Exemption 7(E)

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

Introduction

To withhold information under Exemption 7(E), the government has the burden to establish the following:

  1. That the record in question is “compiled for law enforcement purposes,” which is the threshold requirement for Exemption 7 ;[1]
  2. That the information discloses either "techniques and procedures" or "guidelines" for law enforcement investigations or prosecutions; and
  3. That disclosure could reasonably risk circumvention of law. However, there is some disagreement among courts whether this showing must be made in the context of "techniques and procedures."

In addition, the government must satisfy the foreseeable harm standard.

Text of Exemption 7(E)

(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 [...]

(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

Applicability

To withhold records under Exemption 7(E), an agency must first establish that the record in question is “compiled for law enforcement purposes,” which is the threshold requirement for Exemption 7 to apply. Next, the government must also establish that the record is a type of information covered under Exemption 7(E). The exemption identifies two categories of information: (a) "techniques and procedures" or (b) "guidelines." Finally, the agency must show that the information, if disclosed, would reasonably be expected to "risk circumvention of the law."

Types of information covered under 7(E)

Law enforcement "techniques and procedures"

Under Exemption 7(E), the Second Circuit has defined “techniques and procedures” as referring to "how law enforcement officials go about investigating a crime."[2] Other courts have followed this definition, including the Eleventh Circuit[3] and some D.C. district courts.[4]

For example, one court found that a iPhone hacking tool used by the FBI qualified as a law enforcement technique.[5] The court observed that “releasing the vendor's identity could provide individuals with a recourse to discovering how to circumvent its use in the future.” The court also permitted the government to withhold the price of the hacking tool for the same reason.

Courts have also found the following to qualify as “techniques and procedures”:

  • Certain "specific" interviewing techniques[6]
  • Instructions to cooperating witnesses[7]
  • Amounts of money used to purchase evidence[7]
  • A comprehensive “library” of videos on the FBI's ballistics testing methods[8]
  • Computer forensic examination procedures[9]
  • Source code for background investigation forms[10]
  • FBI Manual section that details documents, records, and patterns of criminal activity related to transportation of obscene material[11]
  • Internal ratings of different investigatory techniques, even if some of the techniques themselves are publicly known[12]

Exemption 7(E) does not apply to techniques and procedures that are “routine” and “generally known to the public.”[13] As one court explained, these would include “techniques that are commonly described or depicted in movies, popular novels, stories or magazines, or on television.”[14] This includes, for example, “techniques such as eavesdropping, wiretapping, and surreptitious tape recording and photographing,” which “the government should release . . . to [the requester] voluntarily.”[14] Other examples of publicly known techniques include:

  • Use of post office boxes[15]
  • Pretext telephone calls[16]
  • Impersonation of journalists and documentary filmmakers[17]

However, agencies can use Exemption 7(E) to withhold the details of even commonly known techniques. For example, courts have allowed withholding of information regarding law enforcement’s use of social media,[18] reports identifying the "strengths and weaknesses of particular polygraph programs,"[19] body microphones,[20] specific aircraft used by the F.B.I.,[21] and how federal agents manage and search specific commercial databases.[22]

Law enforcement "guidelines"

According to the Second Circuit, the term “guidelines" in the Exemption 7(E) context "generally refers . . . to resource allocation."[23] The Second Circuit offered a helpful illustration: "For example, if a law enforcement agency concerned with tax evasion directs its staff to bring charges only against those who evade more than $100,000 in taxes, that direction constitutes a “'guideline.'”[23]

Courts have found the following qualify as “guidelines” for Exemption 7(E) purposes:

  • FBI guidelines and standards regarding social media investigations[24]
  • IRS settlement strategies[25]
  • Emergency action plans[26]

Other material not covered by Exemption 7(E)

Exemption 7(E) does not apply to “garden-variety legal analysis,” which includes discussion and digests of caselaw.[27] For example, the D.C. Circuit held that an agency could not rely on Exemption 7(E) to withhold portions of an agency manual that merely discussed case law and statutes related to obscenity.[28] The court reasoned that the agency’s explanation for why Exemption 7(E) applied — that the information would give defendants “a crystal ball view of what they will face from the prosecution” — was too vague.[29]

Risk of circumvention of the law

Circuit split over the circumvention prong

It is unambiguous from FOIA's text that agencies that seek to withhold law enforcement "guidelines" under Exemption 7(E) must also show that disclosure "could reasonably be expected to risk circumvention of the law."[30] Based on the grammatical structure of Exemption 7(E), however, courts are split on whether agencies must also satisfy the "risk of circumvention of the law" prong to withhold "techniques and procedures,” as well.

