3. Statutory exemption

The “statutory exemption” is designed to exempt from disclosure information that is required or permitted to be kept secret by other federal laws, when the law in question:

(A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or, (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.

Subsection (A) incorporates statutes such as the Census Act, which prohibits use of information furnished under that Act “for any purpose other than the statistical purpose for which it was supplied.” Subsection (B) incorporates statutes such as the Consumer Product Safety Act, which requires the Consumer Product Safety Commission to withhold documents submitted by private companies if information contained in them is not “accurate,” and the National Security Act, which exempts from disclosure “the names, titles, salaries or number of persons employed by” the National Security Agency.³²

The CIA Information Act, passed in 1984, removed the CIA’s “operational files” from public accessibility, exempting them from search under FOIA.³³ These files contain information dealing with foreign intelligence or counterintelligence operations, background investigations of informants, liaison arrangements with foreign governments or the scientific or technical means of gathering foreign intelligence. However, under the statute, a requester who is a U.S. citizen or permanent resident alien can still receive information on themselves. This is true even if the information is maintained in the CIA’s operational files. The CIA also has to search its operational files for information that was used in investigations by certain Congressional committees, the CIA Inspector General or by other executive agencies investigating the CIA for possible wrongdoing. This information must be released if it does not fall under one of the FOIA exemptions.

Traditionally, much of the information in the CIA’s operational files was not released under FOIA because the information was properly classified under the national security exemption (Exemption 1). Before this amendment, however, the CIA was required to search and review each document in order to justify the withholding. The agency claimed this was a very time-consuming process and that by excluding these files from FOIA altogether, the agency could process other information requests more promptly. The CIA is still behind in processing FOIA requests, but it no longer considers requests for “intelligence sources and methods.”³⁴

In addition, several other intelligence agencies now have similar exemptions. These include the National Reconnaissance Office, the National Geospatial Agency (formerly known as the National Imagery and Mapping Agency), the Defense Intelligence Agency and the National Security Agency.³⁵

Federal agencies have cited more than 250 statutes to justify withholding documents. The most frequently invoked laws have been tested in courts to determine if they meet the Exemption 3 criteria. Courts require that the statute authorize or require withholding, that Congress intend the specified statute to grant the agency the power to withhold information, and that the specified statute set the criteria for when information can be withheld, leaving no discretion to agency officials.

For example, courts have ruled that the exemption cannot be invoked under a provision of the Export Administration Act that permits the government to withhold foreign trade information about private corporations unless it determines that doing so would be “contrary to the national interest.”³⁶ The Trade Secrets Act, which establishes penalties for the disclosure of trade secrets, is also not covered by Exemption 3, according to the case law.³⁷

Similarly, the exemption does not incorporate a provision of the Federal Aviation Administration Act of 1958, which authorized the Administrator of the FAA to withhold agency reports on airline operations when, in his or her opinion, disclosure would “adversely affect” the company that submitted the data and “is not required in the interest of the public.”³⁸

An appropriations statute that prohibits expenditure of funds for releasing certain agricultural information does not qualify as an Exemption 3 law because Congress only barred the “expenditure” and not routine disclosure under FOIA.³⁹

An amendment to the Privacy Act makes clear that Congress did not intend that statute to be subject to Exemption 3.⁴⁰

On the other hand, there are several statutes that do qualify under Exemption 3: It is perhaps most frequently cited as grounds for denying the release of personal income tax returns under a statute designed to protect the privacy of individuals submitting them to the Internal Revenue Service.⁴¹ The qualifying statute makes it a crime for any “officer or employee” of the United States to disclose any “return or return information” obtained by the employee in connection with his or her government work, unless otherwise authorized to do so by federal law.

The exemption also applies to the rule of federal criminal procedure regarding grand jury information.⁴² The rule has the status of law because Congress amended it in 1977.⁴³ The rule protects from public disclosure the transcripts of federal grand juries and information about witnesses and jurors. It does not protect records not created by the grand jury, except when disclosure of those outside records might reveal the “focus” of the grand jury.

Another oft-cited and court-approved⁴⁴ Exemption 3 statute is a provision of the National Defense Authorization Act for Fiscal Year 1997.⁴⁵ The statute protects unsuccessful bids submitted in response to a government solicitation. If a proposal is not set forth or incorporated into a final agency contract, then it cannot be disclosed.

In 2002, Congress included in the Homeland Security Act an Exemption 3 provision that protects information about “critical infrastructure” voluntarily given to the Department of Homeland Security by members of the private sector.⁴⁶ Such information can include details on power plants, bridges, ports, or chemical plants that have been submitted to Homeland Security as critical infrastructure information.

New exemption three statutes have become a popular way to ensure blocking the release of information. For example Section 1619 of the 2007 Farm Bill blocks the release of geospatial data by the Farm Service Agency. The provision was inserted into the conference report on the bill and became law, undoing a previous court decision that required the release of the data.

These statutes can also be redundant in barring release of information that would otherwise be clearly covered under another FOIA exemption. This is particularly true for privacy. Medical records in the Defense Department are protected under 10 U.S.C. § 1102 but are also likely to be covered by Exemption 6. The Reporters Committee is working to stop the further passage of Exemption 3 statutes in cases such as this.

³² 50 U.S.C. § 402.

³³ CIA Information Act of 1984, Pub. L. No. 98-477, 98 Stat. 2009 (1984).

³⁴ 50 U.S.C. § 403(g).

³⁵ 50 U.S.C. § 40c-53 (2007) (exempting the National Reconnaissance Office), 50 U.S.C. § 403-5c (exempting the National Geospatial Agency, formerly the National Imagery and Mapping Agency); 50 U.S.C.S. § 432c (exempting the Defense Intelligence Agency); 50 U.S.C.S. § 432b (exempting the National Security Agency).

³⁶ American Jewish Congress v. Kreps, 574 F.2d 624 (D.C. Cir. 1978).

³⁷ CNA Fin. Corp. v. Donovan, 830 F.2d 1132 (D.C. Cir 1987), cert. denied, 485 U.S. 977 (1988).

³⁸ 49 U.S.C. § 1504; see S. Rep. No. 1178, 94th Cong., 2d Sess. 25 (1976).

³⁹ Cal-Almond, Inc. v. U.S. Dep’t of Agric., 960 F.2d 105 (9th Cir. 1992).

⁴⁰ Pub. L. No. 98-477, 98 Stat. 2209, § 2(c) (amending subsection (t) of the Privacy Act, 5 U.S.C. § 552a(t)).

⁴¹ 26 U.S.C. § 6103; Zale v. Internal Revenue Serv., 481 F. Supp. 486 (D.D.C. 1979).

⁴² Fed. R. Crim. P. 6(e).

⁴³ Fund for Constitutional Gov’t v. Nat’l Archives & Records Service, 485 F.Supp 1 (D.D.C. 1978), aff’d in part, rev’d in part, 656 F.2d 856 (D.C. Cir. 1981).

⁴⁴ Hornbostel v. Department of the Interior, 305 F. Supp. 2d 21 (D.D.C. 2003).

⁴⁵ 41 USC § 253(b)(m).

⁴⁶ 6 USC § 133.