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
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.”2 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.3
There are literally hundreds of “Exemption 3” statutes found in federal law.4 While these statutes typically protect personal, defense, or contract information, they can also at times protect narrow, special interests.5 For instance, the Department of Agriculture has relied on Exemption 3 to deny access to information about watermelon handlers, citing a statute in the U.S. Code that governs “Watermelon Research and Promotion.”6
1 5 U.S.C. § 552(b)(3).
2 Id. at § 552(b)(3)(A).
3 Id. at § 552(b)(3)(B). See OPEN FOIA Act of 2009, Pub. L. No.111-83, 123 Stat. 2142.
4 See, e.g., ProPublica, FOIA b(3) Exemptions, Mar. 10, 2010; Dep’t of Justice, Statutes Used by Federal Departments and Agencies in Conjunction with Exemption 3 of the FOIA As Reported in Fiscal Year 2010 Annual FOIA Reports (2011).
5 See id.
6 7 U.S.C. § 4908(c); ProPublica, FOIA b(3) Exemptions – 7 USC 4908(c): List of watermelon growers and handlers.