Exemption 7(A)

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

Introduction

Assuming the record in question is “compiled for law enforcement purposes,”[1] an agency must also justify why its disclosure would implicate at least one of the six specified harms identified in Exemption 7. Exemption 7(A) generally concerns records that could interfere with enforcement proceedings.

Text of Exemption 7(A)

(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,

Applicability

Generally

Under this exemption, an agency must demonstrate that the records “relate to any ongoing investigation or . . . would jeopardize any future law enforcement proceedings.”[2] The government must make a greater showing of interference than a conclusory statement that “the withheld information was clearly related to (an ongoing investigation).”[3] In one case, the court found that documents related to James Comey met the standard for withholding under 7(A). [4] The court observed that "[I]n an ongoing criminal investigation such as the Special Counsel’s, the Government must be somewhat obscure in its public filings about the effect of disclosure so as not to risk spilling the very information it seeks to keep secure." [5]

Exemption 7(A) does not apply if the agency's investigation is not — or has ceased — “gather[ing] evidence for a possible future . . . case” that “would be jeopardized by the premature release of that evidence.”[6]

For example, a court held that the Department of Justice failed to make this showing when it attempted to withhold former Vice President Dick Cheney’s interviews from an FBI/Special Counsel investigation on the basis that their release could chill White House officials’ cooperation with future law enforcement investigations.[7] The agency conceded that there were no pending enforcement proceedings or ongoing investigations that would lead to such proceedings, but argued that such proceedings were “reasonably anticipated” because investigations “necessitating the cooperation of senior White House officials are likely to be instituted in the future.”[8] The court held that the DOJ did not meet its burden under Exemption 7(A), as it failed to “describe with any reasonable degree of particularity the subject matter of the hypothetical proceedings, the parties involved, when such proceedings might occur, or how the information withheld here might be used by these hypothetical parties to interfere with these hypothetical proceedings.”[9] As the court explained, requiring the agency to specify the connection between the documents and an “ongoing or anticipated” proceeding is consistent with the exemption’s purpose: “to prevent disclosures which might prematurely reveal the government’s cases in court, its evidence and strategies, or the nature, scope, direction, and focus of its investigations, and thereby enable suspects to establish defenses or fraudulent alibis or to destroy or alter evidence.”[10] For that reason, “once enforcement proceedings are either concluded or abandoned, exemption 7(A) will no longer apply to prevent disclosure.”[11]

However, even after one related proceeding ends, Exemption 7(A) may continue to apply where additional proceedings may arise. One example of this situation is where there is “[a] pending appeal of a criminal conviction,” as such an appeal “qualifies as a pending or prospective law enforcement proceeding” under Exemption 7(A).[12] Importantly, the proceeding must remain pending at the time of the court’s decision for the exemption to apply. [13] Similarly, if one proceeding has concluded, but there is a possibility that there may be additional law enforcement proceedings resulting from the investigation — such as charges against other suspects involved in the case — an agency may still be able to rely on the exemption.[14]

Where a case is old or has potentially gone cold, an agency may still be able to invoke Exemption 7(A) if it can show that its investigation is still ongoing, proceedings could still be instituted, and the release of the records could interfere with such proceedings.[15] For example, a court held that the FBI could withhold records related to its investigation of a missing person more than 15 years after his disappearance where the investigation was ongoing, as demonstrated by the fact that the FBI was continuing to allocate resources to that investigation.[16] The court also agreed that releasing the records could lead to harms such as witness intimidation.[17]

An agency's burden to withhold records is greater when the subject already has access to it.[18] In such situations, courts “must conduct a more focused and particularized review of the documentation on which the government bases its claim that” release of the record “would interfere with the investigation.”[19] For example, a court gave such additional scrutiny to an agency’s Exemption 7(A) claim where a requester sought only records that had been submitted to the agency by the subject of the investigation, a company for which he had previously worked.[20] The court reasoned that the government failed to explain how such information — submitted by the company itself — “could reveal the direction of the investigation to [the company] or alert it to anything it does not know already.”[21] Likewise, if possible, you should demonstrate that the subject of the investigation already possesses in some form the information contained in the record at issue, and therefore no harm to the proceeding could arguably result from the release of that information.

The exemption does not apply if the agency has already officially disclosed the information, such that it is now in the public domain. [22] But a court has held that documents leaked by others are not an “intentional public disclosure” and that an FBI agent’s testimony in a foreign court was not an official acknowledgement by the agency. [23]

Generic determinations

In cases involving Exemption 7(A) courts may make “generic determinations” that disclosing certain types of investigatory records would interfere with particular types of enforcement proceedings, rather than determining whether such “interference” would occur “on a case-by-case basis.”[24] The rationale is that 7(A) — unlike some of the other subsections of Exemption 7 — applies to “enforcement proceedings” generally.[25] In contrast, for example, Exemption 7(D) applies specifically to those investigatory records that relate to “a confidential source,” and therefore “seem[s] to require a showing that the factors made relevant by the statute are present in each distinct situation.”[26]

For example, in one Exemption 7(A) case, a court held that the FDA was not required to “justify its withholding of each and every document” requested from its investigation of a pharmaceutical company; instead, it only needed to demonstrate that releasing “the particular kinds of records” requested “would interfere with an actual or contemplated enforcement action.”[27] The court explained that the agency could “focus upon [the] categories of records encompassed by the request” and withheld, rather than providing “a document-by-document” response to the court.[28] However, the agency was still required to “demonstrate specifically how each document or category of documents, if disclosed, would interfere with the investigation.”[29]

