- 1 Introduction
- 2 Text of Exemption 7(C)
- 3 Applicability
- 4 Strategies for challenging Exemption 7(C) withholdings
- 5 Recent district court opinions on Exemption 7(C)
- 6 References
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(C) concerns records that, if released, would be an unwarranted invasion of personal privacy.
Text of Exemption 7(C)
(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 [...] (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy,
General scope and relation to Exemption 6
Like Exemption 6, Exemption 7(C) requires an agency to weigh the privacy interest in withholding records against the public interest in their release. For that reason, as one court has stated, “[t]he privacy inquiries under Exemptions 6 and 7(C) are ‘essentially the same.’” Agencies often invoke both Exemptions 6 and 7(C) in denying requests where law enforcement records are concerned.
However, there are some key differences between Exemption 6 and Exemption 7(C). Exemption 7(C)’s withholding threshold is lower than Exemption 6, as it prevents the release of records that could result in an unwarranted personal privacy invasion, rather than those that would result in such an invasion. Further, while Exemption 6 requires an agency to show that release would result in a “clearly unwarranted invasion of personal privacy,” that modifier — “clearly” — does not appear in Exemption 7(C). Instead, 7(C) uses the term “reasonably be expected to.”
Consequently, where an agency invokes both Exemptions 7(C) and 6 to justify withholdings and law enforcement records are at issue, an agency may decline to rely on (and a court may decline to analyze) the Exemption 6 claim since “[t]he balancing under Exemption 7(C) is more protective of privacy interests than under Exemption 6 . . . and because Exemption 7(C) is broader than Exemption 6.”
Under 7(C), “[t]he preliminary question is whether” an individual’s interest in nondisclosure of the records is a “personal privacy” interest protected by the exemption. For purposes of this exemption — like Exemption 6 — the third party must have “more than a de minimis privacy interest” that would be compromised by the release of the requested material.
Factors that reduce/strengthen the privacy interest
As with Exemption 6, the following factors — among others — may minimize or increase the privacy interest at issue.
- Possibility of retaliation/embarrassment: a “substantial” privacy interest will be more likely found if disclosure of the information would potentially lead to some form of retaliation or embarrassment.According to courts, Exemption 7(C) “recognizes the stigma potentially associated with law enforcement investigations,” and therefore “affords broader privacy rights to suspects, witnesses, and investigators.”
- Corporations: Corporations as an entity cannot claim a “personal privacy” right for the purposes of Exemption 7(C). However, individuals within a corporation may claim such a right personal to them.
- Possibility of media contact: Courts have also recognized individuals’ privacy interest in avoiding unwanted media contact that could result from the release of records where the individuals are only incidentally connected to a high-profile criminal matter.
- Publicly available information: There is generally a diminished privacy interest in information that is already publicly available. However, as with Exemption 6, compilations of such publicly available information may receive heightened privacy rights under a doctrine known as “practical obscurity.”
- Public figures/officials: Public figures and public officials, such as government employees, “have a somewhat diminished privacy interest,” although they do not relinquish all such interests by virtue of their position. Generally, lower-level government employees are granted stronger privacy rights than high-level employees. If the records would reveal “official misconduct,” this is another factor that diminishes a government employee’s privacy interests.
- Deceased individual: The fact that the subject of the records is deceased diminishes the privacy interests under Exemption 7(C). However, the U.S. Supreme Court has held that surviving family members have privacy rights under Exemption 7(C) in “the disclosure of graphic details surrounding their relative's death.”
- Passage of time: Depending on the circumstances, highlighting the passage of time may in some cases reduce the privacy interest in the records. As one court stated, “for some, the privacy interest may become diluted by the passage of time, though under certain circumstances the potential for embarrassment and harassment may also endure.” For example, a court found an insubstantial privacy interest in the disclosure of photographs of a murder victim’s body where the events occurred 25 years prior and the government had not shown that there were any surviving relatives or — if there were any — “that they would be offended by the disclosure.” In contrast, a court held that the passage of time did not “diminish the privacy interest at stake” of individuals mentioned in a McCarthy-era FBI investigation file that was at least 35 years old, noting that there was still “division and volatility of public opinion on these matters.”
