Exemption 7(E)

Provided by The Reporters Committee for Freedom of the Press
Jump to: navigation, search
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(E) generally concerns records on techniques, procedures, and guidelines for law enforcement investigations and prosecutions.

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

7(E) covers methods used by law enforcement agencies to search through databases, even if those databases are public. [2] The court observed that the FBI may “withhold records under Exemption 7(E) on the basis that releasing them would provide information on how a database is "searched, organized and reported."”[3]

The definition of “technique,” for purposes of Exemption 7(E), includes iPhone hacking. In one case, the court refused to compel disclosure of an iPhone hacking tool in the context of a terrorism investigation. [4] 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.” [5] The court also permitted the government to withhold the price of the hacking tool for the same reason. [6]

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.”[7] For example, one court held that U.S. Customs and Border Protection failed to explain how releasing its official definition of types of transit nodes or its historical staffing statistics could be expected to risk circumvention of the law.[8]

Exemption 7(E) does not apply to “garden-variety legal analysis,” which includes discussion and digests of caselaw.[9] For example, the U.S. Court of Appeals for the District of Columbia 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.[10] 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.[11]

Additionally, Exemption 7(E) does not apply to those investigative techniques that are “routine” and “generally known to the public.”[12] As one court explained, these would include “techniques that are commonly described or depicted in movies, popular novels, stories or magazines, or on television.”[13] 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]

The exemption also does not apply to materials within the scope of 5 U.S.C. § 552(a)(2), such as administrative staff manuals.[15]

Strategies for challenging Exemption 7(E) withholdings

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. Shapiro v. Dep’t of Justice, No. 17-5122, 2018 U.S. App. LEXIS 17335 (D.C. Cir. Jun. 26, 2018).
  3. Id. (citation omitted).
  4. See AP v. FBI, 265 F. Supp. 3d 82, 99 (D.D.C. 2017).
  5. Id.
  6. Id at 99-100.
  7. 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)).
  8. 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).
  9. Mayer Brown LLP, 562 F.3d at 1194 n.1.
  10. PHE, Inc., 983 F.2d at 251-52.
  11. Id. at 252.
  12. Rosenfeld v. U.S. Dep’t of Justice, 57 F.3d 803, 815 (9th Cir. 1995).
  13. Albuquerque Publ’g Co. v. U.S. Dep’t of Justice, 726 F.Supp. 851, 858 (D.D.C. 1989).
  14. Id.
  15. See 5 U.S.C. § 552(a)(2).