Vol. V, No. 2
The Processing of Investigatory Records
One of the most important functions of federal agencies is the discharge of their statutory and regulatory law enforcement responsibilities. Such federal activities -- whether in the criminal, civil or regulatory arenas -- commonly involve agency investigations which require detailed law enforcement files. While the particular types of law enforcement records compiled vary considerably from agency to agency, they uniformly contain much of the government's most sensitive information.
As might be expected, the problems facing all FOIA processors of law enforcement records share common characteristics, but also vary according to the specific circumstances of each agency's particular law enforcement agenda. A brief look at the investigatory records processing practices of three very different agencies -- the Federal Bureau of Investigation, the Environmental Protection Agency, and the Nuclear Regulatory Commission -- gives an overview of FOIA processing concerns in the law enforcement area.
At the Federal Bureau of Investigation, the nation's leading criminal law enforcement agency, three major areas of concern frequently arise in disclosure determinations under Exemption 7 of the FOIA: the protection of confidential sources, the protection of third-party privacy, and the protection of secret investigatory techniques.
"Sometimes a journalist or researcher will request records about a living person. In the absence of an overriding public interest, prior official confirmation of an FBI investigation of that person, or his or her notarized authorization, we refuse to either confirm or deny the existence of an FBI file," says James K. Hall, Chief of the FOI/PA Section at the FBI.
"In fact, the Seventh Circuit Court of Appeals just recently upheld our practice in Antonelli v. FBI [721 F.2d 615 (7th Cir. 1984)]. We take this position because even the mention of a person's name in an FBI file may damage a reputation or cause embarrassment," Hall adds.
"However, when a researcher or journalist requests information about wrongdoing by a public official, the balancing standard tips more toward disclosure," explains Hall. "The public has a right to information which concerns an official's ability to do his job. Similarly, if the request is for records concerning a criminal prosecution, we would of course admit the existence of our investigation and only protect private personal information not already known."
Hall also points out that the FBI almost always withholds witness statements. "For example, we may receive a FOIA request for the transcript of an FBI interview with a bank teller following a robbery. We may continue to assert Exemption 7(C) and the second clause of Exemption 7(D) even after the witness has testified in court."
Because the FBI makes extensive use of confidential sources, the utmost care is always taken to protect their identities. "When a person with a criminal history requests his own FBI files, an unusual Catch-22 problem can arise," says Hall. "The problem is that FOIA requires the agency to state the basis for withholding information. There is always the danger that when an agency asserts Exemption 7(D), the requester will be able to identify a confidential source by using his unique insight into the nature of the excised material."
Finally, Hall emphasizes the importance of protecting the secrecy of FBI investigative techniques. The general existence of several of its investigatory techniques is widely known. Therefore, the mere mention of electronic surveillance, wiretaps, or surreptitious photopgraphy is not in and of itself necessarily harmful.
"However," notes Hall, "this can change drastically within the context of a particular case. Disclosure is harmful when a unique technique is mentioned in connection with a particular type of violation. If a potential lawbreaker knows that the FBI follows certain routine steps in monitoring bank security, he can use that knowledge to commit offenses and avoid detection."
The Environmental Protection Agency is responsible for the enforcement of such statutes as the Clean Air Act and the Clean Water Act and with the disbursement of "Superfund" monies to combat hazardous waste pollution. EPA generates investigatory records in carrying out its enforcement responsibilities under each of these statutes. Whether it will release investigatory records often depends on the exact stage at which its enforcement activity stands at the time of a request.
"Documents containing technical information related to routine compliance monitoring are generally available to the public," says Thomas A. Darner, EPA's Assistant General Counsel for Contracts and Information Law. "But once EPA identifies a potential violation, we usually withhold investigatory documents in order to prevent interference with any potential or pending enforcement action."
For example, EPA prepares case status reports listing companies under investigation for unauthorized discharge of effluent material. EPA withholds these reports under Exemption 7(A) of the FOIA, because premature release would likely interfere with the effectiveness of its ongoing enforcement efforts.
This nondisclosure position necessarily changes with the passage of time, however. "Once an enforcement action is concluded, EPA is willing to release investigative documents unless release would interfere with other related enforcement proceedings," says Darner.
At the NRC, essentially three different offices perform investigations and/or inspections on a routine basis.
The Office of Inspection and Enforcement at the Nuclear Regulatory Commission conducts routine inspections of nuclear facilities and prepares written reports on such inspections. These inspection reports are regularly available in the NRC's public reading rooms.
"However, sometimes an employee at a nuclear facility or at a construction site informs us of a potential safety violation -- that welds were performed in a substandard manner, or that subgrade steel is being used, or that required radiation tests were not performed," says C. Sebastian Aloot, Senior Attorney in the NRC's Office of the General Counsel. "In such cases, the Office of Investigation routinely performs an investigation. Until this investigation is completed and appropriate enforcement action has been taken, these investigative reports are withheld under Exemption 7(A)," he says.
"Once that exemption is no longer applicable, however, the agency must be concerned with other sensitive aspects of the information. Even after the report has been released, the NRC seeks to protects the confidential source and the names of third parties who were interviewed as part of the investigative effort under Exemptions 7(C) and 7(D)," Aloot emphasizes.
Aloot goes on to describe a third agency office which performs investigations -- the Office of the Inspector and Auditor. This office, which acts as the agency's Inspector General, performs internal investigations of employee misconduct. Again, the investigation reports are withheld until the enforcement action has been terminated.
Go to: FOIA Update Home Page