Resources on the use of Exemption 3

When passing the Freedom of Information Act (FOIA) Congress recognized that there were other federal laws that provided protection for specific types of documents, either currently enacted or that could be passed in the future.  As a result, Congress created Exemption 3 of the FOIA which incorporates the protection afforded by other laws into the FOIA.  This category of information is the only one of the FOIA’s nine exemptions which expressly references other federal laws. Because the use of Exemption 3 relies on knowledge of various other federal laws, OIP has compiled two key resources to assist agencies in their administration of the FOIA and to increase public understanding of the use of Exemption 3.  These materials, located on the FOIA Resources page of our site, are:

• Statutes Found to Qualify Under Exemption 3 of the FOIA – Recently updated, this is a list of statutes that federal courts have found to qualify under Exemption 3.  Complied to assist agencies in properly processing FOIA requests and aid the public in understanding the scope of this exemption, the list provides the statute citation and name (if applicable), the type of information protected by the statute and the case citation for the case in which a court found that the statute qualified for use with Exemption 3.
• Statutes used in Annual FOIA Reports in conjunction with Exemption 3 of the FOIA – As the statutes used in connection with Exemption 3 and the frequency of use varies by agency, OIP compiles these charts which list the statutes used by all agencies as reported in their Annual FOIA Reports.  Collected from the reports for fiscal years 2010 and 2011, the charts provide the citation of the statute used, the type of information which is protected by the statute, and the agencies which cited the statute when using Exemption 3, as well as the number of times the statue was cited.

Information on the use of Exemption 3 by agencies prior to fiscal year 2010 and a more complete breakdown of the use of this exemption by any agency components is available in agency Annual FOIA Reports on the Reports page of our site (fiscal years 1998-2011) and on FOIA.gov (fiscal years 2008-2011). In order to ensure proper implementation of the FOIA and its exemptions, OIP has also issued guidance on the use of Exemption 3 as changes to the statute have occurred, most recently when Congress passed the OPEN FOIA Act of 2009.  This, and all guidance issued by OIP, is available on the OIP Guidance page of our site. Finally, if any agency has questions about the application of a federal statute in connection with Exemption 3, they can contact OIP’s FOIA Counselor Service at (202) 514-FOIA (3642) and one of OIP’s FOIA Counselors will be available to provide individualized guidance.