Agencies
Rely on Wide Range of Exemption 3 Statutes
One of
the many amendments made to the Freedom of Information Act by the Electronic
Freedom of Information Act Amendments of 1996 was the addition of a requirement
that each federal agency list, in its annual FOIA report, all of the statutes
on which it relied to withhold information under Exemption 3 of the FOIA. See
5 U.S.C. § 552(e)(1)(B)(ii) (2000) (also requiring citation of
applicable case precedents upholding such statutes as Exemption 3 statutes);
seealsoFOIA
Update, Vol. XVIII, No. 3, at 5 ("OIP Guidance: Guidelines for Agency
Preparation and Submission of Annual FOIA Reports"). A review of the annual
lists that are prepared in implementation of this requirement shows that agencies
across the executive branch rely on a wide range of Exemption 3 statutes. Some
such statutes apply to commonly held types of information and are relied on
by many agencies, while others are designed more specifically for use by a few
agencies or by one agency alone.
Exemption
3 of the FOIA incorporates nondisclosure provisions that are found in other
federal statutes; it allows agencies to withhold information under the FOIA
that is specifically prohibited from disclosure by those statutes. Seegenerally"Exemption 3" Section of
the "Justice Department Guide to the Freedom of Information Act." Information
may be withheld pursuant to an Exemption 3 statute when that statute either
"(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." 5
U.S.C. § 552(b)(3).
Based
on the information now provided by all federal agencies in their annual FOIA
reports -- most recently, their reports for the 2002 fiscal year, seeFOIA Post, "Summary of Annual
FOIA Reports for Fiscal Year 2002" (posted 9/3/03) -- the most commonly
relied-on Exemption 3 statute is a seven-year-old government contract-related
statute that is codified at 41 U.S.C. § 253b(m) (2000). This statute
prohibits the release of contractor proposals submitted to an agency during
the course of federal procurements of property or services, insofar as it applies
to any proposal "submitted by a contractor in response to the requirements of
a solicitation for a competitive proposal" except when the proposal "is set
forth or incorporated by reference in a contract entered into between the agency
and the contractor that submitted the proposal." Id.
The protections
of this statute are two-fold. First, "it provides blanket protection for the
proposals submitted by unsuccessful offerors in response to a solicitation"
because, by definition, such proposals would not be "incorporated by reference
in a contract" between the offeror and an agency. FOIA
Update, Vol. XVIII, No. 1, at 2. Second, the statute provides protection
to successful proposals to the extent that such a proposal is not "set forth
or incorporated by reference in" the actual contract. See id.
This statute
(together with a companion statute for armed services acquisitions that is found
at 10 U.S.C. § 2305(g)) greatly reduces the administrative burden
on federal agencies, which now rely on this statute and Exemption 3 to avoid
the complicated and time-consuming document analysis and submitter-notice process
that otherwise would be required for such records under Exemption 4. Twenty-one
different agencies -- including the Department of Agriculture, the Department
of Commerce, the Department of Energy, the Department of the Interior, and the
Department of Justice -- regularly withhold records in reliance on this statutory
provision.
Likewise,
many federal agencies rely on Federal Rule of Criminal Procedure 6(e) to protect
matters pertaining to federal grand jury activity. This provision of law might
seem to be unusual as an Exemption 3 "statute," because it first and foremost
is a federal litigation rule, but it was specially enacted also as a statute
in 1977, not long after the 1974 FOIA amendments required greater particularity
in the withholding of law enforcement records. SeeFund for Constitutional
Gov't v. Nat'l Archives & Records Serv., 656 F.2d 856, 867 (D.C. Cir.
1981). Law enforcement agencies such as the Department of Justice, the Department
of Agriculture, the Department of Labor, and the Department of the Treasury
(not to mention the newly created Department of Homeland Security) regularly
rely on this statute in their administration of the FOIA.