Examples where privacy interest recognized/not recognized
Courts have recognized a privacy interest under Exemption 7(C) for information/records such as:
- The names and addresses of individuals from whom the U.S. Customs and Border Protection seized property where releasing this information “would automatically associate the individuals with . . . law enforcement proceedings and possibly cause comment, speculation and opprobrium” and could be used by others for solicitation purposes.
- The identities of “informants, witnesses, and potential suspects” tied to a Secret Service investigation of computer fraud, as the court held that the individuals had an interest in avoiding being connected to possible criminal activity.
- The names of employees and witnesses who participated in an Occupational Safety and Health Administration investigation into whether a company had committed health and safety violations.
- Mug shots, in some jurisdictions. Circuit courts of appeal are divided on whether mug shots carry a privacy interest. While the U.S. Courts of Appeals for the 10th and 11th Circuits have recognized a privacy interest in such photos, the 6th Circuit has held that no such privacy rights are implicated by their release. Therefore, in requesting federal mug shots from the U.S. Marshals Service, you should make your request from within the geographic bounds of the 6th circuit, which includes Kentucky, Michigan, Ohio, and Tennessee.
In contrast, courts have recognized minimal or no Exemption 7(C) privacy interest in records such as:
- The names and addresses of individuals who purchased property from the government that had been seized by federal law enforcement agencies, as the purchasers “voluntarily cho[se] to participate in the purchase of property from the United States government in a wholly legal commercial transaction,” and therefore had “little to fear in the way of ‘harassment, annoyance, or embarrassment.’”
- The docket information from cases of individuals who were convicted of federal offenses and were subject to warrantless cell phone tracking by the government in relation to the cases, as this information “was already publicly available” and therefore “would not compromise much more” than a de minimisprivacy interest.
- The names of the investigators and postal inspectors involved in a U.S. Postal Service investigation involving some agency employees, as the agency failed to provide factual evidence to support its claim that the release of the names in that case could lead to “harassment, intimidation, or physical harm.”
- General physical descriptions of two police officers who were fined by the U.S. Customs Service for smuggling steroids into the country, as 1) public officers have a diminished privacy interest, 2) this was not “particularly personal” information, and 3) the agency did not show that releasing this information would subject them to danger or harassment.
As with Exemption 6, Exemption 7(C) incorporates a balancing test that weights legitimate privacy interests against the public interest in the records.
The public interest in disclosure must significant — one “more specific than having the information for its own sake” — and that release of the information will “likely advance that interest.” Perhaps most importantly, “[t]he only relevant public interest in the FOIA balancing analysis” is “the extent to which disclosure of the information sought would ‘she[d] light on an agency’s performance of its statutory duties’ or otherwise let citizens know ‘what their government is up to.’”
Where disclosure will inform an ongoing public policy discussion] regarding the topic of the records, this will increase the public interest in release.
If the information would confirm or refute allegations of government wrongdoing or negligence], this generally elevates the public interest, but the requester must “produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.”
Examples of sufficient/insufficient public interest
Examples where courts have found a public interest sufficient to override a privacy interest under Exemption 7(C) include:
- An internal investigation report from the Department of Homeland Security containing the identities of agents and third parties interviewed or mentioned in connection with an agency immigration raid that allegedly involved racial profiling, given the public interest in knowing whether such improprieties had occurred. To support the allegation of potential wrongdoing, the requester submitted affidavits from arrestees, declarations of ICE agents, and statements in an ICE report — all which suggested racial profiling had occurred.
- The name of an FBI special agent who was investigated by the agency for participating in a cover-up of illegal surveillance activities, as “[the public has a great interest in being enlightened about that type of malfeasance by this senior FBI official.”
