Notice & Comment

Chevron and FOIA Exemption 3 Statutes

Summary:  Recently, in Wolk Law Firm v. U.S., — F.Supp.3d —, 2019 WL 1528433 (E.D. Pa. April 9, 2019), a federal district judge held that a passenger cell phone recording of a cockpit was a “cockpit voice and video recorder recording” that the NTSB could withhold from a FOIA requester.  In doing so, the judge discussed an unresolved Circuit split regarding application of Chevron deference to FOIA Exemption 3 statutes, which exempt specific information from FOIA’s broad disclosure requirements.

Wolk Law Firm v. NTSB

The Statutory Scheme and Exemption 3

Section 1114 of Title 49 provides for disclosure of information the National Transportation Safety Board (“the NTSB”) gathers during its investigations.  In general, “a copy of a record, information, or investigation submitted or received by the [NTSB] . . . shall be made available to the public on identifiable request and at reasonable cost.” 49 U.S.C. §1114(a)(1).[1]  However, section 1114(c) makes “cockpit voice and video recorder recordings” confidential.  In particular, “the Board may not disclose publicly any part of a cockpit voice or video recorder recording or transcript of oral communications by and between flight crew members and ground stations related to an accident or incident investigated by the Board.”  The NTSB must make public the transcript of the voice recorder recordings and still images from a video recorder when it holds a public hearing on the accident or has filed most of the factual reports related to it.

Exemption 3 of the Freedom of Information Act (“FOIA”) exempts from disclosure records protected by a statute that either: (a) requires withholding of records “in such a manner as to leave no discretion on the issue,” (b) “establishes particular criteria for withholding” records, or (c) “refers to particular types of matters to be withheld.” 5 U.S.C. §552(b)(3)(A).[2]  Section 1114(c) was recognized as an Exemption 3 statute in McGilvra v. NTSB, 840 F. Supp. 100, 102 (D. Colo. 1993).  The NTSB periodically cites section 1114(c) in withholding information, invoking it 5 times in the fiscal year ending September 30, 2018.  NTSB, Annual Freedom of Information Act Report, FY 2018, 10 (Nov. 13, 2018).

A separate provision of the Transportation title, 49 U.S.C. §1154, addresses disclosure of cockpit voice recordings in criminal and civil litigation.  The provision allows courts to order production of cockpit voice recording under specified circumstances when necessary to ensure parties to the litigation a fair trial.[3]

The Decision

In Wolk Law Firm v. NTSB, — F.Supp.3d —, 2019 WL 1528433 (E.D. Pa. April 9, 2019), plaintiffs challenged the NTSB’s refusal to provide a video recording of an aircraft’s cockpit made by a passenger using a cell phone.  The request was as a part of a broader FOIA request for documents related to seven NTSB investigations.  Id. at *3.[4]

Even though the video had not been recorded by a built-in cockpit video recording device, the NTSB invoked section 1114(c).  The agency asserted that the statutory term ““cockpit voice and video recorder recording” encompassed video taken by a passenger cell phone, and claimed Chevron deference for its interpretation.  Id. at *3.  Not only did plaintiffs dispute the NTSB’s interpretation of section 1114(c), they argued that the Court could order the video’s release pursuant to section 1154.  Id.  As noted above, section 1154 authorizes courts to order the production cockpit voice recording during judicial proceedings.  While plaintiffs had pending tort claims involving the accidents covered by the FOIA request, those cases were not before the Court. Id. at *1, n.2.[5]

District Judge Rubreno agreed with the NTSB that section 1114(c) qualified as an Exemption 3 statute, because the provision left the NTSB no discretion with regard to releasing cockpit voice and video recordings.  Wolk Law Firm v. NTSB at *4.  He then turned to the interpretive question, whether the passenger cell phone recording qualified as a “cockpit voice or video recorder recording.”

