Spring cleaning for b(3) provisions

Spring is a time of growth, change, and ritual; for the openness community, that means Sunshine Week, the release of agency annual FOIA reports, and fresh hope that this year will bring more transparency from the federal government.

Specifically, this year’s FOIA reports detail the use of several new b(3) provisions:

Statutory citation Agency’s description of material withheld Agency Times cited
7 USC 7414(i)(4) “Confidential communication” USDA 1
15 USC 78u-6(h)(2)(A) “Information that could identify a whistleblower” SEC 4
21 USC 1904(e)(3) “Investigative Information” Treasury 1
42 USC 247d-6b(d) “Information identifying the location of certain stockpiles” SEC 1
42 USC 2000ff-5 “Information pertaining to charges of unlawful employment practices under GINA; information obtained by the EEOC in investigating charges of unlawful employment practices including conciliation materials; and specific reports and information required to be furnished to the EEOC.” EEOC 26
42 USC 7256(g)(5) “Contracts, leases, etc., with public agencies and private organizations and persons” DOE 1
50 USC 1806(b) “Electronic surveillance information acquired pursuant to subchapter I of chapter 36 of title 50” DOJ 1

Furthermore, in 2011, two other popular b(3) provisions migrated from one section of the United States Code to another:

Statutory citation Agency’s description of material withheld Agency Times cited
41 USC 2102(a)
(formerly 41 USC 423(a))
“Contracts / RFP’s and bids pre-award” Treasury 3
41 USC 4702(b)
(formerly 41 USC 253b(m)
“Confidential business information; proposals not incorporated into contract” DOJ 3

(We know these aren’t new b(3) provisions because each is listed as updating a (then-existing) provision of law in the chart at the end of P.L. 111-350, on pages 181 and 184 of 186, which lists 41 USC 253b(m) and 423(a) respectively as migrating to 41 USC 4702 and 2102 respectively.)

We were rather surprised because 41 USC 253b(m) has been one of the most widely-used b(3) provisions since its creation in the late ’90s; in most years, it has been cited by over 20 different agencies. We realize that it can take a while for agencies to realize a law has changed, but perhaps since the Department of Justice is aware of the change, it can warn the other agencies which cite it that the law has changed, and so should their responses and reporting.

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