Many agencies
also commonly rely on the statute codified at 26 U.S.C. § 6103(a)
(2000), which provides protection for tax return information. This section of
the Internal Revenue Code, which was sharply strengthened by Congress in the
midst of "Watergate-era" privacy concerns, provides that no federal employee
or officer "shall disclose any return or return information obtained by [the
IRS] in any manner in connection with his service as such an officer or an employee."
Id. It has been relied on by such agencies as the Department of the
Treasury (which includes the Internal Revenue Service), the Department of Agriculture,
the Department of Energy, and the Department of Justice, and it is applied very
broadly in conjunction with Exemption 3. The Supreme Court, in a non-FOIA case
named Church of Scientology v. IRS, 484 U.S. 9, 11 (1987), upheld the
IRS's broad application of this law and further held that the "mere redaction"
of identifying data does not take tax documents out of the ambit of its confidentiality
requirements.
The
Department of the Treasury and the Department of Health and Human Services,
among other agencies, regularly employ the Ethics in Government Act, 5 U.S.C.
app. 4 § 107(a)(2) (2000), under Exemption 3. This statute provides
a measure of protection for the personal information that is submitted pursuant
to the financial disclosure requirements that are applicable to high-level federal
personnel. In Meyerhoff v. EPA, 958 F.2d 1498, 1500-02 (9th Cir. 1992),
the Ninth Circuit Court of Appeals held that the Ethics in Government Act qualifies
as a withholding statute under Exemption 3 because it leaves no discretion to
the agency to determine whether reports are to be disclosed pursuant to the
FOIA, as opposed to through an alternative disclosure mechanism.
In the
national security realm, the Department of Defense, the Department of Justice,
and the Central Intelligence Agency all routinely rely on the nondisclosure
provisions of the National Security Act of 1947 and the Central Intelligence
Agency Act of 1949. The National Security Act of 1947 protects from disclosure
all national security intelligence sources and methods. See 50 U.S.C.
§ 403-3(c)(7),as amended by Pub. L. No. 107-56, 115 Stat.
272, § 901 (2001). The Central Intelligence Agency Act of 1949
protects certain enumerated categories of CIA information such as its organization,
functions, names, official titles, salaries, and numbers of personnel employed
by it. See 50 U.S.C. § 403g (2000). Over the years, many
courts have upheld these two statutory provisions as Exemption 3 statutes. See,
e.g., CIA v. Sims, 471 U.S. 159, 167 (1985); Minier v. CIA,
88 F.3d 796, 801 (9th Cir. 1996).
The
Department of Veterans Affairs, by comparison, has its own Exemption 3 statutes
on which no other agency relies. It invokes Exemption 3 in conjunction with
several separate sections of title 38 of the United States Code. Section 5701
provides that the names and addresses of present or former members of the armed
forces and their dependents "shall be confidential and privileged, and no disclosure
thereof shall be made." 38 U.S.C. § 5701(a) (2000). Section 5705
of this same title protects from disclosure records and documents created by
the Department of Veterans Affairs as part of its confidential medical quality-assurance
program. See 38 U.S.C. § 5705(a) (2000). Section 7332
provides that records of the identity, diagnosis, or treatment of any patient
relating to drug abuse, alcoholism or alcohol abuse, infection with the HIV
virus, or sickle cell anemia shall be confidential. See 38 U.S.C. §
7332 (2000). Courts have upheld each of these as Exemption 3 statutes.
See, e.g., Ashton v. VA, No. 99-6018, 1999 WL 753331, at *1
(2d Cir. Sept. 3, 1999) (upholding 38 U.S.C. § 5701);Schulte
& Sun-Sentinel Co. v. VA, No. 86-6251, slip op. at 9-12 (S.D. Fla.
Feb. 2, 1996) (upholding 38 U.S.C. § 5705);Palmer v. Derwinski,
No. 91-197, slip op. at 3-4 (E.D. Ky. June 10, 1992) (upholding 38 U.S.C. §
7332).
