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Exemption 7A

Court of Appeals Decisions

Van Bilderbeek v. DOJ, No. 10-12416, 2011 WL 118247 (11th Cir. Jan. 14, 2011) (per curiam). The Eleventh Circuit affirms the district court's grant of summary judgment to government on the basis that the records at issue were properly withheld pursuant to Exemption 7(A). Applying a two-part test, the Circuit first examines whether "'the district court had an adequate factual basis' to determine that the documents were exempt" and, then, determines "if 'the decision reached by the district court was clearly erroneous.'" In response to the appellant's challenge to the reliability of the DEA's affidavit, the Circuit finds that "district court did not err by relying on the statements in [DEA's] declaration" where the declarant first learned of the investigation from "'the lead DEA agent,'" but "provided first-hand information about the documents and the sensitive nature of their contents." Additionally, the Circuit finds that "[t]he district court also did not clearly err in finding that [DEA] had a plausible basis to investigate the [plaintiffs]." The Circuit points to evidence indicating that plaintiffs were involved in drug trafficking and money laundering and further notes that the three affidavits submitted by plaintiffs "do not establish that the investigation was unfounded."

The Eleventh Circuit also concludes that DEA's "declaration provided a sufficient factual basis for the district court to determine that the documents were exempt from disclosure." The Circuit notes that DEA's affidavit "identified in detail the contents of the records and documents, which provided insight into the types of information in particular documents and the close proximity of information that made the documents non-segregable" as well as explained how disclosure of certain information "would not only hamper the investigation but also endanger the individuals identified in the documents." The Circuit also points out that DEA "did not seek to withhold all documents found in [plaintiffs'] investigatory files," but rather released two pages which it determined would not interfere with the investigation.

Batton v. Evers, No. 08-20724, 2010 WL 625988 (5th Cir. Feb. 24, 2010) (Haynes, J.). The court finds that "it is impossible to determine the exact type of documents that the IRS asserts are exempt under 7(A)." Though Exemption 7(A) does allow for the categorical withholding of certain types of documents, defendant has not provided enough information for the court to determine whether the withheld documents are of those type. As to the IRS's use of this exemption to withhold an agent's working papers, though these documents are of a type that might be subject to a categorical withholding, the court lacks sufficient information in order to determine whether the documents contain segregable information that must be released to plaintiff.

District Court Decisions

ACLU of N.J. v. DOJ, No. 11-2553, 2012 WL 4660515 (D.N.J. Oct. 2, 2012) (Salas, J.). Holding: Granting defendants' motions for summary judgment; denying plaintiff's motions for summary judgment. The court holds that the defendant properly relied on Exemption 7(A). The court notes at the outset "that the FBI must show that '(1) a law enforcement proceeding is pending or prospective and (2) release of the information could reasonably be expected to cause some articulable harm.'" Examining the defendant's declaration, the court determines that the defendant has shown that the information withheld concerns "ongoing and prospective investigations" and is satisfied that the details provided by the FBI support an Exemption 7(A) withholding.

ACLU of Mich. v. FBI, No. 11-13154, 2012 WL 4513626 (E.D. Mich. Sept. 30, 2012). Holding: Granting defendant's motion for summary judgment and denying plaintiff's motion. Threshold: The court concludes that the information withheld under 7(A) was the type of information Exemption 7(A) was intended to protect. As an initial matter, the court notes that the FBI confirmed that all responsive material withheld pursuant to Exemption 7A relates to "current intelligence information being used in pending or prospective investigations or prosecutions." The court then accepts the FBI's arguments that harm would be caused by release. Specifically, release could "harm the FBI's ability to track specific current and pending threats" because the entities under investigation would "become aware of the multiple investigations and investigative activities and change their behavior and/or the 'players' to avoid detection and/or further investigation." With regard to information pertaining to "race and ethnicity," the court also accepts the FBI argument that "releasing demographic information about specific ethnic groups in specific areas compiled in the course of the investigation," would also cause similar harm because "race and ethnicity may be significant to an investigation."

