St. Mary's Law Journal


The Freedom of Information Act permits requestors access to government information unless an exemption applies. Exemption (b)(3)(B) permits the government to protect information if there is a specific reference to a FOIA exemption in the withholding statute. Congress created this new requirement in 2009 in order to remove decision making power from administrative agencies and courts and reserve the power to disclose or withhold information with the legislative branch. This exemption poses problems to courts when there is a clear intent to protect information in the withholding statute without a clear reference to Exemption (b)(3)(B). As a result, courts have issued inconsistent holdings regarding the protection or disclosure of information. Broadly, some courts have held that the withholding statute must contain a reference to FOIA Exemption 3 and adhere to the strict requirements of Exemption (b)(3)(B). This approach, however, lies in direct conflict with legislative entrenchment—the notion that a previous legislature may not bind a future legislative body known. Contrasted with the strict approach, other courts have used various interpretative tools to circumvent the requirements of Exemption (b)(3)(B) and held in accordance with the manifest intent of the withholding statute instead. By following either approach, courts are complying with one law at the expense of violating another. These inconsistent holdings demonstrate that Exemption (b)(3)(B) does not fulfill the intent of Congress and should be reappealed or the Supreme Court should decide this fracture as a result.

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St. Mary's University School of Law


Maximiliano Elizondo

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