Freedom of Information Act Guide, May 2004
Exemption 3 of the FOIA incorporates the various nondisclosure provisions
that are contained in other federal statutes. As enacted in 1966, Exemption 3 was
broadly phrased so as to simply cover information "specifically exempted from
disclosure by statute." (1) Nearly a decade later, in FAA v. Robertson, the Supreme
Court interpreted this language as evincing a congressional intent to allow statutes
which permitted the withholding of confidential information, and which were
enacted prior to the FOIA, to remain unaffected by the disclosure mandate of the
FOIA; it accordingly held that a broad withholding provision in the Federal Aviation
Act which delegated almost unlimited discretion to agency officials to withhold
specific documents in the "interest of the public" was incorporated within Exemption
3. (2) Fearing that this interpretation could allow agencies to evade the FOIA's
disclosure intent, Congress in effect overruled the Supreme Court's decision by
amending Exemption 3 in 1976. (3)
As amended, Exemption 3 allows the withholding of information prohibited
from disclosure by another statute only if one of two disjunctive requirements are
met: the 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." (4) A
statute thus falls within the exemption's coverage if it satisfies any one of its
disjunctive requirements. (5)
The Electronic Freedom of Information Act Amendments of 1996 (6) require
agencies to list the Exemption 3 statutes upon which they rely in their annual FOIA
reports each year. (7) The Office of Information and Privacy reviews those reports for
consistency in this respect as well as in others. (8)
The Court of Appeals for the District of Columbia Circuit has held that records
may be withheld under the authority of another statute pursuant to Exemption 3 "if --
and only if -- that statute meets the requirements of Exemption 3, including the
threshold requirement that it specifically exempt matters from disclosure." (9) The D.C.
Circuit emphasized that:
That is not to say that the breadth and reach of the disclosure prohibition
must be found on the face of the statute, but that the statute must at least "explicitly
deal with public disclosure." (11) (Previously, the D.C. Circuit had found legislative
history probative on the issue of whether an enactment was intended to serve as a
withholding statute within the meaning of Exemption 3. (12)) Recently, the D.C. Circuit
held that the Endangered Species Act (13) fails to "qualify as a withholding statute
under Exemption 3" because "nothing in [the statute's] language refers to
nondisclosure of information." (14) In any event, though, the legislative history of a
newly enacted Exemption 3 statute may be considered in determining whether the
statute is applicable to matters that are already pending. (15) And quite significantly,
Exemption 3 statutes enacted during the pendency of a FOIA request or during
FOIA litigation have been held to apply retroactively to the requested records. (16)
Most Exemption 3 statutes contain a broad prohibition on disclosure that
operates to prohibit disclosure of specified information by a federal agency
generally and universally, which in turn is accommodated through Exemption 3 as a
bar to public disclosure under the FOIA. (17) Increasingly, however, in what appears to
be a growing trend, Congress has been enacting legislation specifically focused on
prohibiting disclosure under the FOIA only. (18) 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 the FOIA in particular. (19) For instance, a provision of the Antitrust Civil
Process Act (20) 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." (21)
Such language also can be found in section 214 of the Homeland Security Act of
2002, (22) which protects "critical infrastructure information" that is voluntarily
submitted to the federal government for homeland security purposes, by specifically
providing that it "shall be exempt from disclosure" under the FOIA. (23) Another such
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 the FOIA. (24) To the extent that such statutes have been challenged, courts
have found that they qualify as Exemption 3 statutes, (25) though as yet no court has
specifically discussed this more narrow legislative approach to nondisclosure.
On the other hand, Congress also has enacted legislation evidently aimed at
achieving an "Exemption 3 effect" in an indirect fashion -- i.e., by limiting the funds
that an agency may expend in responding to a FOIA request -- though the question
of whether this type of legislation is properly treated as an Exemption 3 statute has
not yet been entirely resolved by the courts. (26) The first such statute enacted was
section 630 of the Agricultural, Rural Development, and Related Agencies
Development Act, 1989, which states that "none of the funds provided in this Act
may be expended to release information acquired from any handler under" the Act. (27)
When section 630 was tested in Cal-Almond v. United States Department of
Agriculture, the Ninth Circuit did not decide whether this statute had the effect of
triggering Exemption 3, but it reacted by observing that "if Congress intended to
prohibit the release of the list under FOIA -- as opposed to the expenditure of funds
in releasing the list -- it could easily have said so." (28) More recently, during the course
of litigation in City of Chicago v. United States Department of Treasury, (29) Congress
enacted the Consolidated Appropriations Resolution of 2003, (30) which specifically
prohibits the Bureau of Alcohol, Tobacco, Firearms, and Explosives from using
appropriated funds to comply with any FOIA request seeking records relating to the
contested firearms sales databases that are maintained by ATF. (31) The law was
enacted shortly before the scheduled oral argument before the Supreme Court,
whereupon the Court vacated the Seventh Circuit disclosure order that was on
appeal and remanded the case for the lower court to consider the effect of this
newly enacted provision. (32) The matter remains pending on remand before the
Seventh Circuit. (33)
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. For example, section 922 of the
National Defense Authorization Act for Fiscal Year 2004 (34) this past year added a new
section to the National Security Act of 1947 (35) that 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." (36) This special statutory protection is modeled after, and quite similar to,
the CIA Information Act of 1984, (37) through which the Central Intelligence Agency
was the first intelligence agency to obtain such exceptional FOIA treatment for its
"operational files." (38) Two other such intelligence agencies -- the National
Reconnaissance Office and the National Geospatial-Intelligence Agency (formerly
the National Imaging and Mapping Agency and before that the Defense Mapping
Agency) -- have received similar FOIA protection under counterpart statutory
Exemption 3 generally is triggered only by federal statutes. (40) Federal rules of
procedure, which are promulgated by the Supreme Court, ordinarily do not qualify
under Exemption 3. (41) However, when a rule of procedure is subsequently modified
and thereby specifically enacted into law by Congress, it may qualify under the
exemption. (42) While the issue of whether a treaty can qualify as a statute under
Exemption 3 has not yet been ruled on in any FOIA case, there is a sound policy
basis for concluding that a treaty can so qualify. (43)
Once it is established that a statute is a nondisclosure statute and that it
meets at least one of the disjunctive requirements of Exemption 3, an agency next
must establish that the records in question fall within the withholding provision of
the nondisclosure statute. (44) This, in turn, often will require an interpretation of the
nondisclosure statute. (45) Courts have been somewhat divided over whether to
construe the withholding criteria of the nondisclosure statute narrowly, consistent
with the strong disclosure policies specifically embodied in the FOIA, (46) or broadly,
pursuant to deferential standards of general administrative law. (47) The Court of
Appeals for the Second Circuit observed that "the Supreme Court has never applied
a rule of [either] narrow or deferential construction to withholding statutes." (48)
Consequently, it adopted a pragmatic, and essentially neutral, stance regarding
interpretation of Exemption 3 statutes, "looking to the plain language of the statute
and its legislative history, in order to determine legislative purpose." (49)
Under Exemption 3, judicial review under the FOIA of agency action is limited
to determinations that the withholding statute qualifies as an Exemption 3 statute
and that the records fall within the statute's scope. (50) With respect to subpart (B)
statutes -- which permit agencies some discretion to withhold or disclose records --
the agency's exercise of its discretion under the withholding statute is governed not
by the FOIA, but by the withholding statute itself; (51) judicial review of that should not
be within the FOIA's jurisdiction. (52)
Agencies and courts ordinarily specify the nondisclosure statute upon which
Exemption 3 withholding is based. At least one court, however, found a need to
conceal the nondisclosure statute that formed the basis for its ruling that the agency
properly invoked Exemption 3, stating that "national security would be compromised
and threats to the safety of individuals would arise" if it engaged in a specific
discussion of the legal basis for Exemption 3's use in that exceptional case. (53)
Many statutes have been held to qualify as Exemption 3 statutes under the
exemption's first subpart -- which encompasses statutes that require information to
be withheld and leave the agency no discretion on the issue. A primary example is
Rule 6(e) of the Federal Rules of Criminal Procedure, (54) which regulates disclosure of
matters occurring before a grand jury and which satisfies the basic "statute"
requirement of Exemption 3 because it was specially amended by Congress in
1977. (55) It is well established that "Rule 6(e) embodies a broad sweeping policy of
preserving the secrecy of grand jury material regardless of the substance in which
the material is contained." (56) Yet defining the parameters of Rule 6(e) protection is
not always a simple task and has been the subject of much litigation. In Fund for
Constitutional Government v. National Archives & Records Service, the Court of
Appeals for the District of Columbia Circuit stated that the scope of the secrecy that
must be afforded grand jury material "is necessarily broad" and, consequently, that
"it encompasses not only the direct revelation of grand jury transcripts but also the
disclosure of information which would reveal 'the identities of witnesses or jurors,
the substance of the testimony, the strategy or direction of the investigation, the
deliberations or questions of the jurors, and the like.'" (57)
However, in its scrutiny of the scope of Rule 6(e) in Senate of Puerto Rico v.
United States Department of Justice, (58) the D.C. Circuit firmly held that neither the
fact that information was obtained pursuant to a grand jury subpoena, nor the fact
that the information was submitted to the grand jury, is sufficient, in and of itself, to
warrant the conclusion that disclosure is necessarily prohibited by Rule 6(e). (59)
Rather, an agency must establish a nexus between the release of that information
and "revelation of a protected aspect of the grand jury's investigation." (60) This
requirement is particularly applicable to "extrinsic" documents that were created
entirely independent of the grand jury process; for such a document, the D.C. Circuit
emphasized in Washington Post Co. v. United States Department of Justice, the
required nexus must be apparent from the information itself, and "the government
cannot immunize [it] by publicizing the link." (61) As a rule, an agency must be able to
adequately document and support its determination that disclosure of the record in
question would reveal a secret aspect of the grand jury proceeding. (62) And to do so,
of course, agency FOIA personnel necessarily "must" be afforded unrestricted
access to grand jury-protected information, any initial thought to the contrary
A subsequent, odd decision by the Court of Appeals for the First Circuit,
Church of Scientology International v. United States Department of Justice, further
clouds the precise contours of Rule 6(e). (64) Initially following Senate of Puerto Rico,
the First Circuit rejected a position that the secrecy concerns protected by Rule 6(e)
are automatically implicated for any materials "simply located in grand jury files." (65)
Nevertheless, apparently operating under the premise that all grand jury exhibits
constitute materials actually presented to the grand jurors, it further specified that,
even with regard to "extrinsic documents," it would be "reasonable for an agency to
withhold any document containing a grand jury exhibit sticker or that is otherwise
explicitly identified on its face as a grand jury exhibit, as release of such documents
reasonably could be viewed as revealing the focus of the grand jury investigation." (66)
Thus, the First Circuit has seemingly placed itself in at least some degree of conflict
with the D.C. Circuit's Senate of Puerto Rico interpretation of the grand jury rule. (67)
The Court of Appeals for the Ninth Circuit has held that a provision of the
Ethics in Government Act of 1978, (68) protecting the financial disclosure reports of
special government employees, meets the requirements of subpart (A). (69) Another
provision of the Ethics in Government Act, providing for the disclosure of financial
disclosure reports of certain government employees, (70) was found to qualify as an
Exemption 3 statute, allowing disclosure only if a requester met that statute's
particular disclosure requirements. (71) While not actually distinguishing between the
two subparts of Exemption 3, the Supreme Court in Baldrige v. Shapiro, (72) held that
the Census Act (73) is an Exemption 3 statute because it requires that certain data be
withheld in such a manner as to leave the Census Bureau with no discretion
Sections 706(b) and 709(e) of Title VII of the Civil Rights Act of 1964 (75) have also
been held to meet the subpart (A) requirement because they allow the EEOC no
discretion to publicly disclose matters pending before the Commission. (76) Similarly,
the statute governing records pertaining to Currency Transaction Reports (77) has been
found to meet the requirements of subpart (A). (78) The International Investment
Survey Act of 1976 (79) has been held to be a subpart (A) statute, (80) and certain portions
of the overall public disclosure provisions of the Consumer Product Safety Act (81)
likewise have been found to satisfy subpart (A)'s nondisclosure requirements. (82)
Additionally, the Hart-Scott-Rodino Antitrust Improvement Amendments to
the Clayton Antitrust Act (83) prohibit public disclosure of premerger-notification
materials submitted to the Department of Justice or the Federal Trade
Commission. (84) Similarly, a provision of the Antitrust Civil Process Act, (85) which
exempts from the FOIA transcripts of oral testimony taken in the course of
investigations under that Act, has been held to qualify as a subpart (A) statute. (86)
Likewise, a provision of the now-expired Independent Counsel Reauthorization
Act, (87) was considered to qualify under Exemption 3, as the Department of Justice
and the Independent Counsel had no discretion to disclose to the public materials
supplied under it to the court. (88)
Also, a section of the Transportation Safety Act of 1974, (89) which states that
the NTSB shall withhold from public disclosure cockpit voice recordings associated
with accident investigations, was found to fall within subsection (A) of Exemption
3. (90) Similarly, information contained in the Social Security Administration's "Numident
system," which was obtained from death certificates provided by state agencies,
has been held exempt on the basis of subpart (A) on the grounds that the language
of the statute (91) "leaves no room for agency discretion." (92)
In a decision construing the application of the identical Exemption 3 language
of the Government in the Sunshine Act (93) to the Defense Nuclear Facilities Safety
Board Act (94) the D.C. Circuit has held that the latter statute allows no discretion with
regard to the release of the Board's proposed recommendations, thus meeting the
requirement of subpart (A). (95) By contrast, the D.C. Circuit found that the statute
governing release by the FBI of criminal record information ("rap sheets") (96) fails to
fulfill subpart (A)'s requirement of absolute withholding because the statute implies
that the FBI has discretion to withhold records and, in fact, the FBI had exercised
such discretion by its inconsistent manner of releasing "rap sheets" to the public. (97)
Most Exemption 3 cases involve subpart (B) -- which encompasses statutes
that either provide criteria for withholding information or refer to particular matters
to be withheld -- either explicitly or implicitly. For example, a provision of the
Consumer Product Safety Act (98) has been held to set forth sufficiently definite
withholding criteria for it to fall within the scope of subpart (B), (99) and the provision
which prohibits the Commission from disclosing any information that is submitted to
it pursuant to section 15(b) of the Act (100) has been held to meet the requirements of
subpart (B) by referring to particular types of matters to be withheld. (101)
Section 777 of the Tariff Act, (102) governing the withholding of "proprietary
information," has been held to refer to particular types of information to be withheld
and thus to be a subpart (B) statute. (103) Section 12(d) of the Railroad Unemployment
Insurance Act (104) refers to particular types of matters to be withheld -- information
which would reveal employees' identities -- and thus has been held to satisfy
subpart (B). (105) Section 410(c)(2) of the Postal Reorganization Act, (106) governing the
withholding of "information of a commercial nature
practice would not be publicly disclosed," has been held to refer to "particular types
of matters to be withheld" and thus to be a subpart (B) statute. (107)
Similarly, it has been held that section 12(c)(1) of the Export Administration
Act, governing the disclosure of information from export licenses and applications, (108)
authorizes the withholding of a sufficiently narrow class of information to satisfy the
requirements of subpart (B) and thus qualifies as an Exemption 3 statute. (109)
Likewise, the Collection and Publication of Foreign Commerce Act, (110) which explicitly
provides for nondisclosure of shippers' export declarations, qualifies as an
Exemption 3 statute under subpart (B). (111)
The Supreme Court has held that section 102(d)(3) of the National Security Act
of 1947, (112) which requires the Director of the CIA to protect "intelligence sources and
methods," clearly refers to particular types of matters to be withheld and thus
comes within the ambit of subpart (B), (113) and in some instances provides a basis for
an agency refusing to even confirm or deny the existence of records. (114) (See the
discussion of the use and origin of the "Glomar" response under Exemption 1, In
Camera Submissions, above.)
