FOIA Exemption 3 Applied To Documents Protected By Rule 6(e)

Introduction

Every document production to the Department of Justice (DOJ) contains some variation of the disclaimer “FOIA Confidential Treatment Requested Pursuant to Rule 6(e).” But how much protection does this language actually provide? Practitioners may be surprised to learn that the Freedom of Information Act (FOIA) does not provide as much protection as expected, especially where the documents are garden-variety business records that are not created in connection with the grand jury investigation. In fact, the degree of protection depends on the circuit. 

Background

There are nine exemptions to FOIA that authorize federal agencies to withhold information sought in a FOIA request. For example, the government must withhold material that could reasonably be expected to interfere with ongoing law enforcement proceedings or material that could disclose law enforcement investigation procedures.¹ Another exemption protects a company's trade secrets or sensitive