The FOIA blog

Exemption 3 Transparency Legislation Introduced

Senators Patrick Leahy (D-VT) and John Cornyn (R-Tx) have introduced legislation aimed at making legislation more transparent when new Exemption 3 statutes are created.  This proposal was in last year's FOIA amendments passed by the Senate but was stripped out in the House version of the bill.  Sen. Leahy's press release can be found here.

Of course, and I know I sound like a broken record, but there is no mention of adequately funding FOIA Offices anywhere in Sen. Leahy's press release.

Postal Service Loses Ninth Circuit Exemption 3 Appeal

The Ninth Circuit Court of Appeals has handed the United States Postal Service ("USPS") a loss in its attempt to protect information about postal operations pursuant to FOIA Exemption 3.

Plaintiff Douglas Carlson sought the disclosure of the names, addresses, telephone numbers, regular business hours and final collection times for every United States Post Office.  This information was maintained on a database found on the USPS website.  The USPS denied the request, saying that pursuant to 39 U.S.C. Section 410(c)(2), and therefore exempt under FOIA exemption 3.

The United States District Court for the Northern California affirmed the USPS withholding.  However, on appeal, the Ninth Circuit Court of Appeals disagreed with the district court ruling. 

Initially, the Circuit Court found that 39 U.S.C. Section 410(c)(2) was an exemption 3 statute.  However, the court found that the information sought by Carlson was not the type of information withholdable under the provisions of the statute.  Thus, the case was reversed and remanded and Carlson was awarded costs for bringing the appeal.

9th Circuit Rules Vietnam Era PDB's Withholdable

The 9th Circuit Court of Appeals has ruled that the CIA properly withheld two Presidential Daily Bulletins ("PDB") pursuant to FOIA Exemption 3.  The Exemption 3 statute is the National Security Act, 50 U.S.C. Sections 403-1(i)(1) and 403g.

Plaintiff Larry Berman sought the PDB's provided to then President Lyndon B. Johnson on August 6, 1965 and April 2, 1968.  The CIA withheld the PDB's pursuant to FOIA exemptions 1, 3 and 5.  Following the filing of a lawsuit, the district court upheld the FOIA's withholding of the PDB's pursuant to FOIA exemptions 3 and 5.  Ultimately, the Appeals Court held that the PDB's, even though they are 42 and 39 years old, are withholdable pursuant to Exemption 3.

NSA Withholding of Secret Wiretap Information Upheld

Judge Ellen Segal Huvelle of the United States District Court for the District of Columbia has affirmed the National Security Agency's ("NSA") denial of certain information concerning its warrentless wiretap program requested by People for the American Way.

NSA withheld the material sought by People for the America Way pursuant to FOIA Exemptions 1, 3 and 5.  Judge Huvelle found that the NSA's declarations were sufficient to allow the NSA to use Exemptions 1 and 3 to withhod the material.  Because the material was withheld by those two exemptions, Judge Huvelle did not make a determination as to the use of Exemption 5 on the withheld material.

Recent Opinion Describes Intersection of Exemption 3 and Segregation

A recent decision by U.S. District Judge for the District of Columbia Richard J. Leon grants summary judgment for the State Department on documents it withheld pursuant to Exemption 3 of the FOIA.  Exemption 3 allows for the withholding of records specifically exempted by another statute, in this case, 8 U.S.C. Section 1202(f).  However, the FOIA's requirement that all segregable information be released often conflicts with the use of Exemption 3 by the Government.  The Court discusses this friction and gives a clear and concise explanation on how agencies must show that information, even that which may be covered by Exemption 3, is not segregable.  After discussing this issue, the Court finds that the State Department met the requirement (on its second attempt to do so), and could withhold the disputed information.