Exemption 7(E)


 * This article is part of a series on Exemptions
 * This article is part of a series on Exemption 7

Introduction
To withhold information under Exemption 7(E), the government has the burden to establish the following:


 * 1) That the record in question is “compiled for law enforcement purposes,” which is the threshold requirement for Exemption 7 ;
 * 2) That the information discloses either "techniques and procedures" or "guidelines" for law enforcement investigations or prosecutions; and
 * 3) That disclosure could reasonably risk circumvention of law. However, there is some disagreement among courts whether this showing must be made in the context of "techniques and procedures."

In addition, the government must satisfy the foreseeable harm standard.

Text of Exemption 7(E)
(b) This section does not apply to matters that are—[...]

(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information [...]

(E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law

Applicability
To withhold records under Exemption 7(E), an agency must first establish that the record in question is “compiled for law enforcement purposes,” which is the threshold requirement for Exemption 7 to apply. Next, the government must also establish that the record is a type of information covered under Exemption 7(E). The exemption identifies two categories of information: (a) "techniques and procedures" or (b) "guidelines." Finally, the agency must show that the information, if disclosed, would reasonably be expected to "risk circumvention of the law."

Law enforcement "techniques and procedures"
Under Exemption 7(E), the Second Circuit has defined “techniques and procedures” as referring to "how law enforcement officials go about investigating a crime." Other courts have followed this definition, including the Eleventh Circuit and some D.C. district courts.

For example, one court found that a iPhone hacking tool used by the FBI qualified as a law enforcement technique. The court observed that “releasing the vendor's identity could provide individuals with a recourse to discovering how to circumvent its use in the future.” The court also permitted the government to withhold the price of the hacking tool for the same reason.

Courts have also found the following to qualify as “techniques and procedures”:


 * Certain "specific" interviewing techniques
 * Instructions to cooperating witnesses
 * Amounts of money used to purchase evidence
 * A comprehensive “library” of videos on the FBI's ballistics testing methods
 * Computer forensic examination procedures
 * Source code for background investigation forms
 * FBI Manual section that details documents, records, and patterns of criminal activity related to transportation of obscene material
 * Internal ratings of different investigatory techniques, even if some of the techniques themselves are publicly known

Exemption 7(E) does not apply to techniques and procedures that are “routine” and “generally known to the public.” As one court explained, these would include “techniques that are commonly described or depicted in movies, popular novels, stories or magazines, or on television.” This includes, for example, “techniques such as eavesdropping, wiretapping, and surreptitious tape recording and photographing,” which “the government should release. . . to [the requester] voluntarily.” Other examples of publicly known techniques include:


 * Use of post office boxes
 * Pretext telephone calls
 * Impersonation of journalists and documentary filmmakers

However, agencies can use Exemption 7(E) to withhold the details of even commonly known techniques. For example, courts have allowed withholding of information regarding law enforcement’s use of social media, reports identifying the "strengths and weaknesses of particular polygraph programs," body microphones, specific aircraft used by the F.B.I., and how federal agents manage and search specific commercial databases.

Law enforcement "guidelines"
According to the Second Circuit, the term “guidelines" in the Exemption 7(E) context "generally refers. . . to resource allocation." The Second Circuit offered a helpful illustration: "For example, if a law enforcement agency concerned with tax evasion directs its staff to bring charges only against those who evade more than $100,000 in taxes, that direction constitutes a “'guideline.'”

Courts have found the following qualify as “guidelines” for Exemption 7(E) purposes:


 * FBI guidelines and standards regarding social media investigations
 * IRS settlement strategies
 * Emergency action plans

Other material not covered by Exemption 7(E)
Exemption 7(E) does not apply to “garden-variety legal analysis,” which includes discussion and digests of caselaw. For example, the D.C. Circuit held that an agency could not rely on Exemption 7(E) to withhold portions of an agency manual that merely discussed case law and statutes related to obscenity. The court reasoned that the agency’s explanation for why Exemption 7(E) applied — that the information would give defendants “a crystal ball view of what they will face from the prosecution” — was too vague.

Circuit split over the circumvention prong
It is unambiguous from FOIA's text that agencies that seek to withhold law enforcement "guidelines" under Exemption 7(E) must also show that disclosure "could reasonably be expected to risk circumvention of the law." Based on the grammatical structure of Exemption 7(E), however, courts are split on whether agencies must also satisfy the "risk of circumvention of the law" prong to withhold "techniques and procedures,” as well.

The D.C. Circuit has explicitly ruled that the government must satisfy the "risk of circumvention of the law" prong, regardless of the category of materials, as has the Third Circuit. The Fifth and Seventh Circuits have also applied the circumvention prong to techniques and procedures. The Second Circuit and Ninth Circuits, meanwhile, applying a grammatical analysis, have found the circumvention prong "modifies only ‘guidelines’ and not ‘techniques and procedures.’” The Eleventh Circuit declined to take a position on this issue.

Application of the circumvention prong
If the circumvention prong applies, an agency seeking to withhold records under Exemption 7(E) must “logically” show how releasing the requested information would “create a risk of circumvention of the law.” The D.C. Circuit has characterized this as a "relatively low bar," explaining: "Rather than requiring a highly specific burden of showing how the law will be circumvented, exemption 7(E) only requires that the [the agency] demonstrate logically how the release of the requested information might create a risk of circumvention of the law.”

Despite this prong being a "relatively low bar," courts have found agencies failed to satisfy it. For example, the Ninth Circuit found portions of a prosecutors' manual on "how to lawfully obtain electronic location information" did not "present such a risk" of circumvention of the law, since the information "may be of use to a lawyer litigating against the agency, but it provides no relevant information that would assist criminals in conforming their behavior to evade detection or circumvent the law."

Exemption 7(E) and the foreseeable harm standard
The foreseeable harm standard was added to FOIA in 2016, and it explicitly applies to all FOIA exemptions except for Exemption 3. It is not yet clear how Exemption 7(E) interacts with the foreseeable harm standard.

No federal appeals court has addressed this issue. However, some district courts have concluded that, if Exemption 7(E) applies, "no further foreseeable harm analysis is needed," at least when the agency is required to satisfy the "risk of circumvention of the law" prong.

Strategies for challenging Exemption 7(E) withholdings
One district court ruled against the government when it failed to be adequately specific as to the actual procedures "at stake."

The U.S. District Court for the District of Columbia in Shapiro v. Department of Justice declined to grant summary judgment to the government when the FBI failed to explain the "specific risk posed by disclosure of the file numbers" on records related to investigations that had been closed for a number of years. Specifically, the court "needed to know how long the investigations in question had been closed, and what about the particular case numbers made them especially sensitive, in order to determine whether disclosure of the file numbers might give rise to a risk of circumvention of the law, as required under Exemption 7(E)." This indicates that where records may be purely historical in nature, an agency may have more difficulty alleging that a risk of circumvention is reasonably foreseeable.