Likewise, section 6 of the Central Intelligence Agency Act of 1949 (115) --
protecting from disclosure "the organization, functions, names, official titles, salaries
or numbers of personnel" employed by the CIA -- meets the requirements of subpart
(B). (116) Similarly, section 6 of Public Law No. 86-36, (117) pertaining to the organization,
functions, activities, and personnel of the National Security Agency, has been held to
qualify as a subpart (B) statute, (118) as has 18 U.S.C. Â§ 798(a), (119) which criminalizes the
disclosure of any classified information "concerning the nature, preparation, or use of
any code, cipher or cryptographic system of the United States." (120) A provision of the
Atomic Energy Act, prohibiting the disclosure of "restricted data" to the public, (121)
refers to particular types of matters -- specifically, information pertaining to atomic
weapons and special nuclear material (122) -- and thus has been held to qualify as a
subpart (B) statute as well. (123)
Section 7332 of the Veterans Health Administration Patient Rights Statute (124)
generally prohibits disclosure of even the abstract fact that medical records on
named individuals are maintained pursuant to that section, but it provides specific
criteria under which particular medical information may be released, and thus has
been found to satisfy the requirements of subpart (B). (125) Records created by the
Department of Veterans Affairs as part of a medical quality-assurance program (126)
have similarly been held to qualify for Exemption 3 protection. (127) Likewise, one court
has suggested that section 5038 of the Juvenile Delinquency Records Statute, (128)
which generally prohibits disclosure of the existence of records compiled pursuant
to that section, but which does provide specific criteria for releasing the information,
qualifies as a subpart (B) statute. (129) Similarly, Section 207 of the National Park
Omnibus Management Act of 1998, (130) which sets forth criteria for the Secretary of the
Interior to apply when exercising discretion about release of "[i]nformation
concerning the nature and specific location of [certain] National Park System
resource[s]," including resources which are "endangered, threatened, rare, or
commercially valuable," has been found to be within the scope of subpart (B). (131)
The Court of Appeals for the District of Columbia Circuit has held that a
portion of the Patent Act (132) satisfies subpart (B) because it identifies the types of
matters -- patent applications and information concerning them -- intended to be
withheld. (133) As well, the portion of the Civil Service Reform Act concerning the
confidentiality of certain labor relations training and guidance materials, (134) has been
held to qualify as a subpart (B) withholding statute. (135) In addition, the United States
Information and Educational Exchange Act of 1948 (the "Smith-Mundt Act") (136)
qualifies as a subpart (B) statute insofar as it prohibits the disclosure of certain
overseas programming materials within the United States. (137) While the Smith-Mundt
Act originally applied only to records prepared by the now-defunct United States
Information Agency, the Foreign Affairs Reform and Restructuring Act of 1998
applied the relevant provisions of that statute to those programs within the
Department of State that absorbed USIA's functions. (138)
The Commodity Exchange Act, (139) which prohibits the disclosure of business
transactions, market positions, trade secrets, or customer names of persons under
investigation under the Act, has been held to refer to particular types of matters and
thus to satisfy subpart (B). (140) The D.C. Circuit has held that a provision of the Federal
Aviation Act, (141) relating to security data the disclosure of which would be
detrimental to the safety of travelers, similarly shields that particular data from
disclosure under the FOIA. (142) It also has been held that the DOD's "technical data"
statute, (143) which protects technical information with "military or space application"
for which an export license is required, satisfies subpart (B) because it refers to
sufficiently particular types of matters. (144)
Lastly, the Federal Transfer Technology Act, (145) which allows federal agencies
the discretion to protect for five years any commercial and confidential information
that results from a Cooperative Research And Development Agreement (CRADA)
with a nonfederal party, has been held to qualify as an Exemption 3 statute. (146) Under
a concurrent provision in that Act, the agency also is prohibited from disclosing any
commercial and confidential information obtained from the CRADA's private-sector
partner. (147) (See also the discussion of commercial information under Exemption 4,
Commercial or Financial Information, below.)
Some statutes have been found to satisfy both Exemption 3 subparts. For
example, while the Court of Appeals for the Third Circuit has held that section 222(f)
of the Immigration and Nationality Act (148) sufficiently limits the category of
information it covers -- records pertaining to the issuance or refusal of visas and
permits to enter the United States -- to qualify as an Exemption 3 statute under
subpart (B), (149) the Court of Appeals for the District of Columbia Circuit has held
that the section satisfies subpart (A) as well as subpart (B). (150)
Similarly, Exemption 3 protection for information obtained by law enforcement
agencies pursuant to the statute governing court-ordered wiretaps, Title III of the
Omnibus Crime Control and Safe Streets Act of 1968, (151) has been recognized by
district courts on a variety of bases. (152) However, in Lam Lek Chong v. DEA, (153) the
D.C. Circuit, finding that it "clearly identifies intercepted communications as the
subject of its disclosure limitations," held that "Title III falls squarely within the scope
of subsection (B)'s second prong, as a statute referring to 'particular matters to be
Applications and orders for "pen registers" properly may be withheld
pursuant to a sealing order issued by a court in accordance with 18 U.S.C. Â§ 3123(d) (155)
but once the sealing order is lifted, the statute no longer prohibits release under the
FOIA. (156) In one case, information acquired through the use of a "pen register"
mistakenly was held to be protected from disclosure by Title III, (157) and was
incorrectly found to fall under Exemption 3. (158)
The withholding of tax return information has been approved under three
different theories. The United States Supreme Court and most appellate courts that
have considered the matter have held either explicitly or implicitly that section 6103
of the Internal Revenue Code (159) satisfies subpart (B) of Exemption 3. (160) The Courts of
Appeals for the D.C., Fifth, Sixth, and Tenth Circuits have further reasoned that
section 6103 is a subpart (A) statute to the extent that a person generally is not
entitled to access to tax returns or return information of other taxpayers. (161)Last year, however, the D.C. Circuit held that "the IRS must disclose determinations
denying or revoking tax exemptions, but do so in redacted form, thus protecting the
privacy of the organizations involved." (162)
It should be noted that pursuant to sections 6103(c) and 6103(e)(7), individuals
are not entitled to obtain tax return information even regarding themselves if it is
determined that release would impair enforcement by the IRS. (163) Likewise,
information that would provide insights into how the IRS selects returns for audits
has regularly been found to impair IRS's enforcement of tax laws. (164) Of course, it also
must be remembered that section 6103 applies only to tax return information
obtained by the Department of the Treasury, not to any such information maintained
by other agencies that was obtained by means other than through the provisions
of the Internal Revenue Code. (165)
Congress recently enacted section 6105 of the Internal Revenue Code, (166) which
now governs the withholding of tax convention information such as bilateral
agreements providing for, inter alia, the exchange of foreign tax relevant information
with the United States and mutual assistance in tax matters. Section 6105 has been
held to be an Exemption 3 statute. (167)
At least one court of appeals and several district courts have explicitly
embraced a third theory based upon the reasoning of Zale Corp. v. IRS. (168) These
courts have held that it is not necessary to view section 6103 as an Exemption 3
statute in order to withhold tax return information because the provisions of this tax
code section are intended to operate as the sole standard governing the disclosure
or nondisclosure of such information, thereby "displacing" the FOIA. (169)
Viewing section 6103 as a "displacement" statute permitted some courts to
avoid the de novo review required by the FOIA and to apply instead less stringent
standards of review pursuant to the Administrative Procedure Act, (170) and could
relieve agencies from certain procedural requirements of the FOIA, such as the time
limitations for responding to requests and the duty to segregate and release
nonexempt information. (171) Even under this approach, though, the government likely
would be required to provide detailed Vaughn Indexes of the information being
withheld, rather than general affidavits; the Sixth Circuit required this despite the
fact that the court below had relied solely on the "displacement" theory for its
However, other courts have specifically refused to adopt this "displacement"
analysis on the ground that to do so, once it is already evident that section 6103 is an
Exemption 3 statute, "would be an exercise in judicial futility [requiring district
courts] to engage in both FOIA and Zale analyses when confronted" with such
cases. (173) Most significantly, the D.C. Circuit has squarely rejected the "displacement"
argument on the basis that the procedures in section 6103 for members of the public
to obtain access to IRS documents do not duplicate, and thus do not "displace,"
those of the FOIA. (174)
The D.C. Circuit's rejection of the "displacement" theory in relation to
section 6103 is consistent with previous D.C. Circuit decisions involving similar
"displacement" arguments. For example, it had previously rejected a "displacement"
argument involving the Department of State's Emergency Fund statutes (175) when it
held that inasmuch as Exemption 3 is not satisfied by these statutes, information
cannot be withheld pursuant to them, even though they were enacted after the
Yet the D.C. Circuit has held that the procedures of the Presidential
Recordings and Materials Preservation Act (177) exclusively govern the disclosure of
transcripts of the tape recordings of President Nixon's White House conversations,
based upon that Act's comprehensive, carefully tailored procedure for releasing
Presidential materials to the public. (178) Thus, the "displacement" theory may still be
advanced for statutes which provide procedures for the release of information to the
public that, in essence, duplicate the procedures provided by the FOIA, (179) or for
statutes that comprehensively override the FOIA's access scheme. (180) In this
connection, it should be noted that the FOIA's specific fee provision referring to
other statutes that set fees for particular types of records (181) has the effect of causing
those statutes to "displace" the FOIA's basic fee provisions. (182) (For a further
discussion of this point, see Fees and Fee Waivers, below.)
Certain statutes fail to meet the requisites of either Exemption 3 prong. For
instance, the Court of Appeals for the District of Columbia Circuit, in holding that
provisions governing the FBI's sharing of "rap sheets" (183) do not qualify as an
Exemption 3 statute because they do not expressly prohibit the disclosure of "rap
sheets," explained that even if the provisions met the exemption's threshold
requirement, they would not qualify as an Exemption 3 statute as they fail to satisfy
either of its subparts. (184) Likewise, the Copyright Act of 1976 (185) has been held to
satisfy neither Exemption 3 subpart because, rather than prohibiting disclosure, it
specifically permits public inspection of copyrighted documents. (186)
It has also been held that section 360j(h) of the Medical Device Amendments
of 1976 (187) is not an Exemption 3 statute because it does not specifically prohibit the
disclosure of records, (188) nor is section 410(c)(6) of the Postal Reorganization Act, (189)
because the broad discretion afforded the Postal Service to release or withhold
records is not sufficiently specific. (190) Similarly, section 1106 of the Social Security
Act (191) is not an Exemption 3 statute because it gives the Secretary of Health and
Human Services wide discretion to enact regulations specifically permitting
disclosure. (192) The Federal Insecticide, Fungicide, and Rodenticide Act (193) also does
not satisfy either prong of Exemption 3 because the withholding of certain
information is entirely discretionary under that Act. (194)
A particularly difficult Exemption 3 issue was put to rest by the Supreme
Court in 1988. In analyzing the applicability of Exemption 3 to the Parole Commission
and Reorganization Act (195) and Rule 32 of the Federal Rules of Criminal Procedure,
each of which governs the disclosure of presentence reports, the Supreme Court
held that they are Exemption 3 statutes only in part. (196) The Court found that they do
not permit the withholding of an entire presentence report, but rather only those
portions of a presentence report pertaining to a probation officer's sentencing
recommendations, certain diagnostic opinions, information obtained upon a promise
of confidentiality, and information which, if disclosed, might result in harm to any
person, and that "the remaining parts of the reports are not covered by this
exemption, and thus must be disclosed unless there is some other exemption which
applies to them." (197)
Another Exemption 3 issue concerns the Trade Secrets Act (198) which prohibits
the unauthorized disclosure of certain commercial and financial information.
Although the Supreme Court has declined to decide whether the Trade Secrets Act
is an Exemption 3 statute, (199) most courts confronted with the issue have held that it
is not. (200)
In 1987, the D.C. Circuit issued a decision that "definitively" resolved the issue
by holding that the Trade Secrets Act does not satisfy either of Exemption 3's
requirements and thus does not qualify as a separate withholding statute. (201) First,
its prohibition against disclosure is not absolute, as it prohibits only those
disclosures that are "not authorized by law." (202) Because duly promulgated agency
regulations can provide the necessary authorization for release, the agency
"possesses discretion to control the applicability" of the Act. (203) The existence of this
discretion precludes the Trade Secrets Act from satisfying subpart (A) of Exemption
3. (204) Moreover, the court held that the Trade Secrets Act fails to satisfy the first
prong of subpart (B) because it "in no way channels the discretion of agency
decisionmakers." (205) Indeed, the court concluded, this utter lack of statutory guidance
renders the Trade Secrets Act susceptible to invocation at the "whim of an
administrator." (206) Finally, it was held that the Act also fails to satisfy the second
prong of subpart (B) because of the "encyclopedic character" of the material within
its scope and the absence of any limitation on the agencies covered or the sources of
data included. (207) Given all these elements, the court held that the Trade Secrets Act
simply does not qualify as an Exemption 3 statute. (208) This followed the Department
of Justice's stated policy position on the issue. (209)
The D.C. Circuit's decision on this issue is entirely consistent with the
legislative history of the 1976 amendment to Exemption 3, which states that the
Trade Secrets Act was not intended to qualify as a nondisclosure statute under the
exemption and that any analysis of trade secrets and commercial or financial
information should focus instead on the applicability of Exemption 4. (210) However,
some confidential business information now may be protected by the National
Defense Authorization Act for Fiscal Year 1997. (211) This statute, enacted in 1996,
provides blanket protection for the proposals of unsuccessful offerors submitted in
response to a solicitation for a competitive proposal. (212) Under it, a successful
offeror's proposal is also protected if it is not "set forth or incorporated by reference"
in the final contract; (213) the key determinant of exempt status is whether the proposal
was actually set forth in or incorporated into the contract. (214) Last year, the District
Court for the District of Columbia firmly held it to be a subpart (B) statute in
Hornbostel v. Department of the Interior. (215)
One court has incorrectly treated a provision of the Procurement Integrity
Act (216) as an Exemption 3 statute. (217) That provision -- encompassing pre-award
contractor bids, proposal information, and source selection information -- was
amended in 1996 to prohibit disclosures only "other than as provided by law," and it
also now provides that it "does not
established under any other law or regulation." (218) Although this one court failed to
take notice of these applicable exceptions, another has found that they clearly
evince congressional intent that the prohibition on disclosure is limited to those
disclosures not contemplated by law, such as "leaks." (219)
Lastly, a controversial issue at one time was whether the Privacy Act of
1974 (220) could serve as an Exemption 3 statute. (221) The Privacy Act authorizes an
individual to obtain access to those federal records maintained under the individual's
name or personal identifier, subject to certain broad, system-wide exemptions. (222) If
the Privacy Act had been regarded as an Exemption 3 statute, records exempt from
disclosure to first-party requesters under the Privacy Act also would have been
exempt under the FOIA; if not, requesters would have been able to obtain
information on themselves under the FOIA notwithstanding that such information
was exempt under the Privacy Act. In the early 1980s, the Department of Justice
took the position that the Privacy Act was an Exemption 3 statute within the first-party requester context. (223) When a conflict subsequently arose among the circuits
that considered the proper relationship between these two access statutes, the
Supreme Court agreed to resolve the issue. (224) However, these cases became moot
when Congress, upon enacting the Central Intelligence Agency Information Act in
1984, explicitly provided that the Privacy Act is not an Exemption 3 statute. (225) Thus,
the Supreme Court dismissed the appeals in these cases and this issue has been
placed to rest. (226)
1. Pub. L. No. 89-487, 80 Stat. 250, 251 (1966) (subsequently
2. 422 U.S. 255, 266 (1975).
3. See Pub. L. No. 94-409, 90 Stat. 1241, 1247
(1976) (single FOIA amendment enacted together with the Government in the
Sunshine Act in 1976, 5 U.S.C. Â§ 552b (2000)); see also FOIA
Update, Vol. XV, No. 2, at 6 (connecting disclosure policies of Government
in the Sunshine Act and FOIA).
4. 5 U.S.C. Â§ 552(b)(3) (2000) (emphasis added).
5. See Long v. IRS, 742 F.2d 1173, 1178
(9th Cir. 1984); Irons & Sears v. Dann, 606 F.2d 1215, 1220 (D.C.
Cir. 1979); Am. Jewish Cong. v. Kreps, 574 F.2d 624, 628 (D.C. Cir.
6. Pub. L. No. 104-231, 110 Stat. 3048.
7. See 5 U.S.C. Â§ 552(e)(1)(A)(ii) (requiring
annual FOIA reports beginning with Fiscal Year 1998); FOIA Update,
Vol. XVIII, No. 3, at 5 (annual FOIA report guidelines issued by Department
of Justice); see also FOIA Post, "FOIA Counselor Q&A:
Annual FOIA Reports" (posted 12/19/03); FOIA Post, "Agencies Rely
on Wide Range of Exemption 3 Statutes" (posted 12/16/03); FOIA Post,
"Summary of Annual FOIA Reports for Fiscal Year 2002" (posted 8/8/03); FOIA
Post, "Supplemental Guidance on Annual FOIA Reports" (posted 8/13/01).
