i. Is the Authority Cited a "Statute"?

As the U.S. Court of Appeals for the District of Columbia Circuit has stated, “Exemption 3 is explicitly confined to materials exempted from disclosure ‘by statute.’”⁹ A “statute” for Exemption 3 purposes is a rule “affirmatively adopted by the legislature.”¹⁰ For example, that court held that the Federal Rule of Civil Procedure 26(c) was not a “statute” under this definition because it was a rule issued by the U.S. Supreme Court.¹¹ While Congress had delegated the power to make such rules to the Supreme Court, and Congress could reject proposed rules, they had not been “affirmatively adopted by” Congress.¹²

In contrast, a court held that Federal Rule of Criminal Procedure 6(e), which prohibits the disclosure of a “matter occurring before the grand jury,” did meet the definition of “statute” for Exemption 3 purposes.¹³ The U.S. Supreme Court had adopted certain amendments to the rules, and Congress then “voted to delay the effective date of several of the proposed rules, among them Rule 6(e), ‘until August 1, 1977, or until and to the extent approved by Act of Congress, whichever is earlier.’”¹⁴Then, by passing a statute, Congress “enacted a modified version of Rule 6(e) in substantially its present form.”¹⁵ The Court held that Rule (6)(e) was therefore a statute, as it “was positively enacted by Congress.”¹⁶

Therefore, if the agency cites a regulation or other legal authority that has not been “affirmatively adopted by” Congress, you should argue that it is not an Exemption 3 “statute.”

⁹ Founding Church of Scientology of Wash., D.C., Inc. v. Bell, 603 F.2d 945, 952 (D.C. Cir. 1979).

¹⁰ Id.

¹¹ Id.

¹² Id.

¹³ Fund for Constitutional Gov’t v. Nat’l Archives & Records Serv., 656 F.2d 856, 867 (D.C. Cir. 1981); FED. R. CRIM. P. 6(e).

¹⁴ Fund for Constitutional Gov’t, 656 F.2d at 867.

¹⁵ Id. (citing Pub. L. No. 95-78, § 2(a), 91 Stat. 319 (1977)).

¹⁶ Id.