Freedom of Information

Under Exemption 7, an agency may withhold “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information” could result in one or more of six specific kinds of harm detailed in the exemption.¹ In challenging an Exemption 7 withholding, you should argue that 1) the records were not “compiled for law enforcement purposes” and/or 2) the potential harm asserted does not apply to the records at issue or is unlikely to occur

 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.

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.³⁹

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.”²² 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.

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.”¹⁷ 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 . . .

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 i

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.

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.

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.¹