a. Requires Withholding With No Discretion

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 . . . use the information furnished under the provisions of this Title for any purpose other than the statistical purposes for which it is supplied.”¹⁸ The court ruled that this was “a clearly and strongly worded prohibition against disclosure which would qualify under Exemption 3,” as “it was “a flat barrier to disclosure with no exercise of discretion permitted.”¹⁹ Further, the statute “refer[red] to the particular type of matter to be withheld, . . . emphatically including ‘the information furnished under the provisions of this Title’ and forbidding its use ‘for any purpose other than the statistical purposes for which it is supplied.’”²⁰

In contrast, a court held that a statute did not meet this standard where it provided that certain information was to be held confidential “unless the head of such department or agency determines that the withholding thereof is contrary to the national interest.”²¹ Therefore, if an agency claims that a statute meets this criterion of an Exemption 3 statute, you should challenge that assertion by demonstrating, if possible, that the statute gives the agency discretion with respect to the decision to withhold. This will likely require you to review the entire text of the cited statute. Any language that suggests an agency may choose to release information under certain conditions may open the door to challenge the statute’s “Exemption 3” status.