8. See FOIA Post, "GAO E-FOIA
Implementation Report Issued" (posted 3/23/01) (describing OIP process of
"reviewing all agency annual reports
individual agencies to discuss and resolve any identified question or discrepancy");
see, e.g., FOIA Post, "Summary of Annual FOIA Reports for
Fiscal Year 2002" (posted 9/3/03) (describing agency reliance upon Exemption
3 statutes during Fiscal Year 2002).
9. Reporters Comm. for Freedom of the Press v. United
States Dep't of Justice, 816 F.2d 730, 734 (D.C. Cir.), modified
on other grounds, 831 F.2d 1124 (D.C. Cir. 1987), rev'd on other
grounds, 489 U.S. 749 (1989); see also Nat'l Ass'n of Home
Builders v. Norton, 309 F.3d 26, 37 (D.C. Cir. 2003) (holding that statute
failed to qualify as withholding statute under Exemption 3 because it did
not refer to "nondisclosure of information"); Essential Info., Inc. v.
USIA, 134 F.3d 1165, 1168 (D.C. Cir. 1998) (ruling that statute that
prohibits "dissemination" and "distribution" of certain information within
U.S. is qualifying "nondisclosure" statute).
10. Reporters Comm., 816 F.2d at 735; see
also Anderson v. HHS, 907 F.2d 936, 951 n.19 (10th Cir. 1990)
(holding that agency interpretation of statute not entitled to deference
in determining whether statute qualifies under Exemption 3). But see
Wis. Project on Nuclear Arms Control v. United States Dep't of Commerce,
317 F.3d 275, 284 (D.C. Cir. 2003) (finding that Congress made plain its
intent to prevent the disclosure of export-application information by implementing
a "comprehensive legislative scheme" and by granting the President the power
to prevent a lapse of the statute's provisions, thereby satisfying Exemption
3's requirements); Times Publ'g Co. v. United States Dep't of Commerce,
236 F.3d 1286, 1291-92 (11th Cir. 2001) (considering the legislative history
of a nondisclosure statute and related statute, together with a related
executive order, to conclude that Congress intended to create a "comprehensive
legislative scheme" prohibiting disclosure); Meyerhoff v. EPA, 958
F.2d 1498, 1501-02 (9th Cir. 1992) (looking to legislative history of withholding
statute to determine that statutory amendment did not create new prohibition
on disclosure, but rather clarified existing nondisclosure provision); cf.
Essential Info., 134 F.3d at 1165-67 (surveying legislative history
of Smith-Mundt Act, 22 U.S.C. Â§ 1461-1a (2000), to bolster Exemption 3 ruling).
11. Reporters Comm., 816 F.2d at 736; see,
e.g., Cal-Almond, 960 F.2d at 108 (finding disclosure prohibition
sought to be effectuated through appropriations limitation to be inadequate
under Exemption 3); see also Nat'l Ass'n of Home Builders,
309 F.3d at 37 ("Looking first to the 'plain language of the statute,' there
is nothing in the Endangered Species Act that refers to withholding information."
(quoting Ass'n of Retired R.R. Workers, Inc. v. United States R.R. Ret.
Bd., 830 F.2d 331, 334 (D.C. Cir. 1987))).
12. See Pub. Citizen Health Research Group
v. FDA, 704 F.2d 1280, 1284 (D.C. Cir. 1983).
13. 16 U.S.C. Â§ 1533(a)(1) (2000).
14. Nat'l Ass'n of Home Builders, 309 F.3d
at 37-38 (observing that the statute's plain language does not refer "to
withholding information," and holding that the agency's reliance on "'legislative
history will not avail if the language of the statute does not explicitly
deal with public disclosure'" (quoting Reporter's Comm., 816 F.3d
15. See Long v. IRS, 742 F.2d 1173,
1183-84 (9th Cir. 1984).
16. See Wis. Project, 317 F.3d at 284-85
(finding that agency properly relied upon statute to withhold information
retroactively after Congress re-enacted statute during litigation); Sw.
Ctr. for Biological Diversity v. USDA, 314 F.3d 1060, 1062 (9th Cir.
2002) (determining that agency can rely on newly enacted National Parks
Omnibus Management Act, 16 U.S.C. Â§ 5937 (2000), to withhold information,
even though it was enacted after FOIA litigation had commenced); Times
Publ'g, 236 F.3d at 1292 (finding that agency properly relied upon Export
Administration Act, 50 U.S.C. app. Â§ 2411(c)(1) (2000), to withhold
information when Congress re-enacted statute during course of litigation,
even though statute had lapsed at time of request); Chamberlain v. Kurtz,
589 F.2d 827, 835 (5th Cir. 1979) (applying amended version of Internal
Revenue Code to pending case where court determined that no injustice would
result); see also Dep't of Justice v. City of Chicago, 537
U.S. 1229, 1229 (2003) (remanding for determination of effect of Consolidated
Appropriations Resolution, Pub. L. No. 108-7, Â§ 644, 117 Stat. 11 (2003),
which prohibits expenditure of funds for processing certain agency information
and was enacted subsequent to lower court decision to disclose such information);
FOIA Post, "Supreme Court Vacates and Remands in ATF Database Case"
(posted 3/25/03) (discussing possible effect of newly enacted statute signed
into law less than two weeks before scheduled oral argument in government's
appeal of City of Chicago v. United States Dep't of the Treasury,
287 F.3d 628 (7th Cir.), amended upon denial of reh'g en banc (7th
Cir.), cert. granted, 537 U.S. 1018 (2002)); cf. Am. Jewish
Cong., 574 F.2d at 627 (applying amended version of Exemption 3 to pending
case); Lee Pharm. v. Kreps, 577 F.2d 610, 614 (9th Cir. 1978) (same);
FOIA Post, "Supreme Court Rules in Exemption 5 Case" (posted 4/4/01)
(discussing Department of the Interior's legislative success with enactment
of provision of National Parks Omnibus Management Act, 16 U.S.C. Â§ 5937,
as Exemption 3 statute that readily addressed problem of two appellate courts'
refusal to protect nest-site locations of endangered species under Exemption
17. 5See, e.g., Pub. L. No. 107-56,
Â§ 901, 115 Stat. 272 (2001) (to be codified at 50 U.S.C. Â§ 403-3(c)(7))
(requiring Director of Central Intelligence to protect "intelligence sources
and methods" from unauthorized disclosure); 18 U.S.C. Â§Â§ 2510-2520
(2000) (prohibiting disclosure of information obtained from court-ordered
"Title III" wiretaps); Fed. R. Crim. P. 6(e) (establishing general rule
of secrecy for matters occurring before a grand jury).
18. 5See, e.g., Pub. L. No. 107-296,
Â§ 214(a)(1)(A), 116 Stat. 2135 (2002) (prohibiting FOIA disclosure of critical
infrastructure information voluntarily submitted to federal government for
homeland security purposes) (enacted Nov. 25, 2002); 39 U.S.C. Â§ 3016(d)
(2000) (barring FOIA disclosure of documentary material provided pursuant
to subpoena issued under statutory provision pertaining to nonmailable matter)
(enacted Dec. 12, 1999); 42 U.S.C. Â§ 7401 note (2000) (prohibiting
FOIA disclosure of information submitted to EPA detailing "worst-case scenarios"
that might result from accidental or intentional releases of chemicals or
fuels) (enacted Aug. 5, 1999); 16 U.S.C. Â§ 5937 (2000) (prohibiting
FOIA disclosure of information pertaining to National Park System resources
such as endangered species) (enacted Nov. 13, 1998); 38 U.S.C. Â§ 7451 (2000)
(prohibiting FOIA disclosure of certain information collected by Department
of Veterans Affairs in surveys of rates of compensation) (enacted Aug. 15,
1990); 42 U.S.C. Â§ 7412 (2000) (prohibiting FOIA disclosure of certain information
acquired under Clean Air Act, 42 U.S.C. Â§ 7412 (2000), if such information
would pose threat to national security) (enacted Aug. 5, 1999); 31 U.S.C.
Â§ 3729 (2000) (prohibiting FOIA disclosure of certain information furnished
pursuant to False Claims Act, 31 U.S.C. Â§ 3729) (enacted Oct. 27, 1986);
31 U.S.C. Â§ 5319 (2000) (preventing FOIA disclosure of Currency Transaction
Reports) (enacted Sept. 13, 1982); 15 U.S.C. Â§ 57b-2(f) (2000) (prohibiting
FOIA disclosure of information received by FTC for investigative purposes)
(enacted May 28, 1980); 15 U.S.C. Â§ 1314(g) (2000) (proscribing FOIA
disclosure of certain records gathered in course of investigations under
Antitrust Civil Process Act (enacted Sept. 30, 1976)).
19. See FOIA Post, "Agencies Rely
on Wide Range of Exemption 3 Statutes" (posted 12/16/03) (discussing "disclosure
prohibitions that are not general in nature but rather are specifically
directed toward disclosure under the FOIA in particular").
20. 15 U.S.C. Â§ 1314(g).
21. 15 U.S.C. Â§ 1314(g) (emphasis added).
22. Pub. L. No. 107-296, 116 Stat. 2135 (codified
at 6 U.S.C.A. Â§ 133(a)(1)(A) (West Supp. 2004)); see FOIA
Post, "Agencies Rely on Wide Range of Exemption 3 Statutes" (posted
12/16/03) (citing new Homeland Security Act Exemption 3 statute among statutes
specifically directed at nondisclosure under FOIA); see also FOIA
Post, "Critical Infrastructure Information Regulations Issued by DHS"
(posted 2/27/04) (discussing implementation of new Exemption 3 statute).
23. See 6 U.S.C.A. Â§ 133(a)(1)(A); see also
FOIA Post, "Homeland Security Law Contains New Exemption 3 Statute"
(posted 1/27/03) (analyzing new Homeland Security Act Exemption 3 statute).
24. See, e.g., 42 U.S.C. Â§ 300hh-12(c) (2000)
(providing that "[n]o Federal agency shall disclose under [the FOIA] any
information identifying the location at which materials in the [strategic
national] stockpile under subsection (a) are stored"); see also 41
U.S.C. Â§ 254b(d)(2)(C) (2000) (providing that "[a] statement that any
information received relating to commercial items that is exempt from disclosure
under [the FOIA] shall not be disclosed by the Federal Government")
25. See, e.g., Sw. Ctr. for Biological Diversity
v. USDA, 170 F. Supp. 2d at 944-45 (holding that 16 U.S.C. Â§ 5937
(2000) is Exemption 3 statute), aff'd, 314 F.3d 1060, 1062 (9th Cir.
2002); Linn v. United States Dep't of Justice, No. 92-1406, 1995
WL 631847, at *30 (D.D.C. Aug. 22, 1995) (holding that 31 U.S.C. Â§ 5319
(2000 & Supp. I 2001) qualifies as Exemption 3 statute); Motion Picture
Ass'n of Am. v. United States Dep't of Justice, No. 80 Civ. 6612, slip
op. at 1 (S.D.N.Y. Oct. 6, 1981) (ruling that 15 U.S.C. Â§ 1314(g) (2000)
is Exemption 3 statute).
26. See FOIA Post, "Supreme Court
Vacates and Remands in ATF Database Case" (posted 3/25/03) (discussing Supreme
Court's reaction to recently enacted statute that specifically prohibits
ATF from using appropriated funds to comply with any FOIA request seeking
certain firearms database records).
27. Pub. L. No. 100-460, Â§ 630, 102 Stat. 2229 (1988)
(making appropriations for programs for Fiscal Year 1989).
28. 960 F.2d 105, 108 (9th Cir. 1992) (dictum) (opining
on whether section 630 is "explicit" enough to qualify as Exemption 3 statute).
29. 287 F.3d 628 (7th Cir.), amended upon denial
of reh'g en banc (7th Cir.), cert. granted, 537 U.S. 1018 (2002),
vacated sub nom. 537 U.S. 1229) (2003)).
30. Pub. L. No. 108-7, Â§ 644, 117 Stat. 11 (2003).
31. See id. (providing that "[n]o funds
appropriated under this Act or any other Act with respect to any fiscal
year shall be available to take any action based upon any provision of 5
32. See Dep't of Justice v. City of Chicago,
537 U.S. 1229, 1229 (2003); see also FOIA Post, "Supreme
Court Vacates and Remands in ATF Database Case" (posted 3/25/03) (discussing
extraordinary litigation development); cf. Consolidated Appropriations
Act, Pub. L. No. 108-199, 118 Stat. 3 (2004) (further enactment likewise
prohibiting use of appropriated funds to disclose same type of ATF firearms
database information as at issue in City of Chicago litigation).
33. See City of New York v. Beretta U.S.A.
Corp., No. 00-CV-3641, slip op. at 22 n.15 (E.D.N.Y. May 19, 2004) (noting,
in civil discovery context, history and current status of statutory appropriations
issue in related City of Chicago litigation).
34. Pub. L. No. 108-136, Â§ 922, 117 Stat. 1392 (2003).
35. 50 U.S.C. Â§ 403-3 (2000).
36. Pub. L. No. 108-136, Â§ 922 (specifying further
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
37. 50 U.S.C. Â§ 431 (2000).
38. See FOIA Update, Vol. V, No. 4,
at 1-2 (noting that an underlying principle of the Central Intelligence
Agency Information Act of 1984 is to free "the CIA of the burden of processing
FOIA requests for" records that "would be almost entirely withholdable anyway,
upon application of the FOIA's national security exemption, Exemption 1,
together with the CIA's other statutory nondisclosure provisions under Exemption
3"); see also FOIA Post, "FOIA Amended by Intelligence Authorization
Act" (posted 12/23/02) (commenting on similar rationale underlying 2002
FOIA amendment, which made exception to FOIA's "any person" rule in certain
circumstances for requests received by "elements of the intelligence community").
39. See 50 U.S.C.A. Â§ 403-5e (West 2003 &
Supp. 2003) (authorizing special "operational files" treatment for National
Reconnaissance Office); 50 U.S.C.A. Â§ 403-5c (West 2003) (same for National
Geospatial-Intelligence Agency); see also FOIA Post, "Agencies
Rely on Wide Range of Exemption 3 Statutes" (posted 3/25/03).
40. See Wash. Post Co. v. HHS, 2 Gov't
Disclosure Serv. (P-H) Â¶ 81,047, at 81,127 n.2 (D.D.C. Dec. 4, 1980)
("[A]n Executive Order . . . is clearly inadequate to support
reliance on Exemption 3."), rev'd on other grounds, 690 F.2d 252
(D.C. Cir. 1982); cf. Wis. Project, 317 F.3d at 284-85 (determining
that agency properly withheld records in reliance upon legislative scheme
in which executive order operated to maintain effectiveness of intermittently
lapsed Exemption 3 statute); Times Publ'g, 236 F.3d at 1291-92 (same).
41. See Founding Church of Scientology v.
Bell, 603 F.2d 945, 952 (D.C. Cir. 1979) (holding that Rule 26(c) of
Federal Rules of Civil Procedure, governing issuance of protective orders,
is not statute under Exemption 3).
42. See, e.g., Fund for Constitutional Gov't
v. Nat'l Archives & Records Serv., 656 F.2d 856, 867 (D.C. Cir.
1981) (concluding that Rule 6(e) of Federal Rules of Criminal Procedure,
regulating disclosure of matters occurring before grand jury, satisfies
Exemption 3's "statute" requirement because it was specially amended by
Congress in 1977); Berry v. Dep't of Justice, 612 F. Supp. 45, 49
(D. Ariz. 1985) (determining that Rule 32 of Federal Rules of Criminal Procedure,
governing disclosure of presentence reports, is "statute" for Exemption
3 purposes because it was affirmatively enacted into law by Congress in
1975); cf. Lykins v. United States Dep't of Justice, 725 F.2d 1455,
1462 n.7 (1984) (holding that standing "order" of court has no nondisclosure
effect under FOIA).