The D.C. Circuit has explicitly ruled that the government must satisfy the "risk of circumvention of the law" prong, regardless of the category of materials,[31] as has the Third Circuit.[32] The Fifth and Seventh Circuits have also applied the circumvention prong to techniques and procedures.[33] The Second Circuit and Ninth Circuits, meanwhile, applying a grammatical analysis, have found the circumvention prong "modifies only ‘guidelines’ and not ‘techniques and procedures.’”[34] The Eleventh Circuit declined to take a position on this issue.[35]

Application of the circumvention prong

If the circumvention prong applies, an agency seeking to withhold records under Exemption 7(E) must “logically” show how releasing the requested information would “create a risk of circumvention of the law.”[36] The D.C. Circuit has characterized this as a "relatively low bar," explaining: "Rather than requiring a highly specific burden of showing how the law will be circumvented, exemption 7(E) only requires that the [the agency] demonstrate logically how the release of the requested information might create a risk of circumvention of the law.”[37]

Despite this prong being a "relatively low bar," courts have found agencies failed to satisfy it. For example, the Ninth Circuit found portions of a prosecutors' manual on "how to lawfully obtain electronic location information" did not "present such a risk" of circumvention of the law, since the information "may be of use to a lawyer litigating against the agency, but it provides no relevant information that would assist criminals in conforming their behavior to evade detection or circumvent the law."[38]

Exemption 7(E) and the foreseeable harm standard

The foreseeable harm standard was added to FOIA in 2016, and it explicitly applies to all FOIA exemptions except for Exemption 3. It is not yet clear how Exemption 7(E) interacts with the foreseeable harm standard.[39]

No federal appeals court has addressed this issue. However, some district courts have concluded that, if Exemption 7(E) applies, "no further foreseeable harm analysis is needed," at least when the agency is required to satisfy the "risk of circumvention of the law" prong.[40]

Strategies for challenging Exemption 7(E) withholdings

One district court ruled against the government when it failed to be adequately specific as to the actual procedures "at stake."[41]

The U.S. District Court for the District of Columbia in Shapiro v. Department of Justice[42] declined to grant summary judgment to the government when the FBI failed to explain the "specific risk posed by disclosure of the file numbers" on records related to investigations that had been closed for a number of years. Specifically, the court "needed to know how long the investigations in question had been closed, and what about the particular case numbers made them especially sensitive, in order to determine whether disclosure of the file numbers might give rise to a risk of circumvention of the law, as required under Exemption 7(E)."[43] This indicates that where records may be purely historical in nature, an agency may have more difficulty alleging that a risk of circumvention is reasonably foreseeable.

Recent district court opinions on Exemption 7(E)