Ameren Mo. v. EPA, No. 4:11CV02051AGF, 2012 WL 4372518 (E.D. Mo. Sept. 25, 2012) (Fleissig, J.). Holding: Granting defendant's motion for summary judgment and denying plaintiff's request for attorney fees. The court finds that release of this information would cause harm by giving "advance disclosure of [the government's] enforcement and litigation strategies." With respect to plaintiff's argument that it is entitled to this information because it was the target of the investigation and must defend itself, the court notes that "the FOIA is not intended as a substitute for civil discovery and the Court's determination here in no way affects Plaintiff's ability to employ civil discovery tools in any proceeding against it."

Simbaqueba v. DOD, No. 11-62, 2012 WL 2133597 (S.D. Ohio June 11, 2012) (Smith,J.). Holding: Denying plaintiff's motion for reconsideration where plaintiff has failed to establish that there is clear error of law with respect to the court's determination that DOD's withholdings under Exemption 7(A) were proper and that its searches were adequate; denying plaintiff's motion for discovery where there is no evidence of bad faith and the court has determined that DOD's searches were adequate; and denying as moot his motion to clarify the court's order.

Citizens for Resp. & Ethics in Wash. v. DOJ, No. 11-592, 2012 WL 2354353 (D.D.C. June 8, 2012) (Leon,J.). Holding: Granting defendant's motion for summary judgment on the basis that it properly withheld the requested materials categorically under Exemptions 6 and 7(C), as well as Exemptions 2, 3, 7(D), and 7(E). The court concludes that defendant properly asserted Exemption 7(A) to withhold the records in full. The court determines that the FBI has demonstrated that "'enforcement proceedings . . . are pending or reasonably anticipated'" where its declarations explain that there is an "ongoing" public corruption investigation as well as "'several outstanding convictions and sentencing proceedings . . . which have not yet been completed.'" The court finds that defendant has established that "disclosure 'could reasonably be expected to interfere with' these enforcement proceedings" by exposing witnesses and sources to harm or intimidation, identifying other parties under investigation, revealing the government's trial strategy, and notifying individuals who remain under investigation.

Abuhouran v. U.S. State Dep't, No. 11-271, 2012 WL 473241 (D.D.C. Feb. 14, 2012) (Huvelle,J.). Holding: Dismissing the amended complaint brought by plaintiff's sister for lack of standing under Federal Rule of Civil Procedure 12(b)(1); treating as conceded defendants' claims of exemption, the court concludes that the defendants properly withheld information pursuant to Exemptions 1, 5, 6, 7(A) and 7(C) and that the State Department released all reasonably segregable information; and denying plaintiff's request for costs and fees as he is not a prevailing party. The court holds that the State Department properly asserted Exemption 7(A) to withhold in full a handwritten note containing attorney work-product, for which it also invoked Exemption 5, where defendant states that "the note 'reflects an ongoing law enforcement issue and potential strategies for handling the issue the release of which could hamper an ongoing law enforcement action.'"

Kellerhals v. IRS, No. 2009-90, 2011 WL 4591063 (D.V.I. Sept. 30, 2011) (Gómez, J.). Adopting magistrate's recommendation that the IRS properly withheld information pursuant to Exemptions 3, 5, 7(A), and 7(E); but concluding that one document containing mainly factual data could be produced with appropriate redaction. Based on its in camera review, the court adopts the magistrate's recommendation that certain records were properly withheld pursuant to Exemptions 7(A) and 7(E) because "they either contain information which could interfere with ongoing law enforcement proceedings or which would reveal law enforcement techniques or fall within another exemption."

Adionser v. DOJ, No. 10-27, 2011 U.S. Dist. LEXIS105035 (D.D.C. Sept. 15, 2011) (Leon,J.). Holding: Granting summary judgment in favor of defendants based on the adequacy of their searches and the propriety of their exemption claims. The court concludes that DEA properly asserted Exemption 7(A) to withhold a file related to one of plaintiff's criminal co-defendants who has a pending appeal. The court notes that "[f]or purposes of Exemption 7(A), a pending appeal of a criminal conviction qualifies as an ongoing law enforcement proceeding." The court finds that "because the file was created for law enforcement purposes and disclosure of the withheld information could reasonably be expected to interfere with a pending law enforcement proceeding, DEA has properly asserted Exemption 7(A)."