- Information on cases in which defendants were subject to warrantless cell phone tracking and were convicted or pleaded guilty at trial, as disclosure would contribute to the public discussion on the government’s use of such tracking. The court found a demonstrated public interest in the subject based on the “widespread media attention” to it, as well as the fact that the topic was then being addressed by courts and Congress.
- The identity of an undercover Department of Agriculture investigator who reported a convenience store manager’s alleged violation of food stamp regulations, where any privacy interest was diminished by the fact that the agent’s name could be discovered in civil litigation brought against the agency. Further, the public interest outweighed any privacy interest because the agent’s actions “could have, and in this case did have, very severe consequences” as the manager was fired. There was also evidence “that the investigator's reports were inconsistent and may have been unreliable,” and “[w]here it appears that the motives or truthfulness of the investigator are in doubt, the public need for supervision and disclosure is necessarily heightened.”
Examples where courts have not found a public interest sufficient to override a privacy interest under Exemption 7(C) include:
- Records that contained the names of individuals who carried out or cooperated with an FBI investigation into the records requester himself, a member of an organized crime family, where the asserted public interest was that the records might prove his innocence, substantiate his allegations of government misconduct in his criminal prosecution, and serve “the public’s interest in the administration of criminal justice and assuring that the innocent are not wrongfully convicted and confined.” The court found that the requester’s “position in the hierarchy of a particularly influent and violent” family was “highly material to the protection of individual privacy interests” — as the individuals could face harassment or retaliation — and his allegations of government misconduct were “unfounded.”
- Identifying information, including names, contained in records from a Department of Justice Civil Rights Division investigation of two Puerto Rican police officers’ killing of two political activists. The individuals — the subjects of the investigation, potential defendants in prosecutions, witnesses who provided information to the government, the translator at the related grand jury proceedings, and participating FBI agents — had a “substantial” privacy interest in avoiding “embarrassment and potentially more serious reputational harm,” harassment, or stigma from their association with the investigation. The court found this privacy interest outweighed the public interest asserted by the Puerto Rican Senate, which requested the records for “its general interest in ‘getting to the bottom of’” the incident.
- The identities of Guantanamo Bay detainees who were allegedly abused by U.S. military personnel or other detainees, as the court found that releasing their names “could certainly subject them to embarrassment and humiliation.” The court held that this privacy interest outweighed the asserted public interest in “provid[ing] context for DOD’s response to the abuse allegations” by revealing the detainees’ nationalities and religions, and allowing the public to both “evaluate DOD's other actions with respect to these detainees” and “seek out the detainees’ side of the story.”
- The identities of individuals who were involved in a Secret Service and FBI investigation of an alleged plot of a former regime of the Dominican Republic to assassinate or kidnap members of the Kennedy family. The requester, a historian, asserted that the public interest was that release could “shed light on a plot by the agents of” that political regime. The court noted that he did not — as required under FOIA — assert a public interest in the activities of the U.S. government, and such an interest did not outweigh the individuals’ “strong privacy interest” in avoiding the disclosure of the fact that they were “persons of investigatory interest” or “innocent third parties mentioned in law enforcement reports.” Further, named law enforcement personnel had “a strong [privacy] interest because of the potential for harassment.”
Strategies for challenging Exemption 7(C) withholdings
Recent district court opinions on Exemption 7(C)
- 5 U.S.C. § 552(b)(7)
- Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec., 598 F.Supp.2d 93, 96 n.1 (D.D.C. 2009).
- Prison Legal News v. Exec. Office for U.S. Attorneys, 628 F.3d 1243, 1247 n.4 (10th Cir. 2011).
- U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 762 (1989).
- Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, No. 11-754(GK), 2012 WL 45499 at *4 (D.D.C. Jan. 10, 2012); Am. Civil Liberties Union v. U.S. Dep’t of Justice, 655 F.3d 1, 12 (D.C. Cir. 2011).
