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II. Examples of Statutes that Do/Do Not Qualify as Exemption 3 Statutes

 A representative sampling of the hundreds of statutes the government has used to withhold information under Exemption 3 is below. These examples are meant to provide guidance on the types of materials that the government protects under this exemption, but is certainly not an exhaustive list.

  • CIA Intelligence/Organization: A provision in the National Security Act provides that the CIA must withhold “intelligence sources and methods,”51 and a provision in the CIA Act instructs the agency to withhold information about “the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency.”52 Courts have held that the plain meaning and legislative history of the phrase “intelligence sources and methods” as “giv[ing] the Director of Central Intelligence broad power to protect the secrecy and integrity of the intelligence process.”53 For example, the U.S. Supreme Court held that the names of scientific researchers who provided intelligence information to CIA were protected “intelligence sources.”54 The court reasoned that the relevant research “was related to the Agency's intelligence-gathering function in part because it revealed information about the ability of foreign governments to use drugs and other biological, chemical, or physical agents in warfare or intelligence operations against adversaries.”55
  • Critical Infrastructure Information: Under the Homeland Security Act, “critical infrastructure information (including the identity of the submitting person or entity) that is voluntarily submitted to a covered Federal agency for use by that agency regarding the security of critical infrastructure and protected systems, analysis, warning, interdependency study, recovery, reconstitution, or other informational purpose” is exempt from disclosure under Exemption 3.56
  • Grand Jury Information: Federal Rule of Criminal Procedure 6(e) disallows disclosure of a “matter occurring before the grand jury.”57 Courts have held this rule protects grand jury transcripts and “documents subpoenaed as exhibits,”58 as well as “the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of the jurors, and the like.”59
  • Tax Return Information: Under the Internal Revenue Code, the IRS can withhold tax “[r]eturns” and “return information.”60 Protected information includes taxpayers’ names and financial data, including information such as their “assets” and “net worth.”61 The code provides that the nondisclosure provisions do not apply to “data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer.”62 However, the U.S. Supreme Court has held that “as with a return itself, removal of identification from return information would not deprive it of protection under” this nondisclosure provision, and agencies are not required to make such redactions.63 The U.S. Court of Appeals for the District of Columbia has held, however, that “reformulation of the return information into a statistical study or some other composite” in a way that assures “that a taxpayer’s identity will in fact not be disclosed” does not fall under this statute.64 For example, a court held that “compilations of data, compiled by the IRS from individual taxpayer returns” was not protected under this statute where the data was merely a list of information about timber tracts and amount of timber and did not include return information.65
  • Veteran’s Information: A provision in the Veterans’ Benefits law prohibits the disclosure of names and addresses of present or former members of the Armed Forces.66 Another provision bars the release of medical records for Veterans Health Administration patients diagnosed with or treated for drug or alcohol abuse, HIV infection, or sickle cell anemia.67
  •  Visa and Immigration Information: The Immigration and Nationality Act deems confidential “records of the Department of State and of diplomatic and consular offices of the United States pertaining to the issuance or refusal of visa or permits to enter the United States.”68 The justification for this nondisclosure provision is to protect the privacy of visa applicants and “maintain the confidentiality of the decision-making process.”69 For that reason, the exempt information includes “not only . . . the information supplied by the visa applicant, but also any information revealing the thought processes of those who rule on the application.”70 For example, a court upheld an agency’s withholding of documents related to certain individuals’ entry into the country where they were retrieved from a database used by agency officials in determining individuals’ eligibility for visas.71

Some examples of statutes that courts have held do not qualify for Exemption 3 are below.