Judge Rubreno began by analyzing whether Chevron deference applied to an agency’s interpretation of an Exemption 3 statute’s scope.  Id. at *4-*5.  In general, agencies are not due Chevron deference for their interpretations of FOIA, including the scope of FOIA’s exemptions.  While the cases base this conclusion on FOIA’s applicability to many agencies, meaning that no one agency is charged with administering the statute, see, e.g., Al-Fayed v. C.I.A., 254 F.3d 300, 307 (D.C. Cir. 2001),[6] more cogent support for the conclusion lies in FOIA’s de novo standard of review, which precludes viewing federal agencies as charged with administering FOIA.  See, U.S. v. Mead Corp. 533 U.S. 218, 232-33 & n.16 (2001)(de novo review of Customs tariff classifications by Court of International Trade undermines U.S. Custom Service’s claims of Chevron deference for its classification rulings).

In CIA v. Sims, 471 U.S. 159 (1985), the U.S. Supreme Court gave deference to the CIA’s interpretation of an Exemption 3 statute, specifically §102(d)(3) of the National Security Act of 1947, 61 Stat. 498 (codified at 50 U.S.C. § 403(d)(3)). Section 102(d)(3) provided that the CIA Director “shall be responsible for protecting intelligence sources and methods from unauthorized disclosure.”  The CIA had invoked the provision to deny a FOIA request.

Judge Rubreno distinguished Sims, explaining that section 102(d)(3) “necessarily required deference to the agency.” Wolk Law Firm v. NTSB at *4 (quoting Sims).  It expressly conferred upon the CIA “broad authority” to “define” the type of materials covered.  Id. (quoting Sims).  And “the legislative history confirmed that result.”   Id. (quoting Sims).  Section 1114(c) clearly did not confer such “broad authority” on the NTSB.

Judge Rubreno noted a Circuit split on the question of Chevron deference in the Exemption 3 context, and the lack of clear authority in his own Circuit.[7]   In Aronson v. IRS, 973 F.2d 962 (1992), the First Circuit had held that deference was required to honor the competing aims of FOIA and Exemption 3 statutes.  FOIA’s basic aim is “sunlight;” Exemption 3 statutes’ generally seek to preserve confidentiality.  Accordingly, the First Circuit had concluded, “once a court determines that the statute in question is an Exemption 3 statute, and that the information requested at least arguably falls within the statute, FOIA de novo review normally ends.” Id. at 967.  Aronson involved I.R.C. § 6103(a), which makes tax returns and return information “confidential.”[8]

In Carlson v. U.S. Postal Service, 504 F.3d 1123, 1126–27 (9th Cir. 2007), the Ninth Circuit had adhered to its own precedent, which predated Aronson, holding Chevron deference inappropriate given “‘the court’s responsibility to ensure that agencies do not interpret [FOIA’s] exemptions too broadly.’” Id. at 1127 (quoting Lessner v. U.S. Dep’t of Commerce, 827 F.2d 1333, 1335 (9th Cir. 1987)).  The Exemption 3 statute at issue in the case, 39 U.S.C. §410, made FOIA applicable to the Postal Service, 39 U.S.C. §410(b)(1), with certain exceptions.  One exeception provided that the Postal Service was not required to disclose certain categories of information, among them “information of a commercial nature, including trade secrets, whether or not obtained from a person outside the Postal Service, which under good business practice would not be publicly disclosed,”  39 U.S.C. §410(c)(2).

Judge Rubreno resolved the conundrum he faced by focusing on FOIA’s mandate that in resolving challenges to denials of FOIA requests, a court must “determine the matter de novo.” 5 U.S.C. § 552(a)(4)(B).  In his view, the mandate encompassed all issues necessary to resolve “the matter,” whether questions of law or fact.  The NTSB’s deference argument would require courts to parse the command of conducting de novo review, reviewing some aspects of the agency’s decision de novo, while according agencies deference in other respects.  Wolk Law Firm v. NTSB  at *5.  He considered such a nuanced standard for review inappropriate as a “default mode of analysis.”  Id.