43. Cf. Whitney v. Robertson, 124 U.S.
190, 194 (1887) ("By the Constitution a treaty is placed on the same footing,
and made of like obligation, with an act of legislation."); Pub. Citizen
v. Office of the United States Trade Representative, 804 F. Supp. 385,
388 (D.D.C. 1992) (stating that trade agreement not ratified by Senate does
not have status of "statutory law" and thus does not qualify under Exemption
3), appeal dismissed per stipulation, No. 93-5008 (D.C. Cir. Jan.
44. See CIA v. Sims, 471 U.S. 159, 167
(1985); A. Michael's Piano, Inc. v. FTC, 18 F.3d 138, 143 (2d Cir.
1994); Aronson v. IRS, 973 F.2d 962, 964 (1st Cir. 1992); Cal-Almond,
960 F.2d at 108; Fund for Constitutional Gov't, 656 F.2d at 868;
Pub. Citizen Health Research Group, 704 F.2d at 1284; Goland v.
CIA, 607 F.2d 339, 350 (D.C. Cir. 1978).
45. See A. Michael's Piano, 18 F.3d
at 143-45 (interpreting section 21(f) of FTC Act, 15 U.S.C. Â§ 57b-2(f)
(2000)); see also Aronson, 973 F.2d at 965-66 (giving deference
to agency interpretation of withholding statute); Anderson v. HHS,
907 F.2d 936, 950-51 (10th Cir. 1990) (interpreting section 360j(c) of Medical
Devices Act, 21 U.S.C. Â§ 360j(c) (2000), and section 301(j) of Food,
Drug, and Cosmetic Act, 21 U.S.C. Â§ 331(j) (2000)); Grasso v. IRS,
785 F.2d 70, 74-75 (5th Cir. 1984) (interpreting section 6103 of Internal
Revenue Code, 26 U.S.C.A. Â§ 6103 (2002 & West Supp. 2003)).
46. See Anderson, 907 F.2d at 951; Grasso,
785 F.2d at 75; Currie, 704 F.2d 523, 526-27 (11th Cir. 1983); DeLorme
Publ'g Co. v. NOAA, 917 F. Supp. 867, 870-71 (D. Me. 1996).
47. See Church of Scientology Int'l v. United
States Dep't of Justice, 30 F.3d 224, 235 (1st Cir. 1994); Aronson,
973 F.2d at 967; White v. IRS, 707 F.2d 897, 900-01 (6th Cir. 1983)
(holding that agency determination that documents in dispute fell within
withholding provision of Internal Revenue Code was "neither arbitrary nor
capricious"). But see DeLorme Publ'g, 917 F. Supp. at 871 (rejecting
a deferential review when the statute at issue "ha[d] broad application
and ha[d] been implemented by more than a dozen agencies").
48. A. Michael's Piano, 18 F.3d at 144.
50. See Aronson, 973 F.2d at 967; Ass'n
of Retired R.R. Workers v. United States R.R. Ret. Bd., 830 F.2d 331,
335 (D.C. Cir. 1987). But see Long, 742 F.2d at 1181; DeLorme
Publ'g, 917 F. Supp. at 871.
51. See Aronson, 973 F.2d at 966; Ass'n
of Retired R.R. Workers, 830 F.2d at 336.
52. Cf. Roley v. Assistant Attorney Gen.,
No. 89-2774, slip op. at 8 (D.D.C. Mar. 9, 1990) (determining that court's
grant of permission to disclose grand jury records pursuant to Rule 6(e)(3)(C)(i)
of Federal Rules of Criminal Procedure does not govern disposition of same
records in FOIA suit); Garside v. Webster, 733 F. Supp. 1142, 1147
(S.D. Ohio 1989) (same). But cf. DeLorme Publ'g, 917 F. Supp.
at 871 (proceeding de novo when statute at issue was administered by numerous
federal agencies); Palmer v. Derwinski, No. 91-197, slip op. at 3-4
(E.D. Ky. June 10, 1992) (holding that disclosure order issued by court
pursuant to 38 U.S.C. Â§ 7332(b) (2000) requires VA to disclose
records under FOIA).
53. Simpson v. Dep't of State, No. 79-0674,
2 Gov't Disclosure Serv. (P-H) Â¶ 81,280, at 81,798 (D.D.C. Apr. 30,
1981) (concluding on remand that Exemption 3 authorized withholding of State
Department's entire "Biographic Register" of federal employees involved
in foreign policy activities, even though court of appeals had already ruled
in Simpson v. Vance, 648 F.2d 10, 17 (D.C. Cir. 1980), that Exemption
6 did not cover all such information).
54. Fed. R. Crim. P. 6(e).
55. See Fund for Constitutional Gov't v.
Nat'l Archives & Records Serv., 656 F.2d 856, 867 (D.C. Cir. 1981);
see also Tel. Publ'g Co. v. United States Dep't of Justice,
No. 95-521-M, slip op. at 16-18, 26-27 (D.N.H. Aug. 31, 1998) (citing Exemption
3 together with Rule 6(e) as a partial basis for protecting information
related to a grand jury, including correspondence between the U.S. ttorney's
Office and nongovernment attorneys pertaining to the grand jury, even where
the correspondence was not shown to the grand jury and evidence notebooks
were created by local police at the direction of an Assistant United States
Attorney, because disclosure would "probably
too much about evidence presented to the grand jury"); Greenberg v. United
States Dep't of Treasury, 10 F. Supp. 2d 3, 27-28 (D.D.C. 1998) (permitting
agency to withhold transcripts of conversations that were taped during course
of FBI investigation and were subsequently subpoenaed by grand jury); McQueen
v. United States, 179 F.R.D. 522, 528-30 (S.D. Tex. May 6, 1998) (holding
that all matters occurring before grand jury are protected even if records
predate grand jury investigation), aff'd, 176 F.3d 478 (5th Cir.
1999) (unpublished table decision).
56. Iglesias v. CIA, 525 F. Supp. 547, 556
57. 656 F.2d at 869 (quoting SEC v. Dresser Indus.,
Inc., 628 F.2d 1368, 1382 (D.C. Cir. 1980)); see also United
States v. Kearse, 30 Fed. Appx. 85 (4th Cir. 2002) (per curiam) (holding
that Rule 6(e) prohibits FOIA disclosure of grand jury transcripts); Rugiero
v. United States Dep't of Justice, 257 F.3d 534, 549 (6th Cir. 2001)
(protecting grand jury transcripts, exhibits, and identities of witnesses),
cert. denied, 534 U.S. 1134 (2002); Church of Scientology Int'l
v. United States Dep't of Justice, 30 F.3d 224, 235 (1st Cir. 1994)
("[D]ocuments identified as grand jury exhibits, and whose contents are
testimonial in nature or otherwise directly associated with the grand jury
process, such as affidavits and deposition transcripts, ordinarily may be
withheld simply on the basis of their status as exhibits."); McDonnell
v. United States, 4 F.3d 1227, 1246 (3d Cir. 1993) (protecting "[i]nformation
and records presented to a federal grand jury . . . names
of individuals subpoenaed
of testimony"); Silets v. United States Dep't of Justice, 945 F.2d
227, 230 (7th Cir. 1991) (concluding that "identity of witness before a
grand jury and discussion of that witness' testimony" is exempt from disclosure,
as it "falls squarely within" Rule 6(e)'s prohibition); Raulerson v.
Ashcroft, 271 F. Supp. 2d 17, 24 (D.D.C. 2002) (finding that the "names
of individuals subpoenaed to testify before the grand jury and the names
of their employers clearly are matters 'occurring before the grand jury'"
(quoting Fund for Constitutional Gov't, 656 F.2d at 869)); Germosen
v. Cox, No. 98 Civ. 1294, 1999 WL 1021559, at *13 (S.D.N.Y. Nov. 9,
1999) (holding that identities of grand jury witnesses are protected by
Rule 6(e)), appeal dismissed for failure to prosecute, No. 00-6041
(2d Cir. Sept. 12, 2000); Peralta v. United States Attorney's Office,
69 F. Supp. 2d 21, 33 (D.D.C. 1999) (determining that Rule 6(e) prohibited
the release of identities of grand jury witnesses and descriptions of information
obtained by federal grand jury subpoenas); Anderson v. United States
Dep't of Justice, No. 95-1880, 1999 U.S. Dist. LEXIS 5048, at *8 (D.D.C.
Apr. 12, 1999) (finding local police department line-up record properly
withheld as it contained Assistant United States Attorney's handwritten
notes regarding witness reactions to viewing individuals in line-up and,
if released, would reveal "identities of witnesses or jurors"); Willis
v. FBI, No. 96-1455, slip op. at 6 (D.D.C. Feb. 14, 1998) (declaring
that a grand jury transcript was properly withheld even though "at one time
[the requester's] counsel may have had a right of access to portions of
the transcript for [witness impeachment purposes]"), aff'd in part &
remanded on other grounds, 194 F.3d 175 (D.C. Cir. 1999) (unpublished
table decision); Twist v. Reno, No. 95-258, 1997 U.S. Dist. LEXIS
8981, at *5 n.1 (D.D.C. May 12, 1997) (holding that agency properly withheld
information that would reveal strategy or direction of grand jury investigation
even though requester was previously on investigation team and had seen
some of withheld information), summary affirmance granted, No. 97-5192,
1997 WL 811736 (D.C. Cir. Dec. 9, 1997); Jimenez v. FBI, 938 F. Supp.
21, 28 (D.D.C. 1996) (protecting notes written by Assistant United States
Attorney in preparation for grand jury proceeding, records of third parties
provided in course of proceeding, and notes concerning witnesses who testified);
Canning v. United States Dep't of Justice, No. 92-0463, slip op.
at 6 (D.D.C. June 26, 1995) (protecting "material that, while not directly
mentioning the grand jury," nevertheless mentions witness names and describes
witness testimony); Helmsley v. United States Dep't of Justice, No.
90-2413, slip op. at 4-6 (D.D.C. Sept. 25, 1992) (finding that Rule 6(e)
protected records identifying witnesses who testified or were consulted,
documents and evidence not presented but obtained through grand jury subpoenas,
immunity applications and orders, exhibit lists, reports and memoranda discussing
evidence, correspondence regarding compliance with subpoenas, documents,
notes, and research relating to litigation regarding compliance with subpoenas,
and letters among lawyers discussing grand jury proceedings).
58. 823 F.2d 574 (D.C. Cir. 1987).
59. Id. at 584; see Wash. Post Co.
v. United States Dep't of Justice, 863 F.2d 96, 100 (D.C. Cir. 1988)
(finding that record that was created before grand jury was impanelled did
not independently reveal anything about grand jury and thus was not covered
by Rule 6(e) -- even though record was subpoenaed by grand jury, was available
to jurors, and was used by prosecutors to question grand jury witnesses);
see also John Doe Corp. v. John Doe Agency, 850 F.2d 105,
109 (2d Cir. 1988) ("A document that is otherwise available to the public
does not become confidential simply because it is before a grand jury."),
rev'd on other grounds, 493 U.S. 146 (1989); Germosen, 1999
WL 1021559, at *13 (stating that Rule 6(e) imposes "no requirement that
materials actually be presented to the grand jury in order to fall within
the rule's scope"); Tel. Publ'g, No. 95-521-M, slip op. at 11 (D.N.H.
Aug. 31, 1998) ("Exemption 3 . . . does not protect
all information that is found in grand jury files since mere exposure to
a grand jury does not, by itself, immunize information from disclosure.");
Isley v. Executive Office for United States Attorneys, No. 96-0123,
slip op. at 2-4 (D.D.C. Mar. 27, 1997) (ordering agency to provide further
justification for withholding "transcripts, subpoenas, information provided
in response to a grand jury subpoena, and information identifying who testified
before a grand jury"), appeal dismissed, 203 F.3d 52 (D.C. Cir. 1997)
(unpublished table decision); Butler v. United States Dep't of Justice,
No. 86-2255, 1994 WL 55621, at *8 (D.D.C. Feb. 3, 1994) (holding descriptions
of documents subpoenaed by grand jury not protected under Rule 6(e)), appeal
dismissed, No. 94-5078 (D.C. Cir. Sept. 8, 1994); Astley v. Lawson,
No. 89-2806, 1991 WL 7162, at *6 (D.D.C. Jan. 11, 1991) (ordering release
of records even though requester might have been able to deduce purpose
for which they were subpoenaed, because records on their face did not reveal
grand jury's "inner workings").
60. Senate of P.R., 823 F.2d at 584; see
also Tel. Publ'g, No. 95-521-M, slip op. at 11 (D.N.H. Aug. 31,
1998) (stating that agencies must show nexus between disclosure of withheld
information and impermissible revelation of grand jury matters to invoke
protection of Exemption 3); Burke v. DEA, No. 96-1739, slip op. at
7 (D.D.C. Mar. 30, 1998) (determining that agency established nexus by showing
that release of name of subpoenaed individual and information relating to
subpoenaed insurance claims would reveal information about inner workings
of grand jury); Greenberg, 10 F. Supp. 2d at 27-28 (finding that
a nexus was established because releasing transcripts of taped conversations
would show "the direction or path the Grand Jury was taking"); Karu v.
United States Dep't of Justice, No. 86-771, slip op. at 4-5 (D.D.C.
Dec. 1, 1987) (finding that a nexus was established because "[w]ere this
information to be released the very substance of the grand jury proceedings
would be discernible"). But see Isley, No. 96-0123, slip op.
at 4 (D.D.C. Mar. 27, 1997) (concluding that agency "has not sufficiently
linked the exemption to the contents of the withheld documents"); LaRouche
v. United States Dep't of Justice, No. 90-2753, 1993 WL 388601, at *5
(D.D.C. June 25, 1993) (holding that letter prepared by government attorney
discussing upcoming grand jury proceedings did not reveal grand jury's "inner
61. 863 F.2d at 100.
62. See, e.g., Maydak v. United States Dep't
of Justice, 254 F. Supp. 2d 23, 42 (D.D.C. 2003) (stating that court
could not determine whether agency properly invoked Exemption 3 when neither
Vaughn Index nor agency's declaration described specific records
withheld); Hronek v. DEA, 16 F. Supp. 2d 1260, 1276 (D. Or. 1998)
(requiring agency to resubmit Vaughn Index and explain how disclosure
of subpoenas would "compromise the integrity of the grand jury process"),
aff'd, 7 Fed. Appx. 591 (9th Cir. 2001); LaRouche v. United States
Dep't of Treasury, No. 91-1655, slip op. at 19-20 (D.D.C. May 22, 1998)
(rejecting agency's withholding of entire category of documents and requiring
agency to submit Vaughn Index sufficient to show that disclosure
would reveal protected aspect of grand jury proceeding), summary judgment
granted in part (D.D.C. Mar. 31, 2000) (holding that agency affidavit
ultimately demonstrated nexus between disclosure and revelation of secret
aspects of grand jury for most records withheld under 6(e), but ordering
release where agency failed to demonstrate nexus); Kronberg v. United
States Dep't of Justice, 875 F. Supp. 861, 867-68 (D.D.C. 1995) (ordering
grand jury material released where prior disclosure was made to defense
counsel and where government had not met burden of demonstrating that disclosure
would reveal inner workings of grand jury); Linn, 1995 WL 417810,
at *7 ("[N]owhere in its affidavit does the DEA specifically link this exemption
to the contents of the documents being withheld," but rather "merely states
that it applied this exemption to withhold information that names witnesses
and recounts testimony given to a federal grand jury."); Canning v. United
States Dep't of Justice, 919 F. Supp. 451, 454-55 (D.D.C. 1994) (requiring
government to produce affidavits "showing a basis for knowledge that the
information came from grand jury" and explain how material is protected
under Rule 6(e)); cf. Lion Raisins Inc. v. USDA, 354 F.3d
1072, 1082 n.10 (9th Cir. 2004) (lambasting counsel for not viewing the
sealed documents at issue, because the court found "it perplexing that the
government would choose to assign counsel to defend its position on appeal
(both in its brief and at oral argument) who is totally unfamiliar with
(and, presumably, denied access to) the facts upon which the government
bases its claim to the law enforcement exemption") (Exemption 7(A) case
incorrectly constrained administratively by grand jury secrecy); Ashton
v. VA, No. 99-6018, 1999 U.S. App. LEXIS 22957, at *3 (2d Cir. Sept.