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. ↑ Allard K. Lowenstein International Human Rights Project v. Department of Homeland Security, 626 F.3d 678, 682 (2d Cir. 2010) (citing and quoting Webster's Third New International Dictionary (1986) (defining "technique" as "a technical method of accomplishing a desired aim"; and "procedure" as "a particular way of doing or of going about the accomplishment of something")).  
  3. ↑ Broward Bulldog, Inc. v. U.S. Dep't of Just., 939 F.3d 1164, 1191 (11th Cir. 2019).
  4. ↑ See, e.g., Reps. Comm. for Freedom of Press v. Fed. Bureau of Investigation, No. CV 17-1701 (RC), 2022 WL 13840088, at *8 (D.D.C. Oct. 21, 2022); Whittaker v. U.S. Dep't of Just., No. 18-cv-01434, 2019 WL 2569915, at *2 (D.D.C. June 21, 2019).
  5. ↑ See AP v. FBI, 265 F. Supp. 3d 82, 99 (D.D.C. 2017).
  6. ↑ Frank LLP v. Consumer Fin. Prot. Bureau, 480 F. Supp. 3d 87, 103 (D.D.C. 2020).
  7. ↑ 7.0 7.1 Amuso v. U.S. Dep’t of Just., 600 F. Supp. 2d 78, 100 (D.D.C. 2009).
  8. ↑ Nat'l Pub. Radio, Inc. v. Fed. Bureau of Investigation, 539 F. Supp. 3d 1, 13 (D.D.C. 2021), appeal dismissed, No. 21-5149, 2021 WL 3719349 (D.C. Cir. Aug. 3, 2021).
  9. ↑ Blackwell v. F.B.I., 646 F.3d 37, 42 (D.C. Cir. 2011).
  10. ↑ Sheridan v. U.S. Off. of Pers. Mgmt., 278 F. Supp. 3d 11, 22 (D.D.C. 2017) (Brown Jackson, J.).
  11. ↑ PHE, Inc. v. Dep't of Just., 983 F.2d 248, 251 (D.C. Cir. 1993).
  12. ↑ Petrucelli v. U.S. Dep’t of Just., 106 F. Supp. 3d 129, 138 (D.D.C. 2015).
  13. ↑ Rosenfeld v. U.S. Dep’t of Justice, 57 F.3d 803, 815 (9th Cir. 1995). See also Shapiro v. U.S. Dep't of Just., 153 F. Supp. 3d 253, 273 (D.D.C. 2016) ("[T]he purpose of Exemption 7(E) is to prevent the public from learning about the existence of confidential law enforcement techniques, not to prevent it from learning about the use of already-disclosed law enforcement techniques.").
  14. ↑ 14.0 14.1 Albuquerque Publ’g Co. v. U.S. Dep’t of Justice, 726 F.Supp. 851, 858 (D.D.C. 1989).
  15. ↑ Billington v. Dep't of Just., 69 F. Supp. 2d 128, 140 (D.D.C. 1999), aff'd in part, vacated in part sub nom. Billington v. U.S. Dep't of Just., 233 F.3d 581 (D.C. Cir. 2000).
  16. ↑ Rosenfeld v. U.S. Dep't of Just., 57 F.3d 803, 815 (9th Cir. 1995) ("It would not serve the purposes of FOIA to allow the government to withhold information to keep secret an investigative technique that is routine and generally known.").
  17. ↑ Reps. Comm. for Freedom of Press v. Fed. Bureau of Investigation, 369 F. Supp. 3d 212, 223 (D.D.C. 2019).
  18. ↑ Elec. Frontier Found. v. Dep't of Def., No. C 09-05640 SI, 2012 WL 4364532, at *5 (N.D. Cal. Sept. 24, 2012).
  19. ↑ Sack v. U.S. Dep't of Def., 823 F.3d 687, 694 (D.C. Cir. 2016) ( Kavanaugh, J.). See also Blanton v. U.S. Dep't of Just., 63 F. Supp. 2d 35, 50 (D.D.C. 1999) (“Because the specifics of polygraph procedures and techniques are not generally known to the public and because their disclosure would frustrate law enforcement, the FBI is not required to release the questions asked of Blanton and his recorded physical responses during his polygraph examination.").
  20. ↑ Sinito v. U.S. Dep't of Just., No. CIV.A. 87-0814 TFH, 2000 WL 36691372, at *14 (D.D.C. July 12, 2000), aff'd in part sub nom. Sinito v. Dep't of Just., 22 F. App'x 1 (D.C. Cir. 2001).
  21. ↑ BuzzFeed, Inc. v. Dep't of Just., 344 F. Supp. 3d 396, 407 (D.D.C. 2018).
  22. ↑ Shapiro v. United States Dep't of Just., 893 F.3d 796, 801 (D.C. Cir. 2018) ("Though the capabilities of Accurint might be known to the public, the FBI's methods of managing the database are generally not known.").