Perhaps considering discretion the better part of valor, the Judge decided that even absent Chevron deference he would uphold the agency’s interpretation.  Id.  In his view, section 1114(c)’s prime mandate was its “prohibition on disclosure of recordings made of the cockpit.” He considered “the manner of [making the] recording . . . immaterial.”  Id.  Given that such cell phone video would generally show exactly the types of information captured by a built-in cockpit video recorder, the cell phone video should be treated similarly.


Both the specific interpretive question, the meaning of the phrase “cockpit voice and video recorder recordings, and the more general methodological question, regarding the applicability of Chevron deference to Exemption 3 statutes, merit discussion.

What are “Cockpit Voice And Video Recorder Recordings”?

The NTSB’s interpretation of the term “cockpit voice and video recorder recording,” and Judge Rubreno’s reason for accepting it, make a certain amount of practical sense.  Perhaps the NTSB interpretation is the type of “practical administrative construction” borne of experience with administering the statute that courts have long viewed as warranting some level of deference.[9]  Nevertheless, that interpretation is vulnerable to reversal on appeal, particularly given the contemporary trend toward textualism.

First, the term “cockpit voice and video recorder” is most naturally considered a term of art referring to the standard cockpit voice and video recording systems used in the aviation industry.  Indeed, Congress’ pairing of video recorder recordings with voice recorder recordings is significant.  The term “cockpit voice recorder” is clearly a term of art; there are precise requirements for cockpit voice recorders – and the information voice and flight data recorders produce are protected by two “black boxes” constructed to withstand virtually any crash and be recovered for purposes of NTSB investigations.[10]

Second, if section 1114(c) were intended to protect any recording of cockpit activity, rather than only recordings from a defined set of devices, Congress could merely have made confidential any “cockpit voice and video recordings,” rather than any “cockpit voice and video recorder recordings.”  The simpler phraseology would have encompassed any recording of an aircraft’s cockpit, regardless of the device used.  It certainly would have covered recordings from any device that possessed similar capabilities to built-in cockpit voice and video recorders. But in defining the recordings the NTSB was to withhold, Congress specified only those recordings from “cockpit voice and video recorders,” presumably focusing on some critical characteristic of the recording device, rather than the information the device captured.

Third, installed cockpit voice and video recorders capture only activity that occurs within the cockpit, and are installed precisely so that the NTSB can take them into possession in the event of a crash.  Cell phones, whether used by the pilots, other members of the flight crew, or passengers, contain a great deal of private information unrelated to the flight.  See, Riley v. California, 573 U.S. 373, 393-97 (2014).  Moreover, such personal electronic devices would generally not be subject to the NTSB’s exclusive control.  The NTSB should have no need to preclude flight crew members or passengers from publicly sharing with others information they have lawfully recorded on their cell phones.[11]

Chevron Deference

Should Chevron apply to Exemption 3 statutes?

While Exemption 3 statutes are often construed in the context of FOIA claims, they exist independently of FOIA.  Moreover, such statutes contain their own standards of disclosure, and often their own procedures governing withholding or release of information.  Those procedures may be both self-contained and distinct from FOIA.[12]  Often, unlike FOIA, they address documents or information maintained by a particular agency, rather than by a broad cross-section of agencies.[13]  Many post-date FOIA and the 1976 FOIA amendments that added specificity to Exemption 3.  Many even post-date the “OPEN FOIA Act of 2009, Department of Homeland Security Appropriations Act, 2010, Pub. L. 111-83, §524, 123 Stat. 2142, 2184, which requires Congress to specifically reference Exemption 3 for the statute to operate as an Exemption 3 statute.  Such later-in-time statutes focused on more specific subject matter would ordinarily prevail over FOIA even if Congress had not mandated such a result by adopting Exemption 3.[14]