3, 1999) (finding agency affidavit sufficient because it showed that withheld
records revealed "confidential materials from grand jury proceedings" and
that records were within scope of Rule 6(e) and Exemption 3); Local 32B-32J,
Serv. Employees Int'l Union, AFL-CIO v. GSA, No. 97 Civ. 8509, 1998
WL 726000, at *7 (S.D.N.Y. Oct. 15, 1998) (concluding that agency's "sealed
declaration makes clear the existence of a grand jury investigation and
sufficiently describes the relation of the requested materials to such investigation"
and that agency properly withheld grand jury exhibits and identities of
grand jury witnesses); Sousa v. United States Dep't of Justice, No.
95-375, 1997 U.S. Dist. LEXIS 9010, at **10-11 (D.D.C. June 19, 1997) (holding
that supplemental Vaughn Index adequately demonstrated that disclosure
of grand jury witness subpoenas, Assistant United States Attorney's handwritten
notes discussing content of witness testimony, evidence used, and strategies
would reveal protected aspects of grand jury investigation).
63. Canning v. United States Dep't of Justice,
No. 92-0463, 1995 WL 1073434, at *2 (D.D.C. Feb. 26, 1995) (finding that
FOIA officers are "among those with approved access to grand jury material"
and that agency's FOIA officer therefore properly reviewed withheld documents
in case at hand (citing United States Dep't of Justice, Fed. Grand Jury
Practice 173 (Jan. 1993))); see also United States Dep't of Justice,
Fed. Grand Jury Practice 57 (Aug. 2000) (recognizing that grand jury
information properly may be disclosed to "administrative personnel who need
to determine the applicability of Rule 6(e)'s disclosure prohibition for
purposes of responding to requests for records under [the FOIA]"); FOIA
Update, Vol. XIX, No. 3, at 2 (advising agencies of same in order to
put any question on point entirely to rest); cf. Lion Raisins,
354 F.3d at 1082 & nn.10 & 12 (concluding correctly that agency
incorrectly was not prepared to present its Exemption 7(A) defense because
counsel evidently was "denied access to
and even admitted to not knowing "what reasons justify the invocation of
the law enforcement exemption," due to overly strict grand jury secrecy).
64. 30 F.3d at 235-36.
65. Id. at 236.
66. Id. at 235 n.15 (dictum); cf. Rugiero
v. United States Dep't of Justice, 257 F.3d at 549 (holding that "documents
identified as grand jury exhibits or containing testimony or other material
directly associated with grand jury proceedings fall within [Exemption 3]"
and "[d]ocuments created for reasons independent of a grand jury investigation
do not," without acknowledging that many grand jury exhibits are created
for "reasons independent" of a grand jury); Foster v. United States Dep't
of Justice, 933 F. Supp. 687, 691 (E.D. Mich. 1996) (protecting "final
prosecution report" when "[e]ach page containe[d] a 'grand jury' secrecy
67. See Senate of P.R., 823 F.2d at
584; see also Crooker v. IRS, No. 94-0755, 1995 WL 430605,
at *9 n.2 (D.D.C. Apr. 27, 1995) (observing that withholding documents on
basis of grand jury exhibit labels "appears to be the type of per se
withholding of grand jury material expressly rejected by the D.C. Circuit").
68. 5 U.S.C. app. 4 Â§ 107 (2000).
69. Meyerhoff v. EPA, 958 F.2d 1498, 1502 (9th
Cir. 1992) (construing 1978 version of statute).
70. 5 U.S.C.A. app. 4 Â§ 205 (repealed as of Jan.
71. Church of Scientology of Tex. v. IRS, 816
F. Supp. 1138, 1152 (W.D. Tex. 1993), appeal dismissed per stipulation,
No. 93-8431 (5th Cir. Oct. 21, 1993).
72. 455 U.S. 345 (1982).
73. 13 U.S.C. Â§Â§ 8(b), 9(a) (2000).
74. 455 U.S. at 355.
75. 42 U.S.C. Â§Â§ 2000e-5(b), 2000e-8(e)
76. See Frito-Lay v. EEOC, 964 F. Supp.
236, 239-43 (W.D. Ky. 1997); Crump v. EEOC, No. 3:97-0275, slip op.
at 5-6 (M.D. Tenn. May 30, 1997) (magistrate's recommendation), adopted
(M.D. Tenn. June 18, 1997); Am. Centennial Ins. Co. v. EEOC, 722
F. Supp. 180, 183 (D.N.J. 1989); cf. EEOC v. City of Milwaukee,
54 F. Supp. 885, 893 (E.D. Wis. 1999) (noting that "any member of the public
making a FOIA request" for materials at issue in this non-FOIA dispute "will
be denied access, because Exemption 3 incorporates confidentiality provisions
of sections 706(b) and 709(e) of Title VII).
77. 31 U.S.C. Â§ 5319 (2000 & Supp. I
78. See Linn, 1995 WL 631847, at *30;
Small v. IRS, 820 F. Supp. 163, 166 (D.N.J. 1992); Vennes v. IRS,
No. 5-88-36, slip op. at 6 (D. Minn. Oct. 14, 1988), aff'd, 890 F.2d
419 (8th Cir. 1989) (unpublished table decision).
79. 22 U.S.C. Â§ 3104(c) (2000).
80. See Young Conservative Found. v. United
States Dep't of Commerce, No. 85-3982, 1987 WL 9244, at **3-4 (D.D.C.
Mar. 25, 1987).
81. 15 U.S.C. Â§ 2055(a)(2) (2000).
82. See Mulloy v. Consumer Prod. Safety
Comm'n, No. C-2-85-645, 1985 U.S. Dist. LEXIS 17194, at **2-5 (S.D.
Ohio Aug. 2, 1985).
83. 15 U.S.C. Â§ 18a(h) (2000).
84. See Lieberman v. FTC, 771 F.2d 32,
39, n.14 (2d Cir. 1985) (dictum) (explaining that premerger information
"could not be disclosed under FOIA; Congress made that intention crystal
clear") (non-FOIA case); Mattox v. FTC, 752 F.2d 116, 122 (5th Cir.
1985) (observing that premerger information is exempt from disclosure under
the FOIA -- government agencies are not to be "clearing house[s] for the
facts" concerning mergers) (non-FOIA case).
85. 5 U.S.C. Â§ 1314(g) (2000) (covering
"[a]ny documentary material, answers to written interrogatories, or transcripts
of oral testimony provided pursuant to any demand issued under this chapter").
86. See Motion Picture Ass'n of Am. v. United
States Dep't of Justice, No. 80 Civ. 6612, slip op. at 1 (S.D.N.Y. Oct.
6, 1981) (protecting transcripts of oral testimony under Exemption 3).
87. 28 U.S.C. Â§ 592(e) (2000) (expired as of
June 30, 1999).
88. Cf. Pub. Citizen v. Dep't of Justice,
No. 82-2909 (D.D.C. May 18, 1983) (construing 1978 version of statute).
89. 49 U.S.C. Â§ 1114(c) (2000).
90. McGilvra v. NTSB, 840 F. Supp. 100, 102
(D. Colo. 1993).
91. 42 U.S.C. Â§ 405(r) (2000).
92. Int'l Diatomite Producers Ass'n v. United States
Soc. Sec. Admin., No. C-92-1634, 1993 WL 137286, at *3 (N.D. Cal. Apr.
28, 1993), appeal dismissed per stipulation, No. 93-16204 (9th Cir.
Oct. 27, 1993).
93. 5 U.S.C. Â§ 552b(c)(3) (2000).
94. 42 U.S.C. Â§ 2286 (2000).
95. Natural Res. Def. Council v. Def. Nuclear Facilities
Safety Bd., 969 F.2d 1248, 1249 (D.C. Cir. 1992).
96. 28 U.S.C. Â§ 534 (2000).
97. See Reporters Comm. for Freedom of the
Press v. United States Dep't of Justice, 816 F.2d 730, 736 n.9 (D.C.
Cir.), modified on other grounds, 831 F.2d 1124 (D.C. Cir. 1987),
rev'd on other grounds, 489 U.S. 749 (1989); see also Dayton
Newspapers, Inc. v. FBI, No. C-3-85-815, slip op. at 6 (S.D. Ohio Feb.
98. 15 U.S.C. Â§ 2055(b)(1) (2000).
99. See Consumer Prod. Safety Comm'n v.
GTE Sylvania, Inc., 447 U.S. 102, 122 (1980).
100. 15 U.S.C. Â§ 2055(b)(5) (2000).
101. See Reliance Elec. Co. v. Consumer
Prod. Safety Comm'n, No. 87-1478, slip op. at 16-17 (D.D.C. Sept. 19,
102. 19 U.S.C. Â§ 1677f (2000).
103. See Mudge Rose Guthrie Alexander &
Ferdon v. United States Int'l Trade Comm'n, 846 F.2d 1527, 1530 (D.C.
104. 45 U.S.C. Â§ 362(d) (2000).
105. See Ass'n of Retired R.R. Workers
v. United States R.R. Ret. Bd., 830 F.2d 331, 334 (D.C. Cir. 1987);
Nat'l Ass'n of Retired & Veteran Ry. Employees v. R.R. Ret. Bd.,
No. 87-117, slip op. at 5 (N.D. Ohio Feb. 20, 1991).
106. 39 U.S.C. Â§ 410(c)(2) (2000).
107. Wickwire Gavin, P.C. v. USPS, 356 F.3d
588, 589, 597 (4th Cir. 2004) (holding that agency properly withheld "quantity
and pricing" information related to contract for which requester was unsuccessful
bidder); Robinett v. USPS, No. 02-1094, 2002 WL 1728582, at *5 (E.D.
La. July 24, 2002) (finding that the agency properly withheld job-applicant
information under 39 U.S.C. Â§ 410(c)(2) (2000) because it falls within
the agency's regulatory definition of "information of a commercial nature");
Weres Corp. v. USPS, No. 94-1984, slip op. at 3-6 (D.D.C. Sept. 23,
1996) (finding that agency properly withheld "unit and total prices" submitted
by unsuccessful offerors for government contracts); cf. Piper
& Marbury, L.L.P. v. USPS, No. 99-2383, 2001 WL 214217, at **3-5
(D.D.C. Mar. 6, 2001) (magistrate's recommendation) (finding that even if
requested contract contained some "commercial information" protectible under
39 U.S.C. Â§ 410(c)(2) (2000), agency could not withhold entire contract
under Exemption 3), adopted (D.D.C. Mar. 30, 2001), reconsideration
denied (D.D.C. Feb. 28, 2002); Nat'l W. Life Ins. Co. v. United States,
512 F. Supp. 454, 459, 462 (N.D. Tex. 1980) (concluding that list of names
and duty stations of postal employees did not qualify as "commercial information"
within scope of 39 U.S.C. Â§ 410(c)(2)).
108. 50 U.S.C. app. Â§ 2411(c)(1) (2000)
(statute which most recently expired on August 20, 2001, as required by
the Export Administration Modification and Clarification Act of 2000, Pub.
L. No. 106-508, 114 Stat. 2360 (2000), but has been re-extended several
times in past, in substantially identical form).
109. See Wis. Project on Nuclear Arms Control
v. United States Dep't of Commerce, 317 F.3d 275, 284 (2003) (ruling
that agency properly withheld export license application information under
"comprehensive legislative scheme" through which expired Exemption 3 statute,
Export Administration Act, 50 U.S.C. app. Â§ 2411(c)(1), continued
in operation by virtue of non-Exemption 3 statute that authorized the President
to issue executive orders maintaining effectiveness of Act during repeated
periods of lapse); Times Publ'g Co. v. United States Dep't of Commerce,
236 F.3d 1286, 1289-92 (11th Cir. 2001) (same); Armstrong v. Executive
Office of the President, No. 89-142, slip op. at 30-35 (D.D.C. July
28, 1995) (same); Afr. Fund v. Mosbacher, No. 92 Civ. 289, 1993 WL
183736, at *6 (S.D.N.Y. May 26, 1993) (holding that Export Administration
Act protection was properly applied to agency denial made after Act expired
and before subsequent re-extension); see also Lessner v. United
States Dep't of Commerce, 827 F.2d 1333, 1336-37 (9th Cir. 1987) (construing
statute as effective in 1987); cf. Council for a Livable World
v. United States Dep't of State, No. 96-1807, slip op. at 11 (D.D.C.
Jan. 21, 1998) (finding that section 12(c)(1) of Export Administration Act,
as specifically incorporated by reference into Arms Export Control Act,
22 U.S.C. Â§ 2778(e) (2000), is Exemption 3 statute that protects information
concerning export license applications -- without acknowledging that Export
Administration Act had lapsed), amended (D.D.C. Nov. 23, 1998).
110. 13 U.S.C. Â§ 301(g) (2000).
111. See Afr. Fund, 1993 WL 183736,
at *5; Young Conservative Found. v. United States Dep't of Commerce,
No. 85-3982, 1987 WL 9244, at **2-3 (D.D.C. Mar. 25, 1987).
112. Pub. L. No. 107-56, Â§ 901, 115 Stat. 272
(2001) (to be codified as 50 U.S.C. Â§ 403-3(c)(7)) (redesignating former
paragraph (6) as paragraph (7)).
113. See CIA v. Sims, 471 U.S. 159,
167 (1985); see also Assassination Archives & Research Ctr.
v. CIA, 334 F.3d 55, 60-61 (D.C. Cir. 2003) (affirming that release
of CIA's five-volume compendium of biographical information on "Cuban Personalities"
in its entirety would reveal intelligence sources and methods despite plaintiff's
allegation that CIA previously released some of same information); Students
Against Genocide v. Dep't of State, 257 F.3d 828, 835-36 (D.C. Cir.
2001) (finding that CIA properly withheld photographs purportedly taken
by U.S. spy planes and satellites, including photographs that were shown
to members of United Nations Security Council by U.S. Ambassador to U.N.);
Maynard v. CIA, 986 F.2d 547, 554 (1st Cir. 1993) (stating that under
Â§ 403(d)(3) it is responsibility of Director of CIA to determine whether
sources or methods should be disclosed); Krikorian v. Dep't of State,
984 F.2d 461, 465 (D.C. Cir. 1993) (same); Fitzgibbon v. CIA, 911
F.2d 755, 761 (D.C. Cir. 1990) (same); Aftergood v. CIA, No. 02-1146
(D.D.C. Feb. 8, 2004) (finding that CIA properly withheld aggregate fiscal-year
intelligence budget information); Hogan v. Huff, No. 00-Civ-6753,
2002 WL 1359722, at *9 (S.D.N.Y. June 21, 2002) (ruling that the CIA properly
withheld information from investigative reports on the death of the requester's
father because "disclosure of the information could subsequently put both
informants and their families in a dangerous position"); Halpern v. FBI,
No. 94-CV-365, slip op. at 16-17 (W.D.N.Y. Aug. 31, 2001) (magistrate's
recommendation) (protecting locations of foreign CIA stations), adopted
(W.D.N.Y. Oct. 12, 2001); Schrecker v. United States Dep't of Justice,
74 F. Supp. 2d 26, 32-33 (D.D.C. 1999) (ruling that CIA properly refused
to disclose identity of deceased intelligence sources, allegedly of historical
significance, and noting that privacy concerns are not relevant), aff'd
in relevant part, rev'd & remanded on other grounds, 254 F.3d 162
(D.C. Cir. 2001); Aftergood v. CIA, No. 98-2107, 1999 U.S. Dist.
LEXIS 18135, at **12-15 (D.D.C. Nov. 12, 1999) (permitting CIA to withhold
total budget request for all intelligence and intelligence-related activities
where Director of Central Intelligence determined that disclosure would
"tend to reveal" sources and methods); Blazy v. Tenet, 979 F. Supp.
10, 23-24 (D.D.C. 1997) (protecting intelligence sources and methods located
in requester's personnel file), summary affirmance granted, No. 97-5330
(D.C. Cir. May 12, 1998); Andrade v. CIA, No. 95-1215, 1997 WL 527347,
at **3-5 (D.D.C. Aug. 18, 1997) (holding intelligence methods used in assessing
employee fitness protectible), appeal voluntarily dismissed, No.
97-5251 (D.C. Cir. Dec. 18, 1997); Campbell v. United States Dep't of
Justice, No. 89-CV-3016, 1996 WL 554511, at *7 (D.D.C. Sept. 19, 1996)
("The CIA director is to be afforded 'great deference' by courts determining
the propriety of nondisclosure of intelligence sources under 50 U.S.C. Â§ 403
(2000)" (quoting CIA v. Sims, 471 U.S. 159, 179 (1985))), rev'd
& remanded on other grounds, 164 F.3d 20 (D.C. Cir. 1998).
