I. Appealing an Exemption 3 Denial

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.⁷

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.

⁷ 5 U.S.C. § 552(b)(3)(B).