  23. ↑ 23.0 23.1 Allard K. Lowenstein Int'l Hum. Rts. Project v. Dep't of Homeland Sec., 626 F.3d 678, 682 (2d Cir. 2010).
  24. ↑ Elec. Frontier Found. v. Dep't of Def., No. C 09-05640 SI, 2012 WL 4364532, at *9 (N.D. Cal. Sept. 24, 2012).
  25. ↑ Mayer Brown LLP v. I.R.S., 562 F.3d 1190, 1193 (D.C. Cir. 2009).
  26. ↑ Pub. Emps. for Env't Resp. v. U.S. Section, Int'l Boundary & Water Comm'n, U.S.-Mexico, 740 F.3d 195, 205 (D.C. Cir. 2014) (Kavanaugh, J.).
  27. ↑ Mayer Brown LLP, 562 F.3d at 1194 n.1.
  28. ↑ PHE, Inc., 983 F.2d at 251-52.
  29. ↑ Id. at 252.
  30. ↑ 5 U.S.C. § 552(b)(7)(E).
  31. ↑ Pub. Employees for Env’t Resp. v. U.S. Section, Int'l Boundary & Water Comm'n, 740 F.3d 195, 204 n.4 (D.C. Cir. 2014); see also Advancement Project v. Dep’t of Homeland Sec., 549 F. Supp. 3d 128, 142 (D.C. Cir. 2021) (“A record must therefore meet three requirements to qualify for the exemption”).
  32. ↑ Davin v. U.S. Dep't of Just., 60 F.3d 1043, 1064 (3d Cir. 1995) ("Exemption 7(E) applies to law enforcement records which, if disclosed, would risk circumvention of the law.").
  33. ↑ Catledge v. Mueller, 323 F. App'x 464, 467 (7th Cir. 2009) (order); Benavides v. U.S. Marshals Serv., 990 F.2d 625 (5th Cir. 1993) (per curiam) (unpublished). See Riser v. U.S. Dep't of State, No. CIV.A. 09-3273, 2010 WL 4284925, at *5 (S.D. Tex. Oct. 22, 2010) (discussing the precedential weight of Benavides).
  34. ↑ Allard K. Lowenstein Int'l Hum. Rts. Project v. Dep’t of Homeland Sec., 626 F.3d 678, 681 (2d Cir. 2010); Hamdan v. U.S. Dep’t of Just., 797 F.3d 759, 778 (9th Cir. 2015).
  35. ↑ Broward Bulldog, Inc. v. U.S. Dep’t of Just., 939 F.3d 1164, 1194 (11th Cir. 2019).
  36. ↑ Mayer Brown LLP v. IRS, 562 F.3d 1190, 1194 (D.C. Cir. 2009) (quoting PHE, Inc. v. DOJ, 983 F.2d 248, 251 (D.C. Cir. 1993)).
  37. ↑ Mayer Brown LLP v. I.R.S., 562 F.3d 1190, 1194 (D.C. Cir. 2009) (cleaned up).
  38. ↑ Am. C.L. Union of N. California v. United States Dep't of Just., 880 F.3d 473, 492 (9th Cir. 2018). See also Families for Freedom v. U.S. Customs & Border Prot., No. 10 Civ. 2705(SAS), 2011 WL 6780896 at *8 (S.D.N.Y. Dec. 27, 2011).
  39. ↑ Reps. Comm. for Freedom of the Press v. United States Customs & Border Prot., 567 F. Supp. 3d 97, 127 (D.D.C. 2021), appeal dismissed, No. 21-5293, 2022 WL 801357 (D.C. Cir. Mar. 15, 2022) ("What an agency must do to show foreseeable harm under Exemption 7(E) is an open question.").
  40. ↑ Buzzfeed, Inc. v. U.S. Dep't of Homeland Sec., 610 F. Supp. 3d 139, 148 (D.D.C. 2022). See also Reps. Comm. for Freedom of the Press v. United States Customs & Border Prot., 567 F. Supp. 3d 97, 128 (D.D.C. 2021), appeal dismissed, No. 21-5293, 2022 WL 801357 (D.C. Cir. Mar. 15, 2022) ("The exemption's text thus already forces the agency to show some risk of harm."); 100Reporters v. United States Dep't of State, 602 F. Supp. 3d 41, 83 (D.D.C. 2022); Reps. Comm. for Freedom of the Press v. Fed. Bureau of Investigation, 548 F. Supp. 3d 185, 197 (D.D.C. 2021); Callimachi v. Fed. Bureau of Investigation, 583 F. Supp. 3d 70, 89 (D.D.C. 2022) ("So if the FBI has properly invoked Exemption 7(E), it has also carried its burden under the foreseeable harm requirement.").
  41. ↑ Advancement Project v. U.S. Dep't of Homeland Sec., 549 F. Supp. 3d 128, 146 (D.D.C. 2021).
  42. ↑ Shapiro v. Department of Justice, No. CV 13-555 (RDM), 2020 WL 7318014, at *7 (D.D.C. Dec. 11, 2020)
  43. ↑ Shapiro v. United States Department of Justice, No. CV 13-555 (RDM), 2020 WL 7318014, at *9 (D.D.C. Dec. 11, 2020).
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