III. Exemptions with No Discretionary Release Prospects

For other exemptions, a discretionary release may not be possible because the law specifically forbids an agency from making any kind of disclosure in all situations. Guidance issued by the U.S. Department of Justice’s Office of Information Policy states that national security material (Exemption 1), trade secrets and confidential business information (Exemption 4), records implicating personal privacy concerns (Exemptions 6 and 7(C)) and materials specifically required to be withheld under an Exemption 3 statute are generally not good candidates for discretionary disclosure.²¹   

Agencies generally have no discretion to make a discretionary disclosure for materials properly classified and withheld under Exemption 1. See the chapter on appealing Exemption 1 denials for arguments related to requests for declassification and whether information is properly classified in the first instance, thereby possibly precluding application of Exemption 1.

The Privacy Act of 1974²² prevents the government from making any discretionary disclosure for records covered under the act thereby forbidding the disclosure of any records contained in a “system of records” that can be withheld under Exemptions 6 or 7(C). See the chapters on the Privacy Act and Exemption 6 and 7(C) for more information on how to approach personal privacy appeals.

Likewise, the Trade Secrets Act²³ prevents the disclosure of materials properly protected under Exemption 4, with courts finding that the act’s scope is “at least co-extensive with that of Exemption 4.”²⁴  

Finally, Exemption 3 statutes generally prohibit agencies from making discretionary disclosures as they often read that a particular record “shall not be disclosed,” leaving no room for release. In cases where it is clear that an agency has no discretion to make a release under the relevant statute, it is likely better to focus on why a particular record cannot be properly withheld under Exemption 3.