- This article is part of a series on Exemptions
Exemption 7 generally allows the government to withhold information compiled for law enforcement purposes if its release could result in one or more of six specific kinds of harm detailed in the exemption.
Text of Exemption 7
(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
- (A) could reasonably be expected to interfere with enforcement proceedings,
- (B) would deprive a person of a right to a fair trial or an impartial adjudication,
- (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy,
- (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source,
- (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, or
- (F) could reasonably be expected to endanger the life or physical safety of any individual;
Threshold Requirement: "Compiled for Law Enforcement Purposes"
Records are “compiled for law enforcement purposes” if they “were compiled for adjudicative or enforcement purposes” related to the enforcement of criminal and civil laws. This requirement is not limited to federal laws as courts have accepted investigations of crimes under foreign and state law enforcement proceedings as satisfying this requirement.
Generally, an agency that does not have law enforcement powers cannot invoke Exemption 7.  For example, the U.S. Court of Appeals for the District of Columba has held that records from a CIA investigation were not “compiled for law enforcement purposes” because the law creating the CIA — the National Security Act of 1947 — specifically provides that the agency has no law enforcement powers.
However, federal appeals courts are split on how to determine whether records are “compiled for law enforcement purposes.” The First, Second, Sixth, Eighth, and Tenth Circuit Courts of Appeal have ruled that records from law enforcement agencies, such as the FBI and Bureau of Prisons, areper se — that is, assumed to be — “compiled for law enforcement purposes,” reasoning that the phrase describes “the type of agency” to which the exemption applies. In these circuits, “agencies whose primary function is not law enforcement” may still “rely on Exemption 7.” With respect to these agencies, at least one federal appeals court has explicitly declined to provide a “theory as to which burden such agencies bear in establishing that records or information were compiled for law enforcement purposes.” The law remains somewhat unclear as to how “per se” jurisdictions handle the question of what constitutes a “law enforcement purpose” where the agency at issue is one whose primary function is not law enforcement. In such cases, however, the logic of the rational nexus test may provide an effective argument.
In contrast, the District of Columbia, Third, and Ninth Circuit Courts of Appeal have adopted a two-part “rational nexus test” to determine if a record was “compiled for law enforcement purposes.” First, the investigatory activity giving rise to the documents must relate “to the enforcement of federal laws or to the maintenance of national security.” To demonstrate this, the agency must identify both “a particular individual or a particular incident as the object of its investigation and the connection between that individual or incident and a possible security risk or violation of federal law.” This requires the agency to establish that it “acted within its principal function of law enforcement, rather than merely engaging in a general monitoring of private individuals' activities.” However, law enforcement purposes include “proactive steps designed to prevent criminal activity and to maintain security,” not just investigation and enforcement of past criminal activity.
The agency must also establish the nexus between that investigation and one of its law enforcement duties through “information sufficient to support at least ‘a colorable claim’ of its rationality.” That is, the agency must provide more than a “pretextual or wholly unbelievable” basis for that connection, although it is not necessarily required that the investigation lead to an enforcement proceeding.Additionally, if the claim of “law enforcement purpose” is being made by a criminal law enforcement agency, courts “may apply a more deferential attitude toward” that agency’s claim.
In 2018 Ninth Circuit rejected the argument that guidelines relating only generally to investigative activity, as opposed to records specific to individual investigations, cannot constitute records that are "compiled for law enforcement purposes" under Exemption 7. It held with regard to such law enforcement-produced guidelines that "the government need not link the document to the enforcement of a particular statute in order to claim the protection of Exemption 7. Rather, the agency need only establish a rational nexus between the withheld document and its authorized law enforcement activities.
Where an agency conducts an internal investigation of its “own activities and employees,” you may argue that it engaged in “general internal monitoring of its own employees to insure compliance with the agency’s statutory mandate and regulations,” rather than “for a law enforcement purpose” as required under Exemption 7.
If an agency’s investigation of its employees does not focus “directly on specifically alleged illegal acts, illegal acts of particular identified officials, acts which could, if proved, result in civil or criminal sanctions,” then it does not meet the “law enforcement purpose” requirement. That is, an agency cannot rely on Exemption 7 for investigations intended to determine “whether to discipline employees for activity which does not constitute a violation of law.”
Harm from Disclosure
Assuming the record in question is “compiled for law enforcement purposes,” an agency must also justify why its disclosure would implicate at least one of the six specified harms discussed below. Visit these pages for more information about the sub-parts of Exemption 7:
- Exemption 7(A): interference with law enforcement proceedings
- Exemption 7(B): deprivation a right to a fair trial or an impartial adjudication
- Exemption 7(C): unwarranted invasion of personal privacy
- Exemption 7(D): confidential sources
- Exemption 7(E): law enforcement techniques and procedures
- Exemption 7(F): endanger the life or physical safety of any individual
Recent district court opinions on Exemption 7
- 5 U.S.C. § 552(b)(7).
- Stern v. F.B.I., 737 F.2d 84, 88-9 (D.C. Cir. 1984).
- See Bevis v. Dep’t of State, 801 F.2d 1386, 1388 (D.C. Cir. 1986).
- Weissman v. CIA, 565 F.2d 692, 695-96 (D.C. Cir. 1977).
- Irons v. Bell, 596 F.2d 468, 474-76 (1st Cir. 1979).
- Ferguson v. F.B.I., 957 F.2d 1059, 1070 (2d Cir. 1992).
- Jones v. F.B.I., 41 F.3d 238, 245-46 (6th Cir. 1994).
- 9 Kuehnert v. F.B.I., 620 F.2d 662, 666-67 (8th Cir. 1980).
- Jordan v. U.S. Dep’t of Justice, 668 F.3d 1188, 1195-97 (10th Cir. 2011), cert. denied, 132 S.Ct. 2400 (2012).
- Irons, 596 F.2d at 474.
- Jordan, 668 F.3d at 1197 n.5.
- Pratt v. Webster, 673 F.2d 408, 419-21 (D.C. Cir. 1982); PEER v. U.S. Section, Int'l Boundary & Water Comm'n, U.S.-Mexico, 740 F.3d 195, 203 (D.C. Cir. 2014).
- Abdelfattah v. U.S. Dep’t of Homeland Sec., 488 F.3d 178, 184-86 (3d Cir. 2007).
- Church of Scientology v. U.S. Dep’t of Def., 611 F.2d 738, 748 (9th Cir. 1979).
- Pratt, 673 F.2d at 420.
- PEER, 740 F.3d at 203, quoting Milner v. Department of the Navy, 562 U.S. 562, 583 (2011) (Alito, J., concurring) (“Likewise, steps by law enforcement officers to prevent terrorism surely fulfill 'law enforcement purposes.'")
- Id. at 421.
- Id. at 418.
- "Am. Civil Liberties Union of N. Cal. v. F.B.I.", 881 F.3d 776, 780 (9th Cir. 2018).
- Stern, 737 F.2d at 89.
- Id. (quoting Rural Housing Alliance v. U.S. Dep’t of Agric., 498 F.2d 73, 81 (D.C. Cir. 1974) (internal quotation marks omitted)).
- Stern, 737 F.2d at 90.