Like
the Department of Veterans Affairs, the Department of Agriculture has Exemption
3 statutes on which no other agency relies. These various sections of title
7 protect store records regarding food-stamp applications; tobacco and peanut
production information; electronic benefit transactions; names, addresses, and
telephone numbers of food-stamp recipients; reports on certain administration
and enforcement activities; honey research, promotion, and related consumer
information; and watermelon research and promotion information. See 7
U.S.C. §§ 1373, 2016, 2018, 4601, 4901, et seq. (2000).
Also
relied on by only one agency is a section of the Federal Trade Commission Act,
codified at 15 U.S.C. § 46(f) (2000), which prohibits the FTC from
disclosing "any trade secrets or any commercial or financial information which
is obtained from any person and which is privileged or confidential." Its use
as an Exemption 3 statute was first upheld more than two decades ago, in Doherty
v. FTC, 2 Gov't Disclosure Serv. (P-H) ¶ 81,241, at 81,667
(D.D.C. 1981). Another section of this same statute, found at 15 U.S.C. §
57b-2(b) (2000), prohibits the disclosure of any materials received by
the FTC pursuant to compulsory process in a law enforcement investigation. Like
section 46(f), this provision has been relied on by only the FTC and long has
been upheld as an Exemption 3 statute in court. SeeDairymen, Inc.
v. FTC, 1 Gov't Disclosure Serv. (P-H) ¶ 80,159, at 80,378
(D.D.C. 1980).
Likewise,
the Department of the Interior now relies on a provision of the National Park
Omnibus Management Act of 1998, 16 U.S.C. § 5937 (2000), a relatively
new Exemption 3 statute. It very specifically provides that information regarding
endangered species located within the National Park System "may be withheld
from the public in response to a [FOIA] request." Its status as an Exemption
3 statute was upheld last year in Southwest Center for Biological Diversity
v. USDA, 314 F.3d 1060, 1060-62 (9th Cir. 2002), a case in which this statute
also was given retroactive effect so as to apply even to a FOIA request (for
records identifying nest sites of the northern goshawk) that was filed prior
to its enactment. See alsoFOIA
Update, Vol. XVIII, No. 1, at 5 (discussing the agency's inability
to protect endangered species nest locations under Exemption 2, the legislative
response to which was enactment of a remedial statute triggering Exemption 3).
This
latter statute illustrates that there is some variability in the language that
is chosen by Congress in enacting a statutory nondisclosure provision intended
to operate in conjunction with Exemption 3. In a growing trend, some such statutes
enacted in recent years contain disclosure prohibitions that are not general
in nature but rather are specifically directed toward disclosure under the FOIA
in particular. The most common form of such a law directs that certain particular
information, often information that is provided to or received by an agency
pursuant to that statute, "shall be exempt from disclosure" under 5 U.S.C. §
552. For instance, a provision of the Antitrust Civil Process Act states
that "[a]ny documentary material, answers to written interrogatories, or transcripts
of oral testimony provided pursuant to any demand issued under this Act shall
be exempt from disclosure under section 552 of title 5, United States Code."
15 U.S.C. § 1314(g) (2000) (emphasis added). In Fiscal Year 2002,
the Department of Justice relied on this statute, as well as on a similarly
worded Exemption 3 statute found at 31 U.S.C. § 3729(d) (2000),
in its administration of the FOIA. Such language also can be found in section
214 of the Homeland Security Act of 2002, Public Law 107-296, which protects
critical infrastructure information that is voluntarily submitted to the federal
government for homeland security purposes by providing that it "shall be exempt
from disclosure" under the FOIA. Pub. L. No. 107-296, 116 Stat. 2135, §
214(a)(1)(A) (to be codified at 6 U.S.C. § 133(a)(1)(A));see alsoFOIA Post, "Homeland
Security Law Contains New Exemption 3 Statute" (posted 1/27/03).