Int'l Union of Elevator Constructors Loc. 2 v. DOL, No. 10-1935, 2011 WL 3626411 (N.D. Ill. Aug. 17, 2011) (Castillo,J.). Holding: Granting defendant's motion for summary judgment based on its withholdings under Exemption 7(A); and denying plaintiff's motions for summary judgment and for disclosure of DOL's in camera declaration and the withheld records. Based on its review of a supplemental declaration submitted in camera and the withheld records, the court concludes that DOL justified its claim of Exemption7(A) for the documents at issue. The court finds that unlike DOL's initial declarations, the supplemental declaration "is specific, detailed, and demonstrates that the withheld documents logically fall within Exemption 7(A)." The court notes that the declaration explains the background of the investigation at issue, identifies the responsive records and "highlights in detail the risk that disclosure of these documents would prematurely reveal the Department of Labor's evidence, as well as the nature, scope, direction and focus of its investigations." Moreover, the declaration explains how disclosure "could enable the targets [of the investigation] . . . to destroy or alter the evidence or construct defenses" and to intimidate or harass witnesses and informants. Additionally, the court notes that its in camera inspection "corroborates these declarations." The court dismisses plaintiff's claim that the documents at issue relate to "closed civil investigations of transactions which occurred more than five years ago and are now beyond the statute of limitations." Rather, the court finds that DOL has demonstrated that although the records were originally compiled for those now-closed civil investigations, the assertion of Exemption 7(A) is proper because "the material is being relied upon and referenced in the current criminal investigation." The court also denies plaintiff' s request for disclosure of DOL's in camera declaration, noting that "no portion of [it] can be disclosed without revealing the information the Department of Labor seeks to protect."

Moffat v. DOJ, No. 09-12067, 2011 WL 3475440 (D. Mass. Aug. 5, 2011) (Casper,J.). Holding: Granting summary judgment to defendants based on adequacy of their searches and withholdings; denying plaintiff's request for attorney's fees and costs with respect to DEA and ATF, but permitting him leave to file a memorandum regarding his entitlement to fees with respect to his claim against the FBI. The court concludes that the FBI properly redacted "a witness interview form which may later be used as 'part of a Federal Grand Jury proceeding or at criminal trials'" pursuant to Exemption 7(A) "[b]ecause the release of this document could compromise an open investigation."

Lowy v. IRS, No. 10-767, 2011 U.S. Dist. LEXIS 34168 (N.D. Cal. Mar. 30, 2011) (Illston, J.). Holding: Denying both defendant's and plaintiffs' motions for summary judgment and ordering defendant to supplement its submissions. The court determines that these records were also properly withheld under Exemption 7(A) where "the IRS's submissions show that the release of the documents would interfere with the civil examination."

Barrett v. DOJ, No. 09-2959, 2010 U.S. Dist. LEXIS 112259 (E.D. Cal. Oct. 21, 2010) (Burrell, J.). The court determines that the FBI properly asserted Exemption 7(A) to withhold the requested latent fingerprint records. As an initial matter, the court notes that "[t]he parties agree that the latent fingerprints were compiled for 'law enforcement purposes.'" The court concludes that, based on the FBI's declaration as well as the attached exhibits consisting of correspondence from local law enforcement authorities, "the Zodiac case investigation is ongoing, and Plaintiff has presented no admissible evidence that the investigation has been completed or is inactive." Furthermore, the court finds that the FBI's "declaration contains a 'general showing' that disclosure of the fingerprints could interfere with local law enforcement agencies' ongoing investigations of the Zodiac case" because release of the records could result in notification of the subject and allow him to evade capture by law enforcement authorities.

Council on Am.-Islamic Relations, Cal. v. FBI, No. 09-823, 2010 WL 4024806 (S.D. Cal. Oct. 12, 2010) (Gonzalez, J.). The court holds that the FBI's assertion of Exemption 7(A) to protect certain categories of investigatory records was appropriate. Despite plaintiffs' claim that the FBI failed to establish that an investigation is pending, the court finds that the FBI has established that "there is a pending investigation related to the requested information" and "has identified specific potential harms associated with the release of the information."

