter rulings to their tax returns, the court found these letter rulings were not “part of a return,” but were instead interpretations of the law.

Therefore, where a statute may arguably constitute an Exemption 3 statute, you should argue that the information at issue is not covered by the relevant nondisclosure provision.