114. See, e.g., Wheeler v. CIA, 271
F. Supp. 2d 132, 140-41 (D.D.C. 2003) (finding that CIA properly refused
to confirm or deny existence of records concerning requester); Frugone
v. CIA, 169 F.3d 772, 774-75 (D.C. Cir. 1999) (finding that CIA properly
refused to confirm or deny existence of records concerning plaintiff's alleged
employment relationship with CIA despite allegation that another government
agency seemed to confirm plaintiff's status as former CIA employee); Minier
v. CIA, 88 F.3d 796, 801 (9th Cir. 1996) (finding that agency properly
refused to confirm or deny existence of records concerning deceased person's
alleged employment relationship with CIA); Hunt v. CIA, 981 F.2d
1116, 1118 (9th Cir. 1992) (upholding agency's "Glomar" response to request
on foreign national because acknowledgment of existence of any responsive
record would reveal sources and methods); Knight v. CIA, 872 F.2d
660, 663 (5th Cir. 1989) (same); Kelly v. CIA, No. 00-2498, slip
op. at 20 (D.D.C. Aug. 8, 2002) (finding that CIA properly refused to confirm
or deny existence of any record reflecting any covert CIA relationship with
UCLA); Arabian Shield Dev. Co. v. CIA, No. 3-98-CV-0624, 1999 WL
118796, at *4 (N.D. Tex. Feb. 26, 1999) (deferring to the CIA Director's
determination that to confirm or deny the existence of any agency record
pertaining to contract negotiations between a U.S. oil company and a foreign
government would compromise intelligence sources and methods, while noting
that the "Director [of Central Intelligence]'s determination in this regard
is almost unassailable" and that "[a]bsent evidence of bad faith, the [CIA]'s
determination 'is beyond the purview of the courts'") (quoting Knight
v. CIA, 872 F.2d at 664); Earth Pledge Found. v. CIA, 988 F.
Supp. 623, 627 (S.D.N.Y. 1996) (finding agency's "Glomar" response proper
because acknowledgment of records would present "danger of revealing sources"),
aff'd per curiam, 128 F.3d 788 (2d Cir. 1997).
115. 50 U.S.C. Â§ 403g (2000).
116. See, e.g., Minier, 88 F.3d at
801; Roman v. Dailey, No. 97-1164, 1998 U.S. Dist. LEXIS 6708, at
**10-11 (D.D.C. May 11, 1998), appeal dismissed, No. 99-5083, 1999
WL 506683 (D.C. Cir. Jun. 3, 1999); Blazy, 979 F. Supp. at 23-24;
Earth Pledge Found., 988 F. Supp. at 627-28; Campbell, 1996
WL 554511, at *6; Kronisch v. United States, No. 83-2458, 1995 WL
303625, at **4-6 (S.D.N.Y. May 18, 1995), aff'd on other grounds,
150 F.3d 112 (2d Cir. 1998); Hunsberger v. CIA, No. 92-2186, slip
op. at 3 (D.D.C. Apr. 5, 1995); Rothschild v. CIA, No. 91-1314, 1992
WL 71393, at *2 (D.D.C. Mar. 25, 1992); Lawyers Comm. for Human Rights
v. INS, 721 F. Supp. 552, 567 (S.D.N.Y. 1989); Pfeiffer v. CIA,
721 F. Supp. 337, 341-42 (D.D.C. 1989).
117. 50 U.S.C. Â§ 402 note (2000).
118. See Founding Church of Scientology
v. NSA, 610 F.2d 824, 828 (D.C. Cir. 1979); Hayden v. NSA, 452
F. Supp. 247, 252 (D.D.C. 1978), aff'd, 608 F.2d 1381 (D.C. Cir.
1979); see also 10 U.S.C. Â§ 130b (2000) (authorizing withholding
of personally identifying information regarding any member of armed forces
or employee of Department of Defense or of Coast Guard who is assigned to
unit that is overseas, "sensitive," or "routinely deployable").
120. Winter v. NSA, 569 F. Supp. 545, 548
(S.D. Cal. 1983); see also Gilmore v. NSA, No. C 92-3646,
1993 U.S. Dist. LEXIS 7694, at **26-27 (N.D. Cal. May 3, 1993) (finding
information on cryptography currently used by NSA to be "integrally related"
to function and activity of intelligence gathering and thus protected).
121. 42 U.S.C. Â§ 2162 (2000).
122. 42 U.S.C. Â§ 2014(y) (2000) (defining "restricted
data"); cf. FOIA Post, "Guidance on Homeland Security
Information Issued" (posted 3/21/02) (reprinting Memorandum from Assistant
to the President and Chief of Staff to the Heads of Executive Departments
and Agencies (Mar. 19, 2002) (directing agencies to safeguard government
information "that could reasonably be expected to assist in the development
or use of weapons of mass destruction, including information about the current
locations of stockpiles of nuclear materials that could be exploited for
use in such weapons")).
123. See Meeropol v. Smith, No. 75-1121,
slip op. at 53-55 (D.D.C. Feb. 29, 1984), aff'd in relevant part &
remanded in part sub nom. Meeropol v. Meese, 790 F.2d 942 (D.C.
Cir. 1986). But see Gen. Elec. Co. v. NRC, 750 F.2d 1394,
1401 (7th Cir. 1984) (concluding that a provision of the Atomic Energy Act,
42 U.S.C. Â§ 2133(b)(3) (2000), stating that technical information furnished
by license applicants was to be used "only for the purposes of the common
defense and security and to protect the health and safety of the public"
lacked sufficient specificity to qualify as Exemption 3 statute).
124. 38 U.S.C. Â§ 7332 (2000).
125. See Palmer v. Derwinski, No. 91-197,
slip op. at 3-4 (E.D. Ky. June 10, 1992).
126. See 38 U.S.C. Â§ 5705(a) (2000).
127. See Schulte & Sun-Sentinel Co.
v. VA, No. 86-6251, slip op. at 3-4 (S.D. Fla. Feb. 2, 1996) (allowing
agency to withhold mortality statistics); see also Dayton Newspapers,
Inc. v. Dep't of the Air Force, 107 F. Supp. 2d 912, 917 (S.D. Ohio
1999) (finding that 10 U.S.C. Â§ 1102 (2000), the equivalent medical
quality-assurance statute for DOD, qualifies as an Exemption 3 statute protecting
"all 'medical quality assurance records,' regardless of whether the
contents of such records originated within or outside of a medical quality
128. 18 U.S.C. Â§ 5038 (2000).
129. See McDonnell v. United States,
4 F.3d 1227, 1251 (3d Cir. 1993) (holding that state juvenile delinquency
records fall outside scope of statute).
130. 16 U.S.C. Â§ 5937 (2000).
131. See Sw. Ctr. for Biological Diversity
v. USDA, 314 F.3d 1060, 1061 (9th Cir. 2002) (approving withholding
of information concerning specific nesting locations of northern goshawks);
Hornbostel v. United States Dep't of the Interior, 305 F. Supp. 2d
21, 30 (D.D.C. 2003) (concluding that agency properly withheld information
regarding "rare or commercially valuable" resources because resources were
located within "public land" boundaries); Pease v. United States Dep't
of Interior, No. 1:99CV113, slip op. at 2, 4 (D. Vt. Sept. 17, 1999)
(finding that the agency properly withheld "certain information pertaining
to the location, tracking and/or radio frequencies of grizzly bears" in
the Yellowstone National Park ecosystem); cf. Maricopa Audubon
Soc'y v. United States Forest Serv., 108 F.3d 1082, 1089 (9th Cir. 1997)
(refusing to protect wildlife maps showing endangered species locations
pursuant to Exemption 2); Audubon Soc'y v. United States Forest Serv.,
104 F.3d 1201, 1204 (10th Cir. 1997) (same); FOIA Post, "Agencies
Rely on Wide Range of Exemption 3 Statutes" (posted 12/16/03) (discussing
National Park Omnibus Management Act of 1998, and citing Southwest Center
for Biological Diversity); FOIA Post, "Supreme Court Rules
in Exemption 5 Case" (posted 4/4/01) (noting possible need for additional
nondisclosure legislation to protect confidential communications between
Department of the Interior and Indian tribes); FOIA Update, Vol.
XVI, No. 3, at 2 (describing difficulty of protecting endangered species
locations under Exemption 2 prior to legislative enactment qualifying under
132. 35 U.S.C. Â§ 122 (2000).
133. Irons & Sears v. Dann, 606 F.2d 1215,
1220 (D.C. Cir. 1979); accord Leeds v. Quigg, 720 F. Supp.
193, 194 (D.D.C. 1989), summary affirmance granted, No. 89-5062,
1989 WL 386474 (D.C. Cir. Oct. 24, 1989).
134. 5 U.S.C. Â§ 7114(b)(4) (2000).
135. See Dubin v. Dep't of the Treasury,
555 F. Supp. 408, 412 (N.D. Ga. 1981), aff'd, 697 F.2d 1093 (11th
Cir. 1983) (unpublished table decision); NTEU v. OPM, No. 76-695,
slip op. at 4 (D.D.C. July 9, 1979).
136. 22 U.S.C. Â§ 1461-1a (2000).
137. See Essential Info., Inc. v. USIA,
134 F.3d 1165, 1168 (D.C. Cir. 1998) (holding that Smith-Mundt Act qualifies
as nondisclosure statute even though "it does not prohibit all disclosure
of records but only disclosure to persons in this country").
138. See Foreign Affairs Reform and Restructuring
Act of 1998, 22 U.S.C. Â§Â§ 6501-6617 (2000) (abolishing USIA (22 U.S.C.
Â§ 6531), transferring USIA functions to Department of State (22 U.S.C.
Â§ 6532), and applying Smith-Mundt Act to USIA functions that were transferred
to Department of State (22 U.S.C. Â§ 6552(b))).
139. 7 U.S.C. Â§ 12 (2000).
140. See Hunt v. Commodity Futures Trading
Comm'n, 484 F. Supp. 47, 49 (D.D.C. 1979).
141. 49 U.S.C. Â§ 40119 (2000), amended by
Pub. L. No. 107-71, 115 Stat. 597, 603 (2001) (transferring statutory powers
from Administrator of FAA to Under Secretary of Transportation for Security,
and expanding criteria for nondisclosure).
142. Pub. Citizen, Inc. v. FAA, 988 F.2d 186,
194 (D.C. Cir. 1993).
143. 10 U.S.C. Â§ 130 (2000).
144. See Chenkin v. Dep't of the Army,
No. 93-494, 1994 U.S. Dist. LEXIS 20907, at *8 (E.D. Pa. Jan. 14, 1994),
aff'd, 61 F.3d 894 (3d Cir. 1995) (unpublished table decision); Colonial
Trading Corp. v. Dep't of the Navy, 735 F. Supp. 429, 431 (D.D.C. 1990);
see also Am. Friends Serv. Comm. v. DOD, No. 83-4916, 1986
WL 10659, at *4 (E.D. Pa. Sept. 25, 1986) (applying statute where only dispute
was over coverage in relation to particular data at issue), rev'd on
other grounds, 831 F.2d 441 (3d Cir. 1987).
145. 15 U.S.C. Â§ 3710a(c)(7) (2000).
146. See Pub. Citizen Health Research Group
v. NIH, 209 F. Supp. 2d 37, 43, 51 (D.D.C. 2002) (deciding that NIH
properly withheld royalty rate information under 15 U.S.C. Â§ 3710a(c)(7)(A)
(2000), and noting that scope of Act's protection is "coterminous" with
that of Exemption 4); DeLorme Publ'g Co. v. NOAA, 917 F. Supp. 867,
871 (D. Me. 1996) (finding that 15 U.S.C. Â§ 3710a(c)(7)(A) qualifies
as Exemption 3 statute), appeal dismissed per stipulation, No. 96-1601
(1st Cir. July 8, 1996).
147. 15 U.S.C. Â§ 3710a(c)(7)(B) (2000).
148. 8 U.S.C. Â§ 1202(f) (2000 & Supp.
149. DeLaurentiis v. Haig, 686 F.2d 192, 194
(3d Cir. 1982); accord Smith v. Dep't of Justice, No. 81-CV-813,
1983 U.S. Dist. LEXIS 10878, at **13-14 (N.D.N.Y. Dec. 13, 1983).
150. Medina-Hincapie v. Dep't of State, 700
F.2d 737, 741-42 (D.C. Cir. 1983); accord Marulanda v. United
States Dep't of State, No. 93-1327, slip op. at 4-6 (D.D.C. Jan. 31,
1996) (protecting documents relating to denial of plaintiff's visa even
when agency previously released certain of those records that were determined
not to breach confidentiality provision).
151. See 18 U.S.C. Â§Â§ 2510-2520
152. See Sinito v. United States Dep't
of Justice, No. 87-0814, slip op. at 12-14 (D.D.C. July 11, 2000) (implying
that 18 U.S.C. Â§ 2518(8)(b) (2000), which requires that Title III applications
and orders be kept under court seal, is a subpart (A) statute in observing
that "[t]he FBI has no discretion
III information that is under court seal"), aff'd, 22 Fed. Appx.
1 (D.C. Cir. 2001); Gonzalez v. United States Dep't of Justice, No.
88-913, 1988 WL 120841, at *2 (D.D.C. Oct. 25, 1988) (holding that statute
codified at 18 U.S.C. Â§ 2511(2)(a)(ii) (2000), which regulates disclosure
of existence of wiretap intercepts, meets requirements of subpart (A));
Docal v. Bennsinger, 543 F. Supp. 38, 43-44 (M.D. Pa. 1981) (relying
upon entire statutory scheme of 18 U.S.C. Â§Â§ 2510-2520 but not distinguishing
between Exemption 3 subparts); Carroll v. United States Dep't of Justice,
No. 76-2038, slip op. at 2-3 (D.D.C. May 26, 1978) (holding that 18 U.S.C.
Â§ 2518(8), which regulates disclosure of contents of wiretap intercepts,
meets requirements of subpart (A)).
153. 929 F.2d 729 (D.C. Cir. 1991).
154. Id. at 733 (quoting 5 U.S.C. Â§ 552(b)(3)
(2000)); see also Willis v. FBI, No. 98-5071, 1999 WL 236891,
at *1 (D.C. Cir. Mar. 19, 1999) (finding that FBI properly withheld two
electronic surveillance tapes under Title III and Exemption 3); Payne
v. United States Dep't of Justice, No. 96-30840, slip op. at 5-6 (5th
Cir. July 11, 1997) (holding that tape recordings obtained pursuant to Title
III "fall squarely" within scope of Exemption 3); Manna v. United States
Dep't of Justice, No. 92-1840, slip op. at 3-4 (D.N.J. Aug. 25, 1993)
(determining that analysis of audiotapes and identities of individuals conversing
on tapes obtained pursuant to Title III is protected under Exemption 3),
aff'd on other grounds, 51 F.3d 1158 (3d Cir. 1995); Manchester
v. DEA, 823 F. Supp. 1259, 1267 (E.D. Pa. 1993) (ruling that wiretap
applications and derivative information fall within broad purview of Title
III), aff'd, 40 F.3d 1240 (3d Cir. 1994) (unpublished table decision);
cf. Smith v. United States Dep't of Justice, 251 F.3d 1047,
1049 (D.C. Cir. 2001) (finding that audiotapes of telephone calls made by
inmate on monitored prison telephone were not "interceptions" within scope
of Title III and thus were improperly withheld); Cottone v. Reno,
193 F.3d 550, 554-56 (D.C. Cir. 1999) (noting that wiretapped recordings
obtained pursuant to Title III ordinarily are exempt from disclosure under
Exemption 3, but holding that Exemption 3 protection was waived when FOIA
requester precisely identified specific tapes that had been played in open
court by prosecution as evidence during criminal trial).
155. (2000 & Supp. I 2001); see Riley
v. FBI, No. 00-2378, 2002 U.S. Dist. LEXIS 2632, at **5-6 (D.D.C. Feb.
11, 2002) (protecting sealed pen register applications and orders); Manna
v. United States Dep't of Justice, 815 F. Supp. 798, 812 (D.N.J. 1993)
(same), aff'd on other grounds, 51 F.3d 1158 (3d Cir. 1995).