Gray v. U.S. Army Crim. Investigation Command, No. 09-1310, 2010 WL 3833937 (D.D.C. Sept. 30, 2010) (Sullivan, J.). As a preliminary matter, the Court finds that "records compiled for a pending administrative disciplinary action may fall within Exemption 7(A)." The court also concludes that even though "the U.S. Attorney's Office has declined prosecution," defendants have shown that a "proceeding is pending or at least reasonably anticipated" where "the U.S. Army is still considering whether to take disciplinary action against the subjects of the investigation." However, the court ultimately holds that the agency's "conclusory, boilerplate statements, without reference to specific documents or even categories of documents," which "appear designed to cover every scenario in which a plaintiff seeks the disclosure of records related to a law enforcement proceeding," are not sufficient to support its assertion of Exemption 7(A).

Cuban v. SEC, No. 09-0996, 2010 U.S. Dist. LEXIS 99664 (D.D.C. Sept. 22, 2010) (Walton, J.). The SEC properly asserted Exemption 7(A) to withhold records that derive from an active and ongoing personnel investigation. The court finds that "the defendant's showing is sufficient even though it has not specifically described the basis for the non-disclosure in each instance, because extensive specificity is not required for Exemption 7(A) where providing such detail would undermine the precise reason for the non-disclosure." The court determines that the SEC "described in sufficient detail the records that it has withheld and the harm that could befall the agency if these records are prematurely released" and, additionally, it demonstrated that disclosure "might reveal its investigative strategy and findings concerning the investigation before they are finalized."

Fox News Network, LLC v. SEC, No. 09-2641, 2010 U.S. Dist. LEXIS 98232 (S.D.N.Y. Sept. 14, 2010) (Rakoff, J.). The SEC properly asserted Exemption 7(A) to fully withhold the documents responsive to the request. The court notes that the SEC's declarations detail that disclosure of the documents "'in whole or in part, could reasonably be expected to interfere with enforcement proceedings in SEC v. Stanford and with the SEC's ongoing investigation into the circumstances surrounding the fraud.'" Additionally, the SEC's declaration also "explains how revealing non-public information could harm the SEC's ability to litigate the current or future enforcement actions, would reveal the identity of individuals who may have confidential information, prematurely give witnesses and defendants information on litigation strategy, or enable others to identify those who have provided information to the SEC and thus enabling them to seek to intimidate them." The court notes that its in camera inspection of a sampling of the documents "confirms the validity of Exemption 7(A) and the potential harm to the SEC's enforcement actions were the documents to be produced."

Amnesty Int'l USA v. CIA, No. 07-5435, 2010 WL 3033822 (S.D.N.Y. Aug. 2, 2010) (Preska, J.). Upon reviewing its public and classified declarations, the court concluded that the CIA properly invoked Exemption 7(A) because a "law enforcement proceeding was pending,""records have been compiled for a law enforcement purposes" in connection with CIA OIG investigations, and disclosure of information could reasonably be expected to interfere with those ongoing investigations.

Vento v. IRS, No. 08-159, 2010 WL 1375279 (D.V.I. Mar. 31, 2010) (Sanchez, J.). The court finds that defendant properly asserted this exemption "to withhold [its agent's] notes and summaries of witness interviews . . . conducted during the course of the investigation into Plaintiffs' tax liability." Plaintiffs' claim that the exemption does not apply "because the documents were not created for 'a concrete, prospective law enforcement proceeding' at the time the agency decided to withhold the information" is meritless in light of the fact that "the record shows [that the IRS agent] was preparing a case against Plaintiffs. Thus, [the agent's] interview notes and summaries were created in anticipation of an enforcement proceeding, even if a formal action had not yet been filed." The court accepts the IRS's contention that release of the documents would interfere with the proceedings "by revealing the identities of cooperating witnesses, the available evidence, the transactions being investigated, and the weight the agency places on certain information."