In any event, the above suggests that Exemption 3 statutes are typically separate legislation to be reconciled with FOIA, not necessarily incorporated into it.  Exemption 3 operates in two ways.  It functions as a savings clause for legislation regarding the disclosure of government information that predated FOIA or the relevant amendments to Exemption 3.[15]  But perhaps more importantly, it provides a stable background assumption against which Congress can legislate; it specifies that future legislation satisfying Exemption 3’s standards is not subject to FOIA statute and its processes.   This reconciliation of FOIA with separate statutes clearly accords Exemption 3 statutes, and the standards and procedures set forth therein, primacy over FOIA.  In enacting Exemption 3 statues, Congress has consciously balanced the interest in disclosure against the need to maintain the confidentiality of the particular information covered, and often made the agency responsible for compliance with those specialized statutory provisions.  The requirement that Congress expressly reference Exemption 3 in the text of an Exemption 3 statute provides an additional assurance that Congress consciously makes the decision that FOIA’s general transparency standards are inappropriate with respect to the particular type of information or files exempted.

Agency action with regard to disclosure or withholding of information under such Exemption 3 statutes can be challenged under the Administrative Procedure Act, but such review would ordinarily not be de novo.[16]  FOIA’s de novo review requirement should be subordinated to the standards for challenging agency withholding of the information under the applicable Exemption 3 statute itself.  In the absence of a provision specifying de novo review in the particular Exemption 3 statute, de novo review should not be assumed.  Instead, the APA’s “arbitrary and capricious” standard of review should presumptively be applicable.

So the simple conclusion might be that, unless otherwise specified in the Exemption 3 statute, agency interpretations of Exemption 3 statutes should be assessed under the Chevron framework.  But ultimately, a uniform approach to the question may be inappropriate due to the considerable variance among Exemption 3. At least four types of Exemption 3 statutes can be identified.

The first group of statutes may resemble the National Security Act provision at issue in Sims.  That provision, which merely called for the Director of Central Intelligence to protect “intelligence sources and methods,” clearly vested very broad authority in the Director to define the meaning of the term.[17]  Given Exemption 3’s requirements, few Exemption 3 could confer such broad discretion on agencies.  Were a statute to do so, a court would likely find that the statute failed to require withholding “in such a manner as to leave no discretion on the issue,”  “establishe[] particular criteria for withholding” documents, or sufficiently “refer[] to particular types of matters to be withheld,” precluding its recognition as an Exemption 3 statute.  With respect to Sims-type statutes, the presumption suggested above should be especially strong.[18]

A second group of Exemption 3 statutes may clearly specify procedures for disclosure of information and litigation over disputes regarding entitlement to information designed to make FOIA inapplicable.[19]  Again, the presence of such provisions would confirm that the Exemption 3 statute should be viewed as superseding FOIA’s procedural provisions.

Yet a third group of Exemption 3 statutes may be so limited that they may work in tandem with FOIA.  The Exemption 3 statute could be viewed as merely providing the standard for withholding information, while FOIA would provide the procedural framework for resolving disputes over document requests.  The D.C. Circuit and the Tenth Circuit have interpreted I.R.C. §6103 in this manner.  In the D.C. Circuit’s view, FOIA and section 6103 seemed “quite literally made for each other” − section 6103 prohibits the disclosure of certain IRS information, while FOIA requires all agencies, including the IRS, to provide nonexempt information to the public. Church of Scientology v. IRS, 792 F.2d 146, 149 (D.C. Cir. 1986), aff’d, 484 U.S. 9 (1987). Building on that approach, the Tenth Circuit held that section 6103 “provides the substantive criteria regarding the disclosure of ‘return information,’” while FOIA provides “the procedures that must be followed in reviewing the agency’s determination.”  De Salvo v. IRS, 861 F.2d at 1217, 1218–21 (10th Cir. 1988).  While the D.C. and Tenth Circuits’ conclusions are contestable, undoubtedly some  Exemption 3 statutes that could be harmonized with FOIA in such a manner.

