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 identified in Exemption 7. Exemption 7(B) generally concerns records that, if released, would deprive a person of a right to a fair trial.
Text of Exemption 7(B)
(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 [...] (B) would deprive a person of a right to a fair trial or an impartial adjudication,
As the U.S. Court of Appeals for the District of Columbia has held, in order to withhold documents under Exemption 7(B), an agency must make a two-part showing.
First, the agency must demonstrate “that a trial or adjudication is pending or truly imminent.” In one case, a court held that the Department of Justice failed to put forth evidence to satisfy this requirement in seeking to withhold a report compiled by the directors of a pharmaceutical company. The court noted that criminal proceedings against the company were no longer “pending or imminent,” as the agency had accepted pleas from the company and its employee, and did not have plans for future indictments. Additionally, in trying to demonstrate “that a trial or adjudication [was] pending or truly imminent,” the agency and the company claimed that there were four civil cases pending related to the records.However, the court rejected this argument, finding that the agency and company only made “an unsupported assertion” of such litigation. The agency did not support its statement that such litigation was pending, but only deferred to the company’s statement that such litigation was pending. In turn, the company only indicated — without providing additional details — “that there was litigation pending.” Likewise, you should argue that the agency has not met its burden to show the existence of a specific “trial or adjudication.”
Second, the agency must show “that it is more probable than not that disclosure of the material sought would seriously interfere with the fairness of those proceedings.” Exemption 7(B)’s withholding threshold — “which requires that release ‘would’ deprive a person of fair adjudication” — is “higher” than for exemptions 7(A), (C), (F), which all state that records may be withheld if their release “could reasonably be expected to” cause a certain harm. For example, a court held that an agency had failed to demonstrate that disclosing a report compiled by a company that was purportedly involved in related civil litigation would necessarily “deprive [it] of a fair trial.” The court acknowledged that releasing the document could potentially “be expected to lead to publicity which was not just disadvantageous to [the company] but of a nature and degree that judicial fairness would be compromised,” or that it “would furnish access to a document not available under the discovery rules,” thereby giving one of the parties “an unfair advantage.” However, finding that the lower court had made insufficient findings on this point, the court remanded the case for a determination of whether such harms would occur.
As that court noted, citing a 1975 U.S. Attorney General memorandum, this exemption is designed to protect private persons’ and corporations’ rights at trial by preventing the release of records that could “confer an unfair advantage upon one party to an adversary proceeding or lead to prejudicial publicity in pending cases that might inflame jurors or distort administrative judgment.”
Strategies for challenging Exemption 7(B) withholdings
Recent district court opinions on Exemption 7(B)
- 5 U.S.C. § 552(b)(7)
- See Wash. Post Co. v. Dep’t of Justice, 863 F.2d 96, 102 (D.C. Cir. 1988).
- Id. at 98.
- Id. at 102.
- Id. at 102.
- Id. at 101 (quoting United States Department of Justice, Attorney General's Memorandum on the 1974 Amendments to the Freedom of Information Act 9 (1975), reprinted in House Comm. on Gov. Operations and Senate Comm. on the Judiciary, 94th Cong., 1st Sess., Freedom of Information Act and Amendments of 1974 Source Book, at 519 (1975)).