Utah American Energy, Inc. v. U.S. Dep't of Labor, No. 08-1791, 2010 WL 1252863 (D.D.C. Mar. 31, 2010) (Leon, J.). The court finds that DOL has not justified its decision to withhold in full all IRT transcripts. Defendant's claims that release of the witness transcripts "could cause witness collusion or unfairly preview evidence to be presented at trial" are "less than convincing." Defendant has previously published a "report based on the IRT interviews," and "MSHA published a separate accident investigation report based on its interviews, which included 20 of the IRT witnesses." In light of this, "while it is difficult to know exactly how much of these witness accounts were not included in the final published reports, DOL's failure to explain with greater particularity how that information could compromise those ongoing investigations some two years later should not be rewarded by this Court." The court determines that "the risk of witness collusion at this late date, after so much information has been made public, is exaggerated and falls far short of the 'substantial burden' that must be met to warrant the agency's use of this Exemption."

Defendant's claims with regard to possible witness intimidation are similarly unconvincing. "The 59 witnesses' identities are already known publicly, and fortunately, none have been intimidated to date. . . . Given that all of the witnesses' identities are known and the agency's reports have been public for nearly two years, harm to any of these witnesses cannot be reasonably expected in the future and is thus an insufficient basis to rely on Exemption 7(A)."

Banks v. DOJ, No. 06-1950, 2010 WL 1172593 (D.D.C. Mar. 26, 2010) (Sullivan, J.) (parties' motions for summary judgment denied without prejudice). Defendant USPIS "offers no justification" for its assertion of this exemption "beyond two conclusory statements."

Lieff, Cabraser, Heimann & Bernstein, LLC v. DOJ, No. 09-00157, 2010 WL 1063785 (D.D.C. Mar. 24, 2010) (Kennedy, J.). Defendant properly invoked this exemption to withhold correspondence exchanged between the ATD and a participant in the leniency program. Disclosure of this information would reveal the names of potential witnesses to defendant's investigation, would reveal information about the bank's participation in the leniency program and what evidence it provided to defendant, and would also indicate how much evidence defendant has gathered and where its investigation stands. "The D.C. Circuit has previously held that the withholding of information about an investigation, even where the fact that the investigation was ongoing was known, was appropriate because the disclosure of particular documents could provide details about the 'particular types of allegedly illegal activities being investigated' as well as the names of potential witnesses, who would then be 'less likely to cooperate fully with the [investigating agency].'" Plaintiff claims that some of the withheld information is in the public domain, but it has failed to make any evidentiary showing to bolster this claim.

Bilderbeek v. DOJ, No. 08-1931, 2010 WL 1049618 (M.D. Fla. Mar. 22, 2010) (Antoon, J.). "In the instant case, the Department defines the three categories of records - Investigative, Administrative, and Publicly Known - and their component subcategories, states that each document responsive to the FOIA request was reviewed and placed in its appropriate category or subcategory, and explains to the Court with adequate information how the release of each category of documents would interfere with enforcement proceedings." Defendant has also "explained with reasonable specificity why the records at issue cannot be further segregated."

Blackwell v. FBI, No. 09-661, 2010 WL 143714 (D.D.C. Jan. 15, 2010) (Collyer, J.). FBI properly invoked this exemption to withhold the name of a pending FBI investigation. "Release of the name of the investigation could jeopardize it by identifying suspects."

Shannahan v. IRS, No. 08-0452, 2010 U.S. Dist. LEXIS 112 (W.D. Wash. Jan. 4, 2010) (Robart, J.). A Special Agent's report, not previously identified, was properly withheld pursuant to these two exemptions for reasons discussed in the court's previous orders.

Chesapeake Bay Found., Inc. v. U.S. Army Corps of Eng'rs, No. 09-1054, 2009 WL 5159756 (D.D.C. Dec. 30, 2009) (Bates, J.). The agency did not adequately justify its assertion of Exemption 7(A). In particular, the court notes although the agency asserted that the release of certain information would jeopardize an ongoing enforcement action, it failed to "explain how its investigation will be impaired by the release of the information that the targets of