b. "Establishes Particular Criteria for Withholding or Refers to Particular Types of Matters to Be Withheld"

The second basis on which a statute can qualify as an Exemption 3 statute is where it “establishes particular criteria for withholding or refers to particular types of matters to be withheld.”²² Where the language of the statute does not provide such criteria or identify specific matters, you should argue that it does not qualify under Exemption 3.

The U.S. Court of Appeals for the District of Columbia has clarified that a statute meets this criterion “only if” the statute “is the product of congressional appreciation of the dangers inherent in airing particular data and incorporates a formula whereby the administrator may determine precisely whether disclosure in any instance would pose the hazard that Congress foresaw.”²³ Therefore, where an agency claims the statute meets this criterion for an Exemption 3 statute, you should challenge whether it establishes a “formula” for withholding information in order to prevent a specific harm.

As provided in the legislative history of Exemption 3, the Atomic Energy Act of 1954 is an example of a statute that “establishes particular criteria for withholding,” as it “provides explicitly for the protection of certain nuclear data.”²⁴ As one court explained, that statute “direct[s] that information be released only if it ‘can be published without undue risk to the common defense and security.’”²⁵

In contrast, a court rejected an agency’s assertion that the Endangered Species Act was “a statute that establishes particular criteria for withholding particular matters.”²⁶ The law gave the Secretary of the Interior the authority to designate a habitat of a species as a “critical habitat” to “the maximum extent prudent and determinable,” as well as the discretion to “exclude any area” from such designation where it would be more beneficial to do so.²⁷

The Department of the Interior argued that since the statute provided “criteria for determining whether it would be ‘prudent,’ to include or withhold particular location information in the critical habitat designation,” it could be used as an Exemption 3 statute to withhold the locations of pygmy owls and their nests.²⁸ However, looking to “the plain language of the statute,” the court found that there was nothing in its text “that refers to withholding information.”²⁹ That is, to qualify as an Exemption 3 statute, it “must on its face exempt matters from disclosure.”³⁰

The agency in that case also argued that the legislative history of the Endangered Species Act showed “that Congress contemplated permitting the Secretary to withhold information in the critical habitat designation.”³¹ However, the court rejected this argument as well, on the basis that the statute did not exempt matters from disclosure “on its face,” and “legislative history will not avail if the language of the statute itself does not explicitly deal with public disclosure.”³²

Therefore, in challenging an agency’s claim that a statute permits withholding under Exemption 3, you should look to the plain language of the cited statute. If the statute does not provide specific criteria for withholding specific information, you should argue that it is not an Exemption 3 statute.

If an agency claims a statute meets the Exemption 3 criterion in that it “refers to particular types of matters to be withheld,” you should argue that the statute lacks specificity on this point. For example, as noted by one court, the legislative history of the exemption indicates that a section of the Social Security Act that “purports to forbid disclosure ‘of any (tax) return . . . , or of any file, record, report or other paper, or any information . . ., except as (the agency) . . . may by regulations prescribe” would not meet this standard.³³

Likewise, a court held that section 7(c) of the Export Administration Act of 1969 did not “refer[] to particular types of matters to be withheld” as it applied to “any and all ‘information obtained’ under any portion of” the Act.³⁴ The Act contained a number of provisions that authorized data collection — including one for records that were “necessary or appropriate to the enforcement of this Act . . . or to the imposition of any penalty, forfeiture, or liability” — and the court found that such “general applicability to anything that might happen to be encompassed within this array of information-gathering functions undermines any notion that Section 7(C) represents a congressional determination for any ‘particular type() of matter().”³⁵ That is, “the agency had the power radically to expand the quantity and diversity of information in its files to intercept matter of a sort that Congress well might not have contemplated when considering the need for confidentiality.”³⁶

Where possible, you should argue that the statute gives the agency too much discretion in the types of materials it may withhold, and/or the circumstances in which it may withhold, and so the statute does not qualify as an Exemption 3 statute.

If the agency claims that the legislative history of the statute shows that Congress intended to exempt the records from the disclosure — even where the text of the statute does not explicitly do so — you should note that courts have generally rejected this view. As the U.S. Court of Appeals for the District of Columbia Circuit has explained, there must be “a congressional purpose to exempt matters from disclosure in the actual words of the statute (or at least in the legislative history of FOIA ) — not in the legislative history of the claimed withholding statute, nor in an agency's interpretation of the statute.”³⁷For example, the legislative history of Exemption 3 expressly states that Section 1106 of the Social Security Act is not an Exemption 3 statute.³⁸