- 2 -Exemption 3 of the FOIA allows agencies to withhold information if specifically authorizedby another federal statute. However, the authorizing statute must satisfy one of twocriteria. It must either (i) require that the information be withheld from the public in sucha manner as to leave no discretion on the issue, or (ii) establish particular criteria forwithholding or refer to particular types of information to be withheld. 5 U.S.C. § 552(b)(3).The Supreme Court has established a two-prong standard of review for Exemption 3 cases.
See CIA v. Sims
, 471 U.S. 159, 167 (1985). First, the agency must determine whether thestatute in question is a statute of exemption as contemplated by Exemption 3.
at 167.Second, the agency must determine whether the withheld material satisfies the criteria ofthe exemption statute.
We have previously found that the Procurement Integrity Act (PIA), 41 U.S.C. § 423, is astatute of exemption as contemplated by Exemption 3.
See U.S. Ecology, Inc.
, 25 DOE¶ 80,153 at 80,632 (1995);
Energy Research Corp.,
21 DOE ¶ 80, 130 at 80,600 (1991). The PIAis a federal statute that contains language specifically prohibiting the authorizing officialfrom releasing protected information. In the PIA, Congress referred to the type ofinformation that must be withheld as “source selection information.” 41 U.S.C. § 423(a)(1).However, Congress carefully identified documents that make up source selectioninformation. 41 U.S.C. § 423 (f)(2)(A)-(J).Our next question is whether the information requested in this case falls under thedefinition of the PIA of “source selection information.” In pertinent part, the Act statesThe term “source selection information” means any of the followinginformation prepared for use by a Federal agency for the purpose ofevaluating a bid or proposal to enter into a Federal agency procurementcontract, if that information has not been previously made available to thepublic or disclosed publicly.41 U.S.C. § 423(f)(2). According to Procurement, the information requested is completed
the performance of a contract,
for the purpose of evaluating a bid or proposalto
a contract with the DOE. E-Mail dated January 12, 2011, from Edward Marceauto Janet Fishman, OHA, DOE. Therefore, we do not believe that this requested informationfalls under the definition of “source selection information,” as defined in the PIA.We note that Procurement also cites a provision in the Federal Acquisition Regulations(FAR) to withhold the requested information under Exemption 3. The FAR is not a statuteand we cannot find any judicial support that it can be used under Exemption 3 to withholdinformation. Therefore, we will remand the matter to Procurement for a newdetermination either releasing the requested information or issuing a new justification thatcites a statutory basis for withholding the information.