In practical terms the distinction between a new FOIA exemption and what is referred to as a b(3) statute (named after the section of the Federal Code that exempts "information that is prohibited from disclosure by another federal law") is practically meaningless: both are ways Congress lets federal agencies keep information out of the public's hands. However, in practice, the fact FOIA is not actually amended when a new b(3) is created has major implications for the level of scrutiny the provision gets before being written into law.
B(3)s are often created by the inclusion of just a couple of lines into any bill that is signed into law by the President. These tiny provisions are often in massive spending or authorizations bills that are seen as "must pass" pieces of legislation. Because the provision does not amend FOIA (in fact, until recently the provision did not have to even reference FOIA), it is never referred to Committees with expertise in public access to government information.
Given that b(3)s generally do not come out of Committees with expertise on FOIA (Senate Judiciary and House Oversight and Government Reform), it is not too shocking that the provisions are not particularly well drafted. Time and time again, the openness community has had to fight back against new b(3)s that are unnecessary, ill-defined and overbroad.
One recent example captures the problems created by many proposed b(3)s: to encourage other governments to share information about drug tests, early drafts of the FDA reauthorization bill included a provision that cuts of all access to information relating to drugs obtained from a federal, state, local, or foreign government agency, if the agency has requested that the information be kept confidential. Because the provision is so ill-defined and expansive, it could restrict public access to a wide-range of information that is critical to public health and safety. [learn more here]
Thanks to hard work by the Chair of the Senate Judiciary Committee, Senator Patrick Leahy, the Senate approved an amendment to its FDA reauthorization bill that limits the scope of information the can be withheld to information voluntarily provided by foreign governments. Senator Leahy's amendment also requires that the request to keep the information confidential be in writing, and, unless otherwise agreed upon, specifies a time frame after which the information will no longer be treated as confidential. Additionally, the amendment preserves the ability of Congress to access the information.
The answer to the question of what to do about b(3)s is complicated. Which Committee controls which bill is outside our control, as is the willingness of a Committee chair to refer — and share jurisdiction — of a bill. Obviously, as evidenced by Senator Leahy's amendment to the FDA bill, his Judiciary Committee has the expertise needed to ensure that FOIA-related provisions promote transparency and public accountability while allowing the government to withhold only that information which truly requires protection. The Oversight and Government Reform Committee in the House has similar expertise. Any effort to expand of the authority of the federal government to withhold information from the public should begin, at the least, with careful consideration, including public hearings, by these Committees.