§ 552(c) Exclusions


 * This article is part of a series on Exemptions

Introduction
In three narrow situations, law enforcement agencies may treat certain records as if they were not subject to FOIA, and in such cases, the agency “will respond to the request as if the excluded records did not exist.” These three situations are generally referred to as “exclusions.”

Text of Subsection (c)
(c)
 * (1) Whenever a request is made which involves access to records described in subsection (b)(7)(A) and—
 * (A) the investigation or proceeding involves a possible violation of criminal law; and
 * (B) there is reason to believe that (i) the subject of the investigation or proceeding is not aware of its pendency, and (ii) disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings,


 * the agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of this section.

Generally
The Department of Justice has interpreted the § 552(c) exclusions to mean that “a requester can properly be advised in such a situation that ‘there exist no records responsive to your FOIA request.’” This is different from a “Glomar” response, where an agency will state that it cannot confirm or deny the existence of records responsive to a FOIA request.

An agency invoking an exclusion will not reveal the fact it is relying on an exclusion in its response to a FOIA request, so unless a requester knows or has reason to believe otherwise, it will not necessarily be clear that the agency has relied on an exclusion. However, a requester can appeal an agency’s “no records” response on the basis that it is an “adverse determination.”

The possible application of an exclusion can be appealed both administratively and in court. U.S. Attorney General memorandum instructs that “agencies should be prepared to handle administrative appeals and even court challenges which seek review of thepossibility that an exclusion was employed in a given case,” as such challenges are “legitimate.”

Subject of criminal investigation
The first exclusion applies to requests for records that would properly fall under Exemption 7(A), and a) “the investigation or proceeding involves a possible violation of criminal law,” and b) “there is reason to believe that (i) the subject of the investigation or proceeding is not aware of its pendency, and (ii) disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings.”

An agency “cannot. . . refuse to acknowledge requested records under this authority unless the records concern a criminal, rather than civil, law enforcement proceeding.” This exclusion is designed “to prevent a ‘tipoff’ of investigatory activity to someone using the FOIA to find out if such activity is underway.”

The FOIA provides that this exclusion can apply “during only such time as that circumstance continues.” The exclusion does not apply if “there is reason to believe that the subject of an investigation or proceeding is aware of its pendency”.

The legislative history of this exclusion provides examples of “certain publicly demonstrable facts” a requester can produce to establish “a heavy presumption of the subject’s awareness” of the proceedings:
 * “public statements by law enforcement officials relating to an ongoing or contemplated investigation”;
 * "returns of subpoenas and search warrants against subjects or other persons from whom the subject could reasonably be expected to learn of the subpoenas or search warrants”;
 * "public statements by subjects or persons associated with subjects”;
 * “arrests of subjects or persons associated with subjects”;
 * “grand jury investigations of which subjects and/or the general public are aware”; and
 * “any other incident or statement that brings the existence of an investigation to public attention.”

As stated in the legislative history of the exclusion, “[r]equesters who present such publicly demonstrable facts to an agency are to receive due consideration or reconsideration of their requests within the administrative process.”

Additionally, a "showing by a requester that an agency had in its possession such publicly demonstrable facts, but withheld records from normal search and review processes without justification will raise a strong inference of an arbitrary and capricious withholding.”

Confidential Informants
The second exclusion applies to “informant records maintained by a criminal law enforcement agency under an informant's name or personal identifier” where such records “are requested by a third party according to the informant's name or personal identifier.”

As suggested in a 1987 memorandumissued by the U.S. Attorney General, this exclusion addresses “the situation in which a sophisticated requester could try to ferret out an informant in his organization by forcing a law enforcement agency into a position in which it could not ordinarily withhold records on a suspected informant except by relying on Exemption 7(D) — which would confirm that the person whose records are sought is indeed an informant.”

The legislative history to this exclusion raises an “obvious limitation[]” of this exclusion: “Where the requester is the informant himself, or a third party who describes the responsive records without reference to the informant’s name or personal identifier, the records are subject to ordinary consideration under the provisions of the FOIA.”

An agency cannot apply this exclusion once “the informant’s status as an informant has been officially confirmed[.]” There is no uniformly adopted definition for “official confirmation,” although two recent cases interpreting the phrase provide some guiding principles.

