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.

Intelligence Agency Operational Files
Federal laws provide that many intelligence record files lie outside the FOIA’s search and review requirements. As a result, the files are not even required to be searched in response to a FOIA request. As explained in the legislative history of the CIA Information Act of 1984, the first law to grant such an exemption was designed to relieve what the CIA argued was the “unproductive process of searching and reviewing CIA operational records systems which contain little, if any, information releasable under FOIA [and] absorbs a substantial amount of the time of experienced CIA operational personnel and scarce tax dollars.”

An agency citing an operational file exemption to the FOIA will simply respond with a statement that such records would be contained in operational files for which it has no obligation to search.

Among the agencies that have been granted such exemptions include the CIA, the National Security Agency, the National Geospatial-Intelligence Agency (along with its predecessor agency, the National Photographic Interpretation Center), the National Reconnaissance Office, the Office of the Director of National Intelligence, and the Office of the National Counterintelligence Executive.

The CIA Information Act of 1984 authorizes the Director of the CIA to exempt most agency operational files from the search and review requirements of the FOIA.

The Act defines operational files to mean the following:


 * National Clandestine Service files that “document the conduct of foreign intelligence or counterintelligence operations or intelligence or security liaison arrangements or information exchanges with foreign governments or their intelligence or security services”;


 * Directorate for Science and Technology files that “document the means by which foreign intelligence or counterintelligence is collected through scientific and technical systems”; and


 * Office of Personnel Security files that “document investigations conducted to determine the suitability of potential foreign intelligence or counterintelligence sources.”

However, “operational files” do not include those that “are the sole repository of disseminated intelligence.” The legislative history of the Act explains that this exception was designed to address those “very rare cases” in which the CIA Directorate of Operations disseminates “intelligence product of extremely sensitive sources” to “selected senior officials” — “in a manner which does not allow storage of the product outside the Directorate of Operations” — and the product is then “returned to the Directorate of Operations for safekeeping.”

Since this dissemination differs from “the normal CIA practice in which intelligence is disseminated to, and maintained in the files of, the analytical components of the CIA, all of the files of which remain subject to search and review,” the exception is designed to ensure “that files which are the [sole] repository of these extremely sensitive intelligence disseminations are not operational files and, therefore, remain subject to FOIA search and review requirements.”

Relying on this legislative history, a U.S. District Court for the District of Columbia has interpreted the exception to mean that operational files fall within it where “they contain disseminated intelligence not found anywhere other than within one or more operational files of the relevant agency.”

Further, under three exceptions in the Act, an agency must follow the FOIA’s search and review requirements for information concerning:


 * requests by citizens or permanent residents for information on themselves;


 * “any special activity the existence of which is not exempt under the [FOIA]”; or


 * “the specific subject matter of an investigation” by certain federal committees or officials for impropriety or violations of law, Executive orders, or Presidential directives in conducting intelligence activities. You should note that to successfully invoke this exception, “the information requested must concern the specific subject matter of the official investigation.”

Where possible, you should argue that one or more of these exceptions apply and, consequently, the files must be searched and reviewed under the FOIA. For example, a court held that the CIA’s operational files would still be subject to the FOIA where they were related to the Office of Inspector General’s investigation of alleged CIA improprieties in Iraq, and there was sufficient “overlap between the specific subject matter of the. . . investigation and plaintiffs’ FOIA requests.”

Additionally, agencies must search and review non-exempt operational files that “contain information derived or disseminated from exempted operational files,” as well as “[r]ecords from exempted operational files which have been disseminated to and referenced in files that that are not exempted. . . and which have been returned to the exempted operational files for sole retention.”

However, you should keep in mind that even a successful operational files exemption appeal does not mean that you will receive the records; it only means that the agency will search for and review the records to determine if disclosure is required. You will then likely have to contest FOIA exemptions raised by the agency to withhold some or all of the records.