With Sunshine Week just around the corner, we wanted to count down the days to our favorite time of year with a closer look at what’s going on behind the black bars: the nine federal FOIA exemptions. Today, one of the more frustrating exemptions: b(3), the “No Homers” exemption.
Exemption Name: b(3)
AKA : “No.” “No Homers”
Common Reactions: “Ugh. Guess I have to call Mark Zaid now.”
What it says: “Specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on issue or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.”
What that means: Information that is prohibited from disclosure by another federal law.
Who uses it? The Central Intelligence Agency in particular loves b(3), because it can hit you the National Security exemption and follow that with a little something called the CIA Act.
Silliest example of its use: Alan Williams was denied a request for Computer Command Subsytem used on the Voyager probes under b(3), citing the Arm Export Control Act.
What you can do about it: Considering that they cared enough about the material to write a specific law exempting it, not a whole lot. But, applying “No Homers” logic here, there might there another way to get what you’re interested in that isn’t part of the exempted material.
You should, however, make sure that the other law cited does actually cover the information you’re asking for. FOIA.Wiki outlines a number of commonly misapplied exemptions as well as properly applied ones. ProPublica has a database of how often laws are used to invoke exemption 3, based on Sunshine in Government Initiative data.
Any other resources? FOIA.Wiki has some additional tips and advice on challenging these kinds of rejections. Otherwise, time to give your friendly neighborhood FOIA officer a call, and if that doesn’t work, the federal FOIA Ombudsman.
ProPublica has an excellent database of b(3) statues here.
Image via Obama White House Archives