In a 2011 case, the U.S. Court of Appeals for the Ninth Circuit interpreted the phrase “officially confirmed” in the context of this exclusion as “a matter of first impression,” noting the lack of guidance from prior cases, legislative history, or the Department of Justice. The court defined it as “an intentional, public disclosure made by or at the request of a government officer acting in an authorized capacity by the agency in control of the information at issue.” Applying that definition, the court held that the government officially confirmed an informant’s status where it “intentionally elicited testimony” from the informant and agency officials about the informant’s activities “in open court in the course of official and documented public proceedings.” Further, the court explained that while official confirmation does not “require[] that the government issue a press release publishing the identity of a confidential informant or that the director of a federal law enforcement agency personally identify the informant,” it was a relevant consideration that the information was not merely leaked or “improperly disclosed in an unofficial setting by careless agents.”

In a 2012 case, the U.S. District Court for the District of Columbia looked to cases interpreting “official acknowledgement” under the waiver standard, as well as the 2011 ruling of the U.S. Court of Appeals for the Ninth Circuit, in deciding whether an informant’s status had been officially confirmed. The court held that the FBI had first confirmed such status when the FBI’s Chief of the Record/Information Dissemination Section released records pursuant to a FOIA request that stated “Ernest Columbus Withers was formerly designated as ME 338-R [redacted text] captioned ‘Ernest Columbus Withers; CI.’” Another document released — “a search slip for documents concerning Withers dated from 1978” — had a handwritten note that read “Conf. Info.” The FBI argued that these terms “do not signify that Withers was a confidential informant,” but the court rejected this argument as “not worthy of serious consideration” and “insult[ing] the common sense of anyone who reads the documents.” The FBI then disclosed the information a second time, the court found, by attaching the records as exhibits to a court document filed in the public docket, especially as the document contained additional notes explaining that redactions to it were made under Exemption 7(D) — the exemption for confidential source information. Like the U.S. Court of Appeals for the Ninth Circuit, the court noted that “[t]he documents that supply that information were not leaked or disclosed by some other agency or a rogue employee.” The court also noted that “if the FBI did invoke the exclusion, it was done under less than compelling circumstances.” Specifically, the court pointed to the fact that the informant was deceased, and the FBI sought to apply the exclusion only to protect the informant’s descendants “from potential stigma or embarrassment” — “some of which ha[d] already come to pass as a result of previous media articles on the subject” — rather than “from danger or bodily harm” or “to avoid revealing the informant’s participation in an ongoing, legitimate criminal investigation that could be compromised.” Further, there were “serious questions surrounding the legitimacy of the investigation in which confidential informants were utilized” and a “substantial amount of time [had] elapsed since the investigation and the informant relationship were active.”

The court also rejected the FBI’s argument that it did not intend to release the information, and official confirmation had to be “intentional and not inadvertent.” “[T]he word confirmation simply means that a fact has been established, not that it was formally or purposefully announced,” the court explained. While noting that it was not adopting “a general principle that inadvertent disclosure will always constitute official confirmation,” the court listed several factors that made “the claim of inadvertence to be unavailing,” in that case, including the fact that the FOIA requests involved high profile matters and requests involving exclusions generally require an agency’s “highest level of care.” The court also pointed out that the FOIA request was narrow — giving the agency time to carefully review it — and some redactions had been made to the document, indicating that someone had actually reviewed it. Finally, as the court noted, the FBI did not “take any steps to retrieve the documents” or take “any of the remedial steps that ordinarily follow an inadvertent disclosure.”

Foreign intelligence, international terrorism
The third exclusion applies to requests for “access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism” where “the existence of the records is classified information” under Exemption 1. These terms are defined in Executive Order 12333 or in the Foreign Intelligence Surveillance Act as follows:
 * “Foreign intelligence” is defined as “information relating to the capabilities, intentions and activities of foreign powers, organizations or persons, but not including counterintelligence except for information on international terrorist activities.”
 * “Counterintelligence” is defined as “information gathered and activities conducted to protect against espionage, other intelligence activities, sabotage, or assassinations conducted for or on behalf of foreign powers, organizations or persons, or international terrorist activities, but not including personnel, physical, document or communications security programs.”
 * “International terrorism” is defined as “activities that (1) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or any State; (2) appear to be intended (A) to intimidate or coerce a civilian population; (B) to influence the policy of a government by intimidation or coercion; or (C) to affect the conduct of a government by assassination or kidnapping; and (3) occur totally outside the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum.”

However, the exclusion applies only “as long as the existence of the records remains classified information.”