- Associated Press v. U.S. Dep’t of Def., 554 F.3d 274, 286 (2d Cir. 2009) (citing U.S. Dep’t of State v. Ray, 502 U.S. 164, 176-77 (1991)).
- Bast v. U.S. Dep’t of Justice, 665 F.2d 1251, 1254 (D.C. Cir. 1981).
- F.C.C. v. AT&T Inc., 131 S.Ct. 1177, 1185 (2011).
- L'ahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 976-77 (9th Cir. 2009), cert. denied, 130 S.Ct. 3493 (2010).
- Am. Civil Liberties Union, 655 F.3d at 12.
- Reporters Comm. for Freedom of the Press, 489 U.S. at 757, 763-64.
- Citizens for Responsibility & Ethics in Wash., 2012 WL 45499 at *6.
- Forest Serv. Emps. for Envt’l Ethics, 524 F.3d at 1025-26.
- Lissner v. U.S. Customs Serv., 241 F.3d 1220, 1223 (9th Cir. 2001).
- Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003).
- Favish, 541 U.S. at 170.
- Davin v. U.S. Dep’t of Justice, 60 F.3d 1043, 1058 (3d Cir. 1995).
- Outlaw v. U.S. Dep’t of Army, 815 F.Supp. 505, 506 (D.D.C. 1993)
- King v. U.S. Dep’t of Justice, 210, 226, 233-34 (D.C. Cir. 1987).
- Seized Property Recovery Corp. v. U.S. Customs & Border Prot., 502 F.Supp.2d 50, 57-8 (D.D.C. 2007).
- Computer Prof’ls for Soc. Responsibility v. U.S. Secret Serv., 72 F.3d 897, 904 (D.C. Cir. 1996).
- Cuccaro v. Sec’ty of Labor, 770 F.2d 355, 359-60 (3d Cir. 1985).
- World Pub. Co. v. U.S. Dep’t of Justice, 672 F.3d 825, 831-32 (10th Cir. 2012).
- Karantsalis v. U.S. Dep’t of Justice, 635 F.3d 497, 501 (11th Cir. 2011), cert. denied, 132 S.Ct. 1141 (2012).
- See Detroit Free Press v. Dep’t of Justice, 73 F.3d 93, 97 (6th Cir. 1996).
- Baltimore Sun v. U.S. Marshals Serv., 131 F.Supp.2d 725, 729 (D. Md. 2001).
- Am. Civil Liberties Union, 655 F.3d at 11-12.
- United Am. Fin., Inc. v. Potter, 667 F.Supp.2d 49, 60, 63-64 (D.D.C. 2009).
- Lissner, 241 F.3d at 1222-24.
- Favish, 541 U.S. at 172.
- U.S. Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 497 (1994) (quoting Reporters Comm. for Freedom of the Press, 489 U.S. at 773).
- See Casa de Maryland, Inc. v. U.S. Dep’t of Homeland Sec., No. 10-1264, 2011 WL 288684 at *3-4 (4th Cir. Jan. 31, 2011).
- Favish, 541 U.S. at 174.
- Casa de Maryland, Inc., 2011 WL 288684 at *3-4.
- Stern, 737 F.2d at 93-4.
- Am. Civil Liberties Union, 655 F.3d at 12.
- Id. at 12-13.
- Castaneda v. United States, 757 F.2d 1010, 1012 (9th Cir. 1985).
- Manna v. U.S. Dep’t of Justice, 51 F.3d 1158, 1166 (3d Cir. 1995).
- Senate of the Commonwealth of Puerto Rico v. U.S. Dep’t of Justice, 823 F.2d 574, 577-78, 588 (D.C. Cir. 1987).
- Id.at 588.
- Associated Press v. U.S. Dep’t of Def., 554 F.3d 274, 287 (2d Cir. 2009).
- Id. at 289.
- Fitzgibbon v. U.S. Secret Serv., 747 F.Supp. 51, 54, 59 (D.D.C. 1990).
- Id. at 59.