The U.S. Court of Appeals for the District of Columbia Circuit has formulated a three-part test to determine when such generic determinations may be made for 7(A) claims. Under this test, “[t]he hallmark of an acceptable . . . category is . . . that it is functional; it allows the court to trace a rational link between the nature of the document and the alleged likely interference.”[30]

First, under this “functionality” test, the agency must define the categories of documents it is withholding “functionally.”[31] That is, the categories must be defined in a way that a reviewing court is able “to assess [the agency’s] representations of how release of the documents would result in interference” with enforcement proceedings.[32] Second, an agency seeking to withhold generic categories of records under Exemption 7(A) must “conduct a document-by-document review in order to assign documents to the proper category” under the functionality test.[33] Finally, the agency must “explain to the court how the release of each category would interfere with enforcement proceedings.”[34]

For example, where the FBI defined categories of withheld documents using descriptors that “define[d] the nature of the information contained,” such as “the identities of possible witnesses and informants” and “polygraph reports,” a court held that these were defined “functionally.”[35] However, it did not find that categories such as “teletypes” or “letters” met the functionality requirement, as such descriptors gave “absolutely no indication of the substance of the information contained,” and consequently, the court could not evaluate the FBI’s claims that their release would interfere with enforcement proceedings.[36] Because of this defect, the court held that the FBI “failed . . . to meet its burden of establishing that release of all of the retained documents would interfere with the” proceedings at issue.[37] Similarly, where the FBI described withheld documents as “internal FBI interview forms, FBI letters, and other evidentiary documentation,” the court held that the functionality requirement was not met and, subsequently, that the FBI had not shown how the release of the documents would harm an ongoing investigation. [38]

Strategies for challenging Exemption 7(A) withholdings

In challenging an Exemption 7(A) withholding, there are three main lines of attack. The first is to show that there is no longer an ongoing proceeding that would be jeopardized, e.g. because all appeals have been finalized. The second approach is to demonstrate that the subject of the investigation already possesses in some form the information contained in the record at issue, and therefore no harm to the proceeding could arguably result from the release of that information. Finally, if the agency has asserted a generic determination, a plaintiff can argue that the agency’s categories are not functional and that the agency has therefore not met its burden of showing harm.

Recent district court opinions on Exemption 7(A)

Recent district court cases regarding this topic from TRAC's FOIA Project. Visit their issue search page for more options.

References

  1. ↑ 5 U.S.C. § 552(b)(7)
  2. ↑ Nat’l Labor Relations Bd. v. Robbins Tire & Rubber Co., 437 U.S. 214, 235 (1978) (internal citation omitted)).
  3. ↑ Campbell v. Dep’t of Health & Human Servs., 682 F.2d 256, 259 (D.C. Cir. 1982) (quotingCampbell v. Dep’t of Health & Human Servs., 518 F.Supp. 1114, 1115 (D.D.C. 1981) (internal quotation marks omitted)).
  4. ↑ Cable News Network, Inc. v. Fed. Bureau of Investigation, 298 F. Supp. 3d 124, 129 (D.D.C. 2018), appeal dismissed, No. 18-5041, 2018 WL 4619108 (D.C. Cir. July 5, 2018).
  5. ↑ Id.
  6. ↑ Juarez v. Dep’t of Justice, 518 F.3d 54, 59 (D.C. Cir. 2008).
  7. ↑ Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 658 F.Supp.2d 217, 225, 228-29 (D.D.C. 2009).
  8. ↑ Id. at 226.
  9. ↑ Id.
  10. ↑ Id. at 229-30 (quoting Maydak v. U.S. Dep’t of Justice, 218 F.3d 760, 762 (D.C. Cir. 2000)).
  11. ↑ Barney v. I.R.S., 618 F.2d 1268, 1273-74 (8th Cir. 1980).
  12. ↑ Kidder v. F.B.I., 517 F.Supp.2d 17, 27 (D.D.C. 2007).
  13. ↑ Citizens for Resp. & Ethics in Washington v. U.S. Dep't of Just., 746 F.3d 1082, 1097 (D.C. Cir. 2014)
  14. ↑ Id. at 27-28.
  15. ↑ Dickerson v. Dep’t of Justice, 992 F.2d 1426, 1432-33 (6th Cir. 1993).
  16. ↑ Id.
  17. ↑ Id. at 1433.
  18. ↑ See Campbell, 682 F.2d at 265.
  19. ↑ Id.
  20. ↑ Id. at 259-60.
  21. ↑ Id. at 260.
  22. ↑ Am. C.L. Union of N. Cal. v. U.S. Dep't of Just., 880 F.3d 473, 491 (9th Cir. 2018).
  23. ↑ Ctr. for Investigative Reporting v. Fed. Bureau of Investigation, No. 19-CV-04541-LB, 2021 WL 633867, at *4 (N.D. Cal. Feb. 18, 2021)
  24. ↑ N.L.R.B., 437 U.S. at 223.
  25. ↑ Id.
  26. ↑ Id. at 223-24.
  27. ↑ Campbell, 682 F.2d at 263.
  28. ↑ Id. at 265.
  29. ↑ Id.
  30. ↑ Bevis, 801 F.2d at 1389 (quoting Crooker v. Bureau of Alcohol, Tobacco & Firearms, 789 F.2d 64, 67 (D.C. Cir. 1986)).
  31. ↑ Id. at 1389.
  32. ↑ Id. at 1390.
  33. ↑ Id. at 1389.
  34. ↑ Id. at 1389-90.
  35. ↑ Id.
  36. ↑ Id.
  37. ↑ Id. at 351.
  38. ↑ Reps. Comm. for Freedom of the Press v. Fed. Bureau of Investigation, 548 F. Supp. 3d 185, 207-08 (D.D.C. 2021).
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