Congress Passes Amendment to Exemption 3 of the FOIA

For the second time in less than two years, Congress has passed an amendment to the Freedom of Information Act. Unlike the OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, which addressed a number of procedural issues impacting FOIA administration, but did not change any of the FOIA's nine exemptions, the more recent amendment to the FOIA provides for a substantive change to Exemption 3, which pertains to matters specifically exempted from release by statute. Entitled the "OPEN FOIA Act of 2009," the bill, enacted as section 564 of the Department of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83, 123 Stat. 2142, 2184, was signed by the President on October 28, 2009. See http://www.whitehouse.gov/the-press-office/statement-press-secretary-hr-2892-and-hr-3183. The amendment consists of only one section, summarized and discussed below. For the complete text of the DHS Appropriations Act which contains the OPEN FOIA Act of 2009, see http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h2892enr.txt.pdf.

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Prior to the enactment of the OPEN FOIA Act of 2009, Exemption 3 authorized the withholding of information "specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) require[d] that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishe[d] particular criteria for withholding or refer[red] to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3) (2006), amended by OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524. The OPEN FOIA Act of 2009 amended Exemption 3 by adding a new requirement that any statute "enacted after the date of enactment of the OPEN FOIA Act of 2009" must "specifically cite to this paragraph." Thus, the text of Exemption 3 now reads as follows: (b) This section does not apply to matters that are– . . . 118 Stat. at 2184. The OPEN FOIA Act of 2009 renumbered what used to be referred to as subparts (A) and (B) of Exemption 3, previously 5 U.S.C. § 552(b)(3)(A) and 5 U.S.C. § 552(b)(3)(B), to 5 U.S.C. § 552(b)(3)(A)(i) and 5 U.S.C. § 552(b)(3)(A)(ii), respectively, but did not change the substance of those requirements. The OPEN FOIA Act of 2009 then established an additional requirement that statutes enacted after the date of the enactment of the OPEN FOIA Act of 2009 must specifically cite to Exemption 3 of the FOIA in order to qualify under Exemption 3. The OPEN FOIA Act was enacted on October 28, 2009, and so this amendment impacts statutes enacted after that date. In order for any statute enacted after that date to qualify as an Exemption 3 statute, it must satisfy one of the traditional requirements, i.e. it must "require that the matters be withheld from the public in such a manner as to leave no discretion on the issue" or "establish particular criteria for withholding or refer to particular types of matters to be withheld." If enacted after October 28, 2009, the statute must meet one additional requirement; it must specifically cite to Exemption 3 in order to qualify as a withholding statute.

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Agencies are encouraged to contact OIP, through its FOIA Counselor service, with any questions regarding the implementation of the FOIA as amended by the OPEN FOIA Act of 2009.