The “Statutory” exemption is designed to exempt from disclosure information required or permitted to be kept secret by dozens of other federal laws. It covers records that are:

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.³⁰

A 1984 amendment to the National Security Act removed from the ordinary search and review requirements of the FOI Act sensitive CIA “operational files.”³¹ These files contain information dealing with the conduct of foreign intelligence or counterintelligence operations, background investigations of informants, liaison arrangements with foreign governments or the scientific or technical means of gathering foreign intelligence. The amendment does not permit the CIA to withhold documents about iself from U.S. citizens or permanent resident aliens, even if the data are in operational files. The agency also would not be allowed to keep secret files related to operations Congress, the Inspector General or other executive agencies investigated for possible CIA wrongdoing.

Much of the information in these files was not released under the FOI Act in the past because the information was properly classified under the national security exemption (Exemption 1). Prior to the enactment of 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 the FOI Act altogether, the agency could process other information requests more promptly. Many years later the CIA is still behind in processing FOI requests, but it no longer even considers a request for “intelligence sources and methods.”³²

Federal agencies have cited more than 125 statutes to justify withholding documents. Most of these laws have not been tested in court to determine whether they do, in fact, qualify as Exemption 3 statutes. For example, courts have ruled that the exemption could not be invoked under a provision of the Export Administration Act that permitted the government to withhold foreign trade information about private corporations unless it determined that doing so would be “contrary to the national interest.”³³ 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.³⁴

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.”³⁵

An appropriations statute that prohibits expenditure of funds for releasing certain agricultural information did not qualify as an Exemption 3 law because Congress only barred the “expenditure” and not routine disclosure under the FOI Act.³⁶

An amendment to the Privacy Act makes clear that Congress did not intend that statute to be subject to Exemption 3.³⁷

This exemption is perhaps most frequently cited as grounds for the denial of personal income tax returns under a statute designed to protect the privacy of individuals submitting them to the Internal Revenue Service.³⁸ It 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 employment, unless otherwise authorized to do so by federal law.

The exemption applies to the rule of federal criminal procedure regarding grand jury information.³⁹ The rule has the status of law because Congress amended it in 1977.⁴⁰ The rule protects from public disclosure the transcripts of federal grand juries and information about witnesses and jurors. It does not protect “extrinsic” records, not created by the grand jury, except when disclosure might reveal the “focus” of the grand jury.

In 2002, Congress included in the Homeland Security Act, a highly controversial Exemption 3 provision that protects information about the “critical infrastructure” voluntarily given to the Department of Homeland Security by members of the private sector.⁴¹

Next section: Trade Secrets