A. Statute Does Not Qualify as Exemption 3 Statute

In its denial letter, the government should cite the specific statute it used to justify rejecting a FOIA request pursuant to Exemption 3. In arguing that the statute does not qualify as an Exemption 3 statute, you should first attempt to look for instances in which a court has already held that the specific statute does not qualify, and cite any such cases in your appeal. Another resource you may want to consult is the United States Department of Justice’s listing of all statutes that courts have found to qualify under Exemption 3.⁸ However, you should note some limitations of the list. It does not include statutes that courts have ruled do not qualify as Exemption 3 statutes nor does it address statutes which have not yet been considered by a court for Exemption 3 status. Additionally, the list was last updated in August 2011, so you may still need to research case law in case a court has issued a ruling related to the purported Exemption 3 statute since that time.

Also note that absent a ruling from the United States Supreme Court, there is always the possibility that a court not bound by a particular ruling of another court may not agree that a statute qualifies as an Exemption 3 statute. However, this is likely more important in the litigation stage rather than in the administrative appeals process, as the agency will likely continue to rely on the established, favorable ruling at the administrative stage.

⁸ U.S. Dep’t of Justice, Statutes Found to Qualify under Exemption 3 of the FOIA (Aug. 2011).