The argument for Chevron deference in such cases is more contestable.  The courts’ power of de novo review, a procedural aspect of FOIA, might well encode a presumption against Chevron deference.  The courts’ role in adjudicating the case afresh may suggest the power to consider interpretive issues afresh as well.  After all, engaging in statutory interpretation may be inherent in applying the law, as defined by the statute, to the facts; it is not always easy to separate statutory interpretation from determinations of “ultimate facts.”  But even in such circumstances Chevron deference is ordinarily appropriate with respect to agency interpretation of the substantive standard for disclosure.  Even if Congress intended to allow parties to rely on FOIA procedures, it has arguably charged the agency with giving precision to the specialized standards for withholding or disclosing documents.

A fourth group of Exemption 3 provisions appear to do no more than replicate FOIA’s requirements. For example, 15 U.S.C. §2055(a)(2) requires that certain information reported to or obtained by the Consumer Product Safety Commission be withheld if it contains a trade secret or is “subject to Exemption 4 of FOIA.” In effect, the provision merely removes the agency’s authority to make a discretionary disclosure of information that falls within Exemption 4. Similarly, 15 U.S.C. §§3710a(b)(1)(a) and (c)(7)(a) preclude disclosure trade secrets or commercial or financial information that is privileged or confidential, under the meaning of FOIA Exemption 4.

Ultimately, despite the considerable variance in the structure and comprehensiveness of Exemption 3 statutes, the general presumption should be that Chevron deference is appropriate with respect to agency interpretations of Exemption 3 statutes.[20]


Courts should adopt a general presumption that Chevron deference applies to agencies interpretation of the limitations on disclosure of information in Exemption 3 statutes, but the presumption may not be appropriate for some Exemption 3 statutes.  Ultimately, even applying Chevron deference to the NTSB’s interpretation of the term “cockpit voice and video recorder recordings,” the agency’s conclusion that passenger cell phone video of a cockpit falls within the statute’s scope should be considered contrary to section 1114(c)’s unambiguous meaning, and thus invalid.

* * * * *

[1] Section 1114(a)(1) includes several caveats to this general disclosure mandate, including  special provisions restricting disclosure of trade secrets (§1114(b)), surface vehicle recordings and transcripts (§1114(d)), drug test results (§1114(e)), and “records or information relating to [the NTSB’s] participation in foreign aircraft accident investigations.” (§1114(f)).

[2] The Department of Justice periodically publishes a listing of statutes recognized as Exemption 3 statutes. U.S. Dep’t of Justice, Office of Information Policy, Statutes Found to Qualify under Exemption 3 of the FOIA (December 2016).

[3] After in camera review of the transcript, the court can order the transcript’s release upon finding that the publicly available portions of the recording or transcript fail to provide “sufficient information for [a] party to receive a fair trial,” 49 U.S.C. §1154(a)(2).  The Judge can order the voice recording itself and a still images from a video recorder released, upon concluding, after in camera review, that a transcript does not exist and the material already released is insufficient to afford a party a fair trial. 49 U.S.C. §1154(a)(3).  Any such order must be accompanied by a protective order limiting use of the recordings or still images to the judicial proceeding and prohibiting further dissemination. 49 U.S.C. §1154(a)(4).

[4] The opinion does not reveal how a passenger cell phone video of the cockpit would have been taken during flight operations, presumably the only time such a video would have relevance for an NTSB investigation.

[5] The Judge agreed with the NTSB that the provision applies to litigation over aircraft crashes, not FOIA suits.  Wolk Law Firm v. NTSB, at *5, n.5.