156. See 18 U.S.C. Â§ 3123(d); see
generally Morgan v. United States Dep't of Justice, 923 F.2d
195, 197 (D.C. Cir. 1991) ("[T]he proper test for determining whether an
agency improperly withholds records under seal is whether the seal, like
an injunction, prohibits the agency from disclosing the records.").
157. 18 U.S.C. Â§ 3123(d).
158. McFarland v. DEA, No. 94-620, slip op.
at 4 (D. Colo. Jan. 3, 1995) (mistakenly protecting under Exemption 3 material
"acquired through the use of a pen register").
159. 26 U.S.C. Â§ 6103 (2000).
160. See, e.g., Church of Scientology v.
IRS, 484 U.S. 9, 15 (1987); Aronson v. IRS, 973 F.2d 962, 964-65
(1st Cir. 1992) (finding that IRS lawfully exercised discretion to withhold
street addresses pursuant to 26 U.S.C. Â§ 6103(m)(1)); Long v. IRS,
891 F.2d 222, 224 (9th Cir. 1989) (holding that deletion of taxpayers' identification
does not alter confidentiality of section 6103 information); DeSalvo
v. IRS, 861 F.2d 1217, 1221 (10th Cir. 1988); Grasso v. IRS,
785 F.2d 70, 77 (3d Cir. 1986); Long v. IRS, 742 F.2d 1173, 1179
(9th Cir. 1984); Ryan v. ATF, 715 F.2d 644, 645 (D.C. Cir. 1983);
Currie v. IRS, 704 F.2d 523, 527-28 (11th Cir. 1983); Willamette
Indus. v. United States, 689 F.2d 865, 867 (9th Cir. 1982); Barney
v. IRS, 618 F.2d 1268, 1274 n.15 (8th Cir. 1980) (dictum); Chamberlain
v. Kurtz, 589 F.2d 827, 843 (5th Cir. 1979).
161. See Stebbins v. Sullivan, No.
90-5361, 1992 WL 174542, at *1 (D.C. Cir. July 22, 1992); DeSalvo,
861 F.2d at 1221 n.4; Linsteadt v. IRS, 729 F.2d 998, 1000 (5th Cir.
1984); Fruehauf Corp. v. IRS, 566 F.2d 574, 578 n.6 (6th Cir. 1977);
see also Landmark Legal Found. v. IRS, 267 F.3d 1132, 1135-37
(D.C. Cir. 2001) (determining that "return information" includes identities
of tax-exempt organizations as well as information pertaining to third-party
requests for audits or investigations of tax-exempt organizations); Stanbury
Law Firm v. IRS, 221 F.3d 1059, 1062 (8th Cir. 2000) (ruling that names
of contributors to public charity constitute tax return information and
may not be disclosed); Lehrfeld v. Richardson, 132 F.3d 1463, 1467
(D.C. Cir. 1998) (protecting third-party "return information" submitted
in support of application for tax-exempt status); Tax Analysts v. IRS,
117 F.3d 607, 611-16 (D.C. Cir. 1997) (holding that while Field Service
Advice Memoranda contain some protectible "return information," any "legal
analyses" contained therein do not constitute "return information" properly
withholdable under Exemption 3); Kamman v. IRS, 56 F.3d 46, 49 (9th
Cir. 1995) (holding appraisal of jewelry seized from third-party taxpayer
and auctioned to satisfy tax liability was not "return information"); Judicial
Watch, Inc. v. Dep't of Justice, No. 02-64, 2004 WL 404498, at *6 (D.D.C.
Mar. 3, 2004) (ruling that records related to bankruptcy of Enron Corporation
constitute "return information"); Hodge v. IRS, No. 03-0269, 2003
U.S. Dist. LEXIS 17083, at **1-3 (D.D.C. Aug. 28, 2003) (ruling that agency
withholding of third-party tax return information was proper despite claim
that third party used plaintiff's social security number on third party's
tax return); Mays v. IRS, No. 02-1191, 2003 WL 21518343, at *2 (D.
Minn. May 21, 2003) (prohibiting disclosure of former bank's tax return
information absent evidence of bank's corporate dissolution); Andrews
v. IRS, No. 02-0973, 2003 U.S. Dist. LEXIS 10226, at **4-6 (D.D.C. Apr.
29, 2003) (approving agency's withholding of corporation's tax return information
on basis that corporation had merged rather than dissolved); Davis, Cowell
& Bowe, LLP v. Soc. Sec. Admin., No. 01-4021, 2002 WL 1034058, at
**5-7, 9 (N.D. Cal. May 16, 2002) (characterizing information on W-2 and
W-3 wage forms, which were sent to and used by Social Security Administration
for non-tax-related purposes before being sent to IRS, as confidential tax
return information), vacated as moot, 281 F. Supp. 2d 1154 (N.D.
Cal. 2003) (finding that Social Security Administration's declaration that
it did not possess records that plaintiff requested rendered action moot);
McGinley v. United States Dep't of Treasury, No. 01-09493, 2002 WL
1058115, at **3-4 (C.D. Cal. Apr. 15, 2002) (refusing to allow IRS employee
access to record regarding contract between IRS and third party concerning
corporate taxpayer's alleged audit, because such record constituted tax
return information); Chourre v. IRS, 203 F. Supp. 2d 1196, 1200-02
(W.D. Wash. 2002) (finding that IRS properly redacted records containing
information about plaintiff and third-party taxpayers); Leveto v. IRS,
No. 98-285E, 2001 U.S. Dist. LEXIS 5791, at **21-22 (W.D. Pa. Apr. 10, 2001)
(ruling that IRS properly withheld information identifying third-party taxpayers);
Helmon v. IRS, No. 3-00-CV-0809-M, 2000 U.S. Dist. LEXIS 17628, at
**9-11 (N.D. Tex. Nov. 6, 2000) (magistrate's recommendation) (protecting
third-party "return information" despite requester's claim that she was
administrator of estate of third party and thus was legally entitled to
requested information, because proof of her relationship to deceased did
not satisfy standard established by IRS regulations), adopted (N.D.
Tex. Nov. 30, 2000); Wewee v. IRS, No. 99-475, slip op. at 14-15
(D. Ariz. Oct. 13, 2000) (magistrate's recommendation) (concluding that
agency properly withheld third-party tax return information, including individual
and business taxpayer names, income amounts, and deductions), adopted
(D. Ariz. Feb. 13, 2001); Allnutt v. United States Dep't of Justice,
No. Y98-1722, 2000 U.S. Dist. LEXIS 4060, at **37-38 (D. Md. Mar. 6, 2000)
(magistrate's recommendation) (recognizing that section 6103 prohibits
disclosure of third-party taxpayer information even though IRS collected
such information as part of investigation of requester), adopted in pertinent
part, 99 F. Supp. 2d 673, 675 (D. Md. 2000), renewed motion for summary
judgment granted, 2000 WL 852455 (D. Md. Oct. 23, 2000), aff'd sub
nom. Allnut v. Handler, 8 Fed. Appx. 225 (4th Cir. 2001) (per
curiam); Murphy v. IRS, 79 F. Supp. 2d 1180, 1183-84 (D. Haw. 1999)
(upholding agency decision to withhold third-party return information despite
requester's argument that he had "material interest" in information), appeal
dismissed, No. 99-17325 (9th Cir. Apr. 17, 2000); Tax Analysts v.
IRS, 53 F. Supp. 2d 449, 451-53 (D.D.C. 1999) (declaring that "closing
agreements" releasing tax-exempt organizations from tax liability constitute
"tax return information" within scope of section 6103(a), and that
because they are distinct from "applications" or tax-exempt status, which
are open to public inspection under section 6104, they may not be disclosed);
Barmes v. IRS, 60 F. Supp. 2d 896, 900-01 (S.D. Ind. 1998) (protecting
"transcripts containing a variety of tax data concerning third party taxpayers");
Buckner v. IRS, 25 F. Supp. 2d 893, 899-900 (N.D. Ind. 1998) (ruling
that information properly was withheld where disclosure would reveal identity
of third-party taxpayer); Crooker v. IRS, No. 94-0755, 1995 WL 430605,
at *3 (D.D.C. Apr. 27, 1995) (requiring IRS to confirm that redactions were
not taken for aliases plaintiff used in his tax-refund scheme); Gray,
Plant, Mooty, Mooty & Bennett v. IRS, No. 4-90-210, 1990 U.S. Dist.
LEXIS 18799, at *8 (D. Minn. Dec. 18, 1990) (ordering public report released
because it does not qualify as "return information" as it does not include
data in form which can be associated with particular taxpayer), appeal
dismissed, No. 91-1630 (8th Cir. May 14, 1991). But see also
Ginsberg v. IRS, No. 96-2265, 1997 WL 882913, at *4 (M.D. Fla. Dec.
23, 1997) (magistrate's recommendation) (holding that the bulk of a legal
memorandum responding to a "Request for Technical Assistance" was not protectible
"return information" because the document formed "the operative body of
law found applicable to [the] taxpayers in this [case]"), adopted
(M.D. Fla. Jan. 27, 1998).
162. Tax Analysts v. IRS, 350 F.3d 100, 104
(D.C. Cir. 2003).
163. See McQueen v. United States,
264 F. Supp. 2d 502, 516 (S.D. Tex. 2003) (reasoning that the release of
plaintiff's records that "discussed specifics regarding the nature of the
IRS case against
federal tax administration); Carp v. IRS, No. 00-5992, 2002 WL 373448,
at *4 (D.N.J. Jan. 28, 2002) (finding that documents submitted by IRS in
support of search warrant application in a discontinued tax-fraud investigation
were return information that could not be released to subject of investigation
without impairing tax administration); Warren v. United States, No.
1:99CV1317, 2000 WL 1868950, at *6 (N.D. Ohio Oct. 31, 2000) (concluding
that release of return information to taxpayer would inhibit investigation
of taxpayer and impair tax administration); Youngblood v. Comm'r,
No. 2:99-CV-9253, 2000 WL 852449, at **9-10 (C.D. Cal. Mar. 6, 2000) (declaring
that criminal tax investigation report was properly withheld where IRS demonstrated
that disclosure would seriously impair federal tax administration); Anderson
v. United States Dep't of Treasury, No. 98-1112, 1999 WL 282784, at
**2-3 (W.D. Tenn. Mar. 24, 1999) (finding that disclosure to taxpayer of
IRS-prepared "checkspread" charting all checks written by taxpayer over
two-year period would seriously impair tax administration, notwithstanding
IRS agent's disclosure of "checkspread" to taxpayer during interview); Brooks
v. IRS, No. 96-6284, 1997 WL 718473, at *9 (E.D. Cal. Aug. 28, 1997)
(upholding protection of revenue agent's notes because release "would permit
Plaintiff to ascertain the extent of [IRS's] knowledge and predict the direction
of [its] examination"); Gibbs Int'l, Inc. v. IRS, No. 7:96-996-13,
slip op. at 1 (D.S.C. Oct. 8, 1996) (stating that "disclosure of the documents
would chill future cooperation with foreign government treaty partners"),
aff'd, 129 F.3d 116 (4th Cir. 1997) (unpublished table decision);
Holbrook v. IRS, 914 F. Supp. 314, 316-17 (S.D. Iowa 1996) (holding
IRS agent's handwritten notes protectible because disclosure would interfere
with enforcement proceedings and hence seriously impair tax administration);
Pully v. IRS, 939 F. Supp. 429, 434-36 (E.D. Va. 1996) (holding documents
relating to civil and criminal investigation of plaintiff protectible under
Exemptions 3 and 7(A)); Fritz v. IRS, 862 F. Supp. 234, 236 (W.D.
Wis. 1994) (finding that disclosure of name and address of purchaser of
seized automobile would impair tax administration as "people would be less
likely to purchase seized property" if their identities were revealed);
Rollins v. United States Dep't of Justice, No. Civ.A. H-90-3170,
1992 WL 12014526, at **5-6 (S.D. Tex. June 30, 1992) (stating that IRS memoranda
revealing scope and direction of investigation was properly withheld), aff'd,
No. 92-2575 (5th Cir. Oct. 27, 1993); Starkey v. IRS, No. 91-20040,
1991 WL 330895, at **2-3 (N.D. Cal. Dec. 6, 1991) (same), appeal dismissed,
No. 92-16162 (9th Cir. Nov. 23, 1992); Church of Scientology v. IRS,
No. 89-5894, 1991 U.S. Dist. LEXIS 3008, at *3 (C.D. Cal. Mar. 4, 1991)
(concluding that release of document referring to information obtainable
under various treaties would chill future cooperation of foreign governments
and tax-treaty partners); Casa Investors, Ltd. v. Gibbs, No. 88-2485,
1990 WL 180703, at *4 (D.D.C. Oct. 11, 1990) (holding that recommendation
for settlement of tax controversies prepared by low-level IRS employees
requires protection). But see LeMaine v. IRS, No. 89-2914,
1991 WL 322616, at *5 (D. Mass. Dec. 10, 1991) (deciding that release of
information commonly revealed to public in tax enforcement proceedings would
not "seriously impair Federal tax administration" overall).
164. See Gillin v. IRS, 980 F.2d 819,
822 (1st Cir. 1992) (per curiam) (holding that differential function scores,
used to identify returns most in need of examination or audit, are exempt
from disclosure); Long v. IRS, 891 F.2d at 224 (finding that computer
tapes used to develop discriminant function formulas protected); Coolman
v. IRS, No. 98-6149, 1999 WL 675319, at *5 (W.D. Mo. July 12, 1999)
(holding that section 6103(b)(2) permits IRS to withhold discriminant
function scores), aff'd, No. 99-3963, 1999 WL 1419039 (8th Cir. Dec.
6, 1999); Buckner, 25 F. Supp. 2d at 898-99 (concluding that discriminant
function scores were properly withheld under section 6103(b)(2), even
where scores were seventeen years old, because IRS continued to use scores
in determining whether to audit certain tax files); Wishart v. Comm'r,
No. 97-20614, 1998 WL 667638, at *6 (N.D. Cal. Aug. 6, 1998) (holding discriminant
function scores protectible), aff'd, 199 F.3d 1334 (9th Cir. 1999)
(unpublished table decision); Cujas v. IRS, No. 1:97CV00741, 1998
WL 419999, at *5 (M.D.N.C. Apr. 15, 1998) (recognizing that requester was
likely to disseminate information about his discriminant function score,
"thus making it easier for taxpayers to avoid an audit of their return[s]"),
aff'd, 162 F.3d 1154 (4th Cir. 1998) (unpublished table decision);
Inman v. Comm'r, 871 F. Supp. 1275, 1278 (E.D. Cal. 1994) (holding
discriminant function scores properly exempt); Lamb v. IRS, 871 F.
Supp. 301, 304 (E.D. Mich. 1994) (same); In re Church of Scientology
Flag Serv. Org./IRS FOIA Litig., No. 91-423, slip op. at 3-4 (M.D. Fla.
May 19, 1993) (determining that "tolerance criteria" and discriminant function
scores were properly withheld) (multidistrict litigation case); Small
v. IRS, 820 F. Supp. 163, 165-66 (D.N.J. 1992) (holding discriminant
function scores protected under both Exemption 3 and Exemption 7(E)); Ferguson
v. IRS, No. C-89-4048, 1990 U.S. Dist. LEXIS 15293, at *4 (N.D. Cal.
Oct. 31, 1990) (finding that standards and data used in selection and examination
of returns are exempt from disclosure where they would impair IRS enforcement);
see also 26 U.S.C. Â§ 6103(b)(2)(D) (2000) (providing that no
law "shall be construed to require the disclosure of standards used
if the Secretary [of the Treasury] determines that such disclosure will
165. See FOIA Update, Vol. IX, No.
2, at 5 (citing Stokwitz v. United States, 831 F.2d 893, 896-97 (9th
Cir. 1987), for proposition that disclosure of tax returns that Navy obtained
independently of IRS did not violate section 6103, and advising accordingly);
see also 26 U.S.C. Â§ 6103(b)(1)-(3) (2000) (defining "return,"
"return information," and "taxpayer return information" as information required
by, or provided for, Secretary of the Treasury under title 26 of United
166. 26 U.S.C. Â§ 6105 (2000).
167. See Tax Analysts v. IRS, 217 F.
Supp. 2d 23, 27-29 (D.D.C. 2002) (finding that IRS properly withheld international
tax convention records considered confidential under such conventions but
that otherwise would not be deemed confidential under laws of United States);
Tax Analysts v. IRS, 152 F. Supp. 2d 1, 12 (D.D.C. 2001) (protecting
record created by IRS to respond to foreign tax treaty partner's request
for legal advice, because it consisted of tax convention information that
treaty requires be kept confidential).