Other
examples of agency reliance on similarly worded such statutes include the Environmental
Protection Agency's use of 42 U.S.C. § 7412 (2000), the FTC's use
of 15 U.S.C. § 57b-2(f) (2000), and the Department of Defense's
use of 5 U.S.C. § 574(j) (2000). Additionally, the Department of
the Treasury has relied on an Exemption 3 statute containing language that is
somewhat different than, but has a similar affect as, "shall be exempt." It
employed 31 U.S.C. § 5319 (2000), which provides that reports and
records filed with the agency under 31 U.S.C. §§ 5311, et seq.,
"are exempt from disclosure under section 552 of title 5." And the Department
of Veterans Affairs has relied on a statute specifying that information collected
by Veterans Affairs personnel in surveys of rates of compensation for nurses
and certain other healthcare professionals "is not subject to disclosure under
section 552 of title 5." 38 U.S.C. § 7451 (2000 & Supp. 2001).
Another
more direct statutory approach increasingly used by Congress is where the law
directs that "no information shall be disclosed" or that "information shall
not be disclosed" under certain circumstances. For instance, 42 U.S.C. §
300hh-12 (2000), which the Department of Health and Human Services has
relied on under Exemption 3, states that "[n]o Federal agency shall disclose
under section 552, any information identifying the location at which materials
in the stockpile under subsection (a) of this section are stored." Similarly,
41 U.S.C. § 254b(d)(2)(C) (2000), also relied on by HHS, states
that "[a] statement that any information received relating to commercial items
that is exempt from disclosure under section 552(b) of Title 5 shall not be
disclosed by the Federal Government."
A closely
related but somewhat different form of statutory protection can be found in
special FOIA provisions that Congress has enacted to cover the "operational
files" of individual intelligence agencies. Just this past year, as part of
the National Defense Authorization Act for Fiscal Year 2004, signed into law
on November 24, 2003, Congress enacted such a statute for the operational files
of the National Security Agency. Section 922 of that Act adds a new section
to the National Security Act of 1947 that now provides that "[t]he Director
of the National Security Agency, in coordination with the Director of Central
Intelligence, may exempt operational files of the National Security Agency from
the provisions of [the FOIA], which require publication, disclosure, search,
or review in connection therewith." Pub. L. No. 108-136, § 922.
It specifies that "operational files" are those files of NSA's Signals Intelligence
Directorate or its Research Associate Directorate "that document the means by
which foreign intelligence or counterintelligence is collected through technical
systems." Id.
This
special statutory protection is quite similar to counterpart Exemption 3 provisions
that have been relied on by such other intelligence agencies as the CIA, the
National Reconnaissance Office, and the National Geospatial-Intelligence Agency
(formerly the National Imaging and Mapping Agency) for many years. See
50 U.S.C. §§ 403-5b, 403-5d (2000). In fact, it was nearly twenty
years ago that the CIA first obtained such special FOIA treatment, through the
Central Intelligence Agency Information Act of 1984, 50 U.S.C. § 431
(2000), for its "operational files." SeeFOIA
Update, Vol. V, No. 4, at 1-2.
In
sum, federal agencies relied on more than 140 different Exemption 3 statutes
during Fiscal Year 2002, as reflected in their annual reports. As can be seen,
Congress has been increasingly active in enacting such statutory provisions,
including disclosure prohibitions that in one form or another are directed at
the administration of the FOIA in particular. As part of its governmentwide
FOIA responsibilities, the Office of Information and Privacy regularly reviews
prospective Exemption 3 statutes for legal sufficiency wherever possible, most
often at the request of agencies that propose them, see, e.g., FOIA
Update, Vol. IX, No. 1, at 1-2, and it will continue to do so as this
area of the law continues to evolve.
This
FOIA Post article was prepared by Office of Information and Privacy law
clerk Jennifer Wittmeyer, with assistance from OIP law clerk Thomas Hitter.
(posted 12/16/03)