[6] For the principle that an agency’s interpretation of a statute imposing obligations on multiple agencies is ineligible for Chevron deference, see Bowen v. American Hospital Assn, 476 U.S. 610, 642 n. 30 (1986); DeNaples v. Office of the Comptroller of the Currency, 706 F.3d 481, 487–88 (D.C.Cir.2013).  Nevertheless, even when Congress has tasked a single agency with promulgating regulations regarding a discrete aspect of FOIA, such as tasking OMB with promulgating a uniform schedule of fees to be charged FOIA requesters, 5 U.S.C. § 552(a)(4)(A)(i), the agency receives no Chevron deference. See Sack v. U.S. Department of Defense 823 F.3d 687, 692 (D.C. Cir. 2016) (Kavanaugh, J.)(noting the Government’s concession on the point); National Security Archive v. U.S. Dept. of Defense, 880 F.2d 1381 (construing the term “news media representative” without referencing OMB’s definition in its uniform schedule of fees); see, Cause of Action v. FTC, 799 F.3d 1108, 1119-20 (D.C. Cir. 2015)(discussing the history of OMB and D.C. Circuit interpretation of the term “news media representative”).

[7] He noted the following inconclusive Third Circuit precedent: Houghton v. Nat’l Sec. Agency, 378 F. App’x 235, 238 (3d Cir. 2010); McDonnell v. U.S., 4 F.3d at 1227, 1249 (3dCir. 1993); Grasso v. I.R.S., 785 F.2d 70, 72-75 (3d Cir. 1986); Ferri v. Bell, 645 F.2d at 1213, 1221 (1981).

[8] The First Circuit noted the variety of approaches to reconciling I.R.C. §6103 with FOIA. See, De Salvo v. IRS, 861 F.2d at 1217, 1218–21 (10th Cir. 1988); Church of Scientology v. IRS, 792 F.2d 146, 148–50 (D.C. Cir. 1986), aff’d.,  484 U.S. 9 (1987);  Grasso v. IRS, 785 F.2d 70, 73–75 (3d Cir. 1986);  Long v. United States IRS, 742 F.2d 1173, 1177–79 & n. 12 (9th Cir. 1984);  Linsteadt v. IRS, 729 F.2d 998, 999, 1003 (5th Cir.1984);  Currie v. IRS, 704 F.2d 523, 527–28 (11th Cir. 1983).

[9] E.g., Carstens v. Nuclear Regulatory Com’n, 742 F.2d 1546, 1559 (D.C. Cir. 1984)(“practical administrative construction”)(quoting Power Reactor Co. v. Electricians, 367 U.S. 396, 408, (1961)); Mintz v. Baldwin 289 U.S. 346, 351  (1933)(“practical construction”); see, Skidmore v. Swift, 323 U.S. 134, 139 (1944)(“specialized experience”); NLRB v. Hearst Publications, 322 U.S. 111,  130 (1944)(“[e]veryday experience in the administration of the act”).  The term “practical interpretation” is more frequently used with respect to the contracting parties’ mutual interpretation of their contractual obligations.  See, e.g., Dalles Irrigation Dist., v. U.S., 82 Fed. Cl. 346, 356 (2008)(quoting Chicago v. Sheldon, 76 U.S. 50, 54 (1869)); Ocean Transport Line v. American Philippine Fiber Indus., 743 F.2d 85, 91 (2d Cir. 1984)(quoting Old Colony Trust Co. v. Omaha, 230 U.S. 100, 118 (1913)); see generally, RICHARD A. LORD, 11 WILLISTON ON CONTRACTS § 32:14 (4th ed.) (1999).  The Supreme Court has noted the deference due administrators “charged with the responsibility of setting [a statutory scheme’s] machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new.’ ”  Udall v. Tallman, 380 U.S. 1, 16, (1965)(quoting Power Reactor Co. v. Electricians, supra); accord, Aluminum Co. of America v. Central Lincoln People’s Utility Dist., 467 U.S. 380, 390 (1984).