168. 481 F. Supp. 486, 490 (D.D.C. 1979).
169. See, e.g., Cheek v. IRS, 703 F.2d
271, 271 (7th Cir. 1983) (noting that section 6103 also "displaces"
Privacy Act of 1974, 5 U.S.C. Â§ 552a (2000)); King v. IRS, 688
F.2d 488, 495 (7th Cir. 1982); Kuzma v. IRS, No. 81-600E, slip op.
at 7-8 (W.D.N.Y. Dec. 31, 1984); see also White v. IRS, 707
F.2d 897, 900 (6th Cir. 1983) (indicating approval of Zale).
170. 5 U.S.C. Â§Â§ 701-706 (2000).
171. See Grasso, 785 F.2d at 73-74;
White, 707 F.2d at 900; Goldsborough v. IRS, No. Y-81-1939,
1984 WL 612, at **5-6 (D. Md. May 10, 1984); Green v. IRS, 556 F.
Supp. 79, 84 (N.D. Ind. 1982), aff'd, 734 F.2d 18 (7th Cir. 1984)
(unpublished table decision); Meyer v. Dep't of the Treasury, 82-2
U.S. Tax Cas. (CCH) Â¶ 9678, at 85,448 (W.D. Mich. Oct. 2, 1982); see
also Anderson v. United States Dep't of Treasury, 1999 WL 282784,
at *3 (acknowledging that if section 6103 pre-empted FOIA, then Administrative
Procedure Act standard of review, rather than more stringent FOIA standard
of review, would apply, but concluding that case did not require choice
because agency action satisfied more stringent FOIA standard).
172. Osborn v. IRS, 754 F.2d 195, 197-98 (6th
173. Currie, 704 F.2d at 528; accord
Grasso, 785 F.2d at 74; Long, 742 F.2d at 1181-82 (also rejecting
section 701 of Economic Recovery Tax Act, 26 U.S.C. Â§ 6103(b)(2) (2000),
as "displacement" statute); Linsteadt, 729 F.2d at 1001-02; see
also Britt v. IRS, 547 F. Supp. 808, 813 (D.D.C. 1982); Tigar
& Buffone v. CIA, 2 Gov't Disclosure Serv. (P-H) Â¶ 81,172,
at 81,461 (D.D.C. Feb. 23, 1981).
174. Church of Scientology of Cal. v. IRS,
792 F.2d 146, 148-50 (D.C. Cir. 1986).
175. 22 U.S.C. Â§ 2671 (2000); 31 U.S.C. Â§ 3526
176. See Wash. Post Co. v. United States
Dep't of State, 685 F.2d 698, 703-04 & n.9 (D.C. Cir. 1982), cert.
granted, 464 U.S. 812, vacated & remanded, 464 U.S. 979 (1983);
see also FOIA Update, Vol. IV, No. 4, at 11 (noting that Supreme
Court granted government's petition for certiorari, that Washington Post
Company then withdrew its FOIA request (which had procedural effect of nullifying
D.C. Circuit's decision), and that Supreme Court thus has never substantively
reviewed issue); cf. United States Dep't of Justice v. Tax Analysts,
492 U.S. 136, 153-54 (1989) (holding that FOIA, not 28 U.S.C. Â§ 1914
(2000), governs disclosure of court records in possession of government
agencies); Paisley v. CIA, 712 F.2d 686, 697 (D.C. Cir. 1983) (stating
that FOIA, not Speech or Debate Clause, is definitive word on disclosure
of information within government's possession); Church of Scientology
of Cal. v. USPS, 633 F.2d 1327, 1333 (9th Cir. 1980) (finding that postal
statute does not displace more detailed and later-enacted FOIA absent specific
indication of congressional intent to that effect).
177. 44 U.S.C. Â§ 2111 (2000).
178. Ricchio v. Kline, 773 F.2d 1389, 1395
(D.C. Cir. 1985); cf. Katz v. NARA, 68 F.3d 1438, 1440-42
(D.C. Cir. 1995) (holding certain President John F. Kennedy autopsy material
to be personal presidential papers not subject to FOIA).
179. See Church of Scientology, 792
F.2d at 149 (dictum).
180. See Ricchio, 773 F.2d at 1395;
cf. Essential Info., Inc. v. USIA, 134 F.3d 1165, 1169-70
(D.C. Cir. 1998) (Henderson, J., concurring) (suggesting displacement theory
as alternate ground for affirming agency withholding); Long, 742
F.2d at 1178 (holding that FOIA does not apply to IRS private letter rulings,
on basis that 26 U.S.C. Â§ 6110 (2000) provides exclusive means of access);
SDC Dev. Corp. v. Mathews, 542 F.2d 1116, 1120 (9th Cir. 1976) (reaching
"displacement-type" result for records governed by the National Library
of Medicine Act, a statute that later was repealed in 1993)); Jones v.
OSHA, No. 94-3225, 1995 WL 435320 at **3-4 (W.D. Mo. June 6, 1995) (requiring
release of employee complaints where Occupational Safety and Health Act,
29 U.S.C. Â§ 657(f)(1) (2000), provided for disclosure); Gersh &
Danielson v. EPA, 871 F. Supp. 407, 410 (D. Colo. 1994) (holding FOIA
exemptions inapplicable where in conflict with disclosure provisions of
Clean Water Act, 33 U.S.C. Â§ 1251(e) (2000)); FOIA Update, Vol. XI,
No. 3, at 7-8 n.32. But cf. Minier v. CIA, 88 F.3d 796, 802-03
(9th Cir. 1996) (finding that although the President John F. Kennedy Assassination
Records Collection Act, 44 U.S.C. Â§ 2107 note (2000), "requires agencies
to release broader amounts of information relating to the Kennedy assassination"
and "by its own terms, is an entirely separate scheme from the FOIA[,]"
there is no indication "that Congress intended the JFK Act to override the
CIA's ability to claim proper FOIA exemptions" (citing Assassination
Archives & Research Ctr. v. Dep't of Justice, 43 F.3d 1542, 1544
(D.C. Cir. 1995))); accord Winterstein v. United States Dep't
of Justice, 89 F. Supp. 2d 79, 82-83 (D.D.C. 2000) (ruling that existence
of Nazi War Crimes Disclosure Act, 5 U.S.C. Â§ 552 note (2000), is not relevant
to FOIA request for record pertaining to alleged Nazi war criminal except
to extent that Congress's exclusion of particular class of records from
Nazi War Crimes Disclosure Act was probative on question of whether Congress
considered withholding of record to be in public interest).
181. 5 U.S.C. Â§ 552(a)(4)(A)(vi) (2000).
182. See Uniform Freedom of Information Act
Fee Schedule and Guidelines, 52 Fed. Reg. 10,012 (1987) (implementing 5
U.S.C. Â§ 552(a)(4)(A)(vi)); see also, e.g., Wade v. United
States Dep't of Commerce, No. 96-0717, slip op. at 5-6 (D.D.C. Mar.
26, 1998) (recognizing that statute authorizing National Technical Information
Service (NTIS) to establish its own fee schedule, 15 U.S.C. Â§ 1153
(2000), supersedes standard FOIA fee provisions); FOIA Post, "NTIS:
An Available Means of Record Disclosure" (posted 8/30/02; supplemented 9/23/02)
(discussing operations of NTIS in relation to special FOIA fee provision).
183. 28 U.S.C. Â§ 534 (2000).
184. Reporters Comm. for Freedom of the Press
v. United States Dep't of Justice, 816 F.2d 730, 736 n.9 (D.C. Cir.),
modified on other grounds, 831 F.2d 1124 (D.C. Cir. 1987), rev'd
on other grounds, 489 U.S. 749 (1989).
185. 17 U.S.C. Â§ 705(b) (2000).
186. See St. Paul's Benevolent Educ. &
Missionary Inst. v. United States, 506 F. Supp. 822, 830 (N.D. Ga. 1980);
see also FOIA Update, Vol. IV, No. 4, at 3-5 ("OIP Guidance:
Copyrighted Materials and the FOIA") (emphasizing that Copyright Act should
not be treated as Exemption 3 statute and that copyrighted records should
be processed according to standards of Exemption 4 instead); accord
Gilmore v. United States Dep't of Energy, 4 F. Supp. 2d 912, 922-23
(N.D. Cal. 1998) (alternate holding) (protecting copyrighted computer software
pursuant to Exemption 4); FOIA Update, Vol. XVIII, No. 1, at 5-6
(cautioning agencies to "guard against the possibility that [Internet] dissemination
of [reading room records] might be regarded as copyright infringement" in
187. 21 U.S.C. Â§ 360j(h) (2000).
188. See Pub. Citizen Health Research Group
v. FDA, 704 F.2d 1280, 1286 (D.C. Cir. 1983).
189. 39 U.S.C. Â§ 410(c)(6) (2000).
190. See Church of Scientology v. USPS,
633 F.2d 1327, 1333 (9th Cir. 1980) (finding section 410(c)(6), which "permits
the Postal Service total discretion" regarding the disclosure of its investigatory
files, not to be an Exemption 3 statute because it provides "insufficient
specificity" to allow its removal from the "impermissible range of agency
discretion to make decisions rightfully belonging to the legislature").
191. 42 U.S.C. Â§ 1306 (2000).
192. See Robbins v. HHS, No. 95-cv-3258,
slip op. at 3-4 (N.D. Ga. Aug. 13, 1996), aff'd per curiam, 120 F.3d
275 (11th Cir. 1997) (unpublished table decision).
193. 7 U.S.C. Â§ 136h(d) (2000).
194. See Nw. Coalition for Alternatives
to Pesticides v. Browner, 941 F. Supp. 197, 201 (D.D.C. 1996). But
see Doe v. Veneman, No. 99-CV-335, slip op. at 24-25 (W.D. Tex.
Sept. 30, 2002) (holding that Federal Insecticide, Fungicide, and Rodenticide
Act is Exemption 3 statute) (reverse FOIA suit) (appeal pending)
195. 18 U.S.C. Â§ 4208 (2000) (repealed as to
offenses committed after November 1, 1987).
196. United States Dep't of Justice v. Julian,
486 U.S. 1, 9 (1988).
197. Id. at 11; see also FOIA Update,
Vol. IX, No. 2, at 1-2.
198. 18 U.S.C. Â§ 1905 (2000).
199. Chrysler Corp. v. Brown, 441 U.S. 281,
319 n.49 (1979).
200. See, e.g., Anderson v. HHS, 907
F.2d 936, 949 (10th Cir. 1990) ("[T]he broad and ill-defined wording of
Â§ 1905 fails to meet either of the requirements of Exemption 3.");
Acumenics Research & Tech. v. United States Dep't of Justice,
843 F.2d 800, 805 n.6, 806 (4th Cir. 1988) (finding "no basis" for business
submitter's argument that Exemption 3 and section 1905 prevent disclosure
of information that is outside scope of Exemption 4) (reverse FOIA suit);
Gen. Elec. Co. v. NRC, 750 F.2d 1394, 1401-02 (7th Cir. 1984) (same);
accord FOIA Update, Vol. VI, No. 3, at 3 ("OIP Guidance: Discretionary
Disclosure and Exemption 4"); see also 9 to 5 Org. for Women Office
Workers v. Bd. of Governors of the Fed. Reserve Sys., 721 F.2d 1, 12
(1st Cir. 1983) (specifically declining to address issue).
201. See CNA Fin. Corp. v. Donovan,
830 F.2d 1132, 1137-43 (D.C. Cir. 1987).
202. Id. at 1138.
203. Id. at 1139.
204. Id. at 1138.
205. Id. at 1139.
207. Id. at 1140-41.
208. Id. at 1141.
209. See FOIA Update, Vol. VII, No.
3, at 6 (advising that Trade Secrets Act should not be regarded as Exemption
210. See H.R. Rep. No. 94-880, at 23 (1976),
reprinted in 1976 U.S.C.C.A.N. 2191, 2205; see also Anderson,
907 F.2d at 949-50; Acumenics, 843 F.2d at 805 n.6; CNA, 830
F.2d at 1142 n.70; Gen. Elec., 750 F.2d at 1401-02; Gen. Dynamics
Corp. v. Marshall, 607 F.2d 234, 236-37 (8th Cir. 1979).
211. See Pub. L. No. 104-201, Â§ 821, 110 Stat.
2422 (containing parallel measures applicable to armed services and most
civilian agencies) (codified at 10 U.S.C. Â§ 2305(g) (2000) (encompassing
all agencies listed in 10 U.S.C. Â§ 2303 (2000), most notably NASA and
Coast Guard) and at 41 U.S.C. Â§ 253b(m) (2000)); cf. Ctr.
for Pub. Integrity v. Dep't of Energy, 191 F. Supp. 2d 187, 190-94 (D.D.C.
2002) (rejecting applicability of 41 U.S.C. Â§ 253b(m) to records relating
to bids for sale of government property, on grounds that that section applies
only to government procurement contracts, not to contracts for sale of government
213. Id.; see FOIA Update, Vol.
XVIII, No. 1, at 2 (describing provisions of 10 U.S.C. Â§ 2305(g) and 41
U.S.C. Â§ 253b(m)).
214. See id. (advising that the "underlying
legislative history" of these statutory provisions "makes clear that it
was Congress'[s] intent to alleviate the administrative burden imposed on
agencies faced with the task of processing FOIA requests for contractor
215. No. 02-2523, 2003 WL 23303294, at *5 (D.D.C.
Aug. 7, 2003) (finding proposals to be properly withheld from disclosure
because the statute "specifically prohibits the disclosure of 'a proposal
in the possession or control of an agency'").
216. 41 U.S.C. Â§ 423 (2000).
217. Legal & Safety Employer Research, Inc.
v. United States Dep't of the Army, No. Civ. S001748, 2001 WL 34098652,
at **3-4 (E.D. Cal. May 4, 2001) (dictum) (viewing statute as withholding
statute under Exemption 3, but rejecting Exemption 3 applicability only
because records at issue did not fall within scope of nondisclosure provision
in Procurement Integrity Act).
218. Pub. L. No. 104-106, Â§ 4304(a), 110 Stat.
219. Pikes Peak Family Hous., LLC v. United States,
40 Fed. Cl. 673, 680-81 (Cl. Ct. 1998) (construing the phrase "other than
as provided by law" in the Procurement Integrity Act as necessarily allowing
disclosures in civil discovery and noting that the statute does not apply
to legal disclosures but rather "is obviously directed at a situation in
which a present or former government procurement officer secretly leaks
information concerning a pending solicitation to an offeror participating
therein") (non-FOIA case); cf. CNA Fin. Corp. v. Donovan,
830 F.2d 1132, 1152, n.139 (D.C. Cir. 1987) (noting that comparable language
in Trade Secrets Act, 18 U.S.C. Â§ 1905, interrelates with FOIA so as
to render any statutory prohibition inapplicable because, under it, "FOIA
would provide legal authorization for" disclosure).
220. 5 U.S.C. Â§ 552a (2000).
221. See FOIA Update, Vol. V, No. 2,
at 8-9 (discussing legal position that subsequently was abandoned).
222. See, e.g., 5 U.S.C. Â§ 552a(j)(2).
223. See FOIA Update, Vol. IV, No.
2, at 3.
224. Provenzano v. United States Dep't of Justice,
717 F.2d 799 (3d Cir. 1983), cert. granted, 466 U.S. 926 (1984);
Shapiro v. DEA, 721 F.2d 215 (7th Cir. 1983), cert. granted,
466 U.S. 926 (1984).
225. Pub. L. No. 98-477, Â§ 2(c), 98 Stat. 2209,
2212 (1984) (amending what is now subsection (t) of Privacy Act).
226. United States Dep't of Justice v. Provenzano,
469 U.S. 14 (1984); FOIA Update, Vol. V, No. 4, at 4. But see
Hill v. Blevins, No. 92-0859, slip op. at 7 (M.D. Pa. Apr. 12, 1993)
(incorrectly holding that subsection (f)(3) of Privacy Act, which authorizes
agency to establish procedures for disclosure of medical and psychological
records, is "exempting" statute under FOIA), aff'd, 19 F.3d 643 (3d
Cir. 1994) (unpublished table decision).
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