  • Privacy Act: The Privacy Act of 1974 provides that with some exceptions, “No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains.”72 The U.S. Supreme Court has affirmed that the Privacy Act is not an Exemption 3 withholding statute.73 That is because the Central Intelligence Information Act amended the Privacy Act by adding a provision that “[n]o agency shall rely on any exemption in [the Privacy Act] to withhold from an individual any record which is otherwise accessible to such individual under the provisions” of FOIA.74 (For more information on the Privacy Act, see the chapter, The Privacy Act and FOIA).
  •  Medical Device Safety and Effectiveness: A court has held that a section of the Federal Food, Drug, and Cosmetic Act that provides that — in some circumstances — public availability of summaries of information about “the safety and effectiveness of a device” is not an Exemption 3 statute.75 The court explained that this was “primarily, if not exclusively, a disclosure statute,” and did not prohibit the disclosure of records.76
  •  Postal Reorganization Act: A court has held that the provision of this Act that states that the law “shall not require the disclosure of . . . investigatory files, whether or not considered closed, compiled for law enforcement purposes except to the extent available by law to a party other than the Postal Service” is not an Exemption 3 statute.77 The court reasoned that the law “gives the agency complete discretion to grant or withhold” such files.78
  •  Trade Secrets Act: The Trade Secrets Act provides for penalties for agency employees who wrongfully release information relating to “trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association,” or income returns.79 A court held that it does not qualify as an Exemption 3 statute because an agency makes the decision — in adopting regulations — of determining what types of materials would constitute an “unauthorized” release under the law, and the law does not “direct[] or guide[] an agency in deciding whether it ought to exercise its power to authorize revelation of officially collected commercial and financial data.”80 Further, the court found the list of materials listed in the statute to be an “oceanic,” “encyclopedic” “laundry list” that does not have the specificity needed to qualify as a statute that bars the release of “particular types of matters.”81

51 50 U.S.C. § 403-1(i)(1).

52 50 U.S.C. § 403g.

53 Sims, 471 U.S. at 170.

54 Id. at 173.

55 Id.

56 6 U.S.C. § 133(a)(1).

57 FED. R. CRIM. P. 6(e).

58 Fund for Constitutional Gov’t, 656 F.2d at 869.

59 Id. (quoting S.E.C. v. Dresser Indust., Inc., 628 F.2d 1368, 1382 (D.C. Cir. 1980)).          

60 26 U.S.C. § 6103(a).

61 Id. at § 6103(b)(2)(A).

62 Id. at § 6103(b)(2)(D).

63 Church of Scientology of Cal. v. IRS, 484 U.S. 9, 18 (1987).

64 Church of Scientology of Cal. v. IRS, 792 F.2d 153, 160 (D.C. Cir. 1986), aff’d, 484 U.S. 9 (1987).

65 Willamette Indus., Inc. v. United States, 689 F.2d 865, 869 (9th Cir. 1982).

66 38 U.S.C. § 5701(a).

67 Id. at § 7332(a)(1).

68 8 U.S.C. § 1202(f).

69 Medina-Hincapie v. Dep’t of State, 700 F.2d 737, 744 (D.C. Cir. 1983).

70Judicial Watch, Inc. v. U.S. Dep’t of State, 650 F.Supp.2d 28, 33 (D.C. Cir. 2009) (quoting Perry-Torres v. U.S. Dep’t of State, 404 F.Supp. 2d 140, 143 (D.D.C. 2005) (internal quotation marks omitted)).

71 Judicial Watch, Inc., 650 F.Supp.2d at 33.

72 5 U.S.C. § 552a.

73 U.S. Dep’t of Justice v. Provenzano, 469 U.S. 14, 15-16 (1984).

74 Id. (citing Central Intelligence Information Act, Pub. L. 98-477, 98 Stat. 2209, § 2(c)). See also 5 U.S.C. § 552(t)(2).

75 21 U.S.C. § 360j(h).

76 Pub. Citizen Health Research Grp. v. FDA, 704 F.2d 1280, 1285-86 (D.C. Cir. 1983).

77 Church of Scientology of Cal. v. U.S. Postal Serv., 633 F.2d 1327, 1330 (9th Cir. 1980) (citing 39 U.S.C. § 401(c)(6)).

78 Church of Scientology of Cal., 633 F.2d at 1333.

79 18 U.S.C. § 1905.

80 CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1138-40 (D.C. Cir. 1987).

81 Id. at 1140-41.