[10] Cockpit voice recorders are required equipment on aircraft, with certain exceptions.  See, 14 C.F.R. §91.609.  Granted, since cockpit video recorders are not required, the Department of Transportation appears not to have defined the term.

For a recent example of a similar interpretive approach in construing an Exemption 3 statute, see Ibrahim v. Department of State, 311 F.Supp.3d 134, 141 (D.D.C. 2018)(construing the term “visas or permits to enter the United States” in 8 U.S.C. § 1202(f))).

[11] Of course, there may be severe restrictions on the use of cell phones by both crew members on the flight deck and there are certainly severe restrictions on passenger access to cockpits during flight operations.  A flowchart of the restrictions of flight deck personnel’s use of personal electronic devices is provided in  David Yanofsky, These are the Rules About Pilots Taking Pictures in the Cockpit, QUARTZ (December 16, 2014).

[12] See, e.g., Central Intelligence Agency Information Act, Pub. L. 98–477, 98 Stat. 2209 (Oct. 15, 1984)( codified as 50 U.S.C. § 3141; Protected National Security Documents Act of 2009 (“the PNSDA”), Department of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83, § 565, 123 Stat. 2142 (2009).  The latter was discussed in this blogpost at Bernard Bell, “Hard Look” and “Proceduralized” Review: The Saga of the Abu Ghraib Photographs, 2009 to Present, 36 YALE J. ON REG.: NOTICE & COMMENT (Aug. 27, 2018),

[13]Church of Scientology, supra note 8, 792 F.2d at 149 (“FOIA is a structural statute, designed to apply across-the-board to many substantive programs”).

[14]Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (1976)(specific legislation takes precedence over general legislation); Morton v. Mancari, 417 U.S. 535, 550-551 (1974)(same); Radzanower, supra, 426 U.S. at 150-60 (Stevens, J., dissenting)(when two statutes conflict, the later-in-time statute governs); SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION §23:9 (available on westlaw)(“when two statutes are repugnant in any of their provisions, the later act, even without a specific repealing clause, operates to the extent of the repugnancy to repeal the first”).

[15]  H.R. Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966)(noting that the nearly 100 statutes that “restrict access to particular government records” would be saved from modification by Exemption 3); Administrator, Federal Aviation Administration v. Robertson, 422 U.S. 255, 266 (1975).

[16] Indeed, typically, “reverse” FOIA statutes are brought pursuant to the APA, rather than FOIA.

[17] While Sims did not cite Chevron, that failure is unsurprising given that Chevron had been decided only the previous Term.

[18] Section 7306(d) of Title 15, which provides that “the National Institute of Standards and Technology shall not publicly release any information it receives in the course of an investigation . . . if the Director finds that the disclosure of that information might jeopardize public safety,” may be another Sims-type statute that has been recognized as a Exemption 3 statute.

[19] See, e.g., Central Intelligence Agency Information Act, Pub. L. 98–477, 98 Stat. 2209 (Oct. 15, 1984)(codified as 50 U.S.C. § 3141; Protected National Security Documents Act of 2009 (“the PNSDA”), Department of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83, § 565, 123 Stat. 2142 (2009).  For example, 50 U.S.C. § 3141 limits the search obligations imposed by a FOIA request, specifies requirements for pleadings seeking operational files and the CIA’s burden in rebutting allegations in the pleadings, and decennial review of exempted operational files.  50 U.S.C. §§3141(c), 3141(f)(3). 3141(f)(4), 3141(g).

[20] In addition to the consideration noted above, the subject matter to which the Exemption 4 matter relates may be relevant.  For instance, courts should be reluctant to refuse Chevron deference with regard to intelligence provisions, involving an area in which the President’s prerogatives are at their greatest.  Or, the courts should be reluctant to refuse Chevron deference to a commercial instrumentality’s interpretation of a disclosure provision that requires it to decide disclosure questions based on “good business practices,” see, 39 U.S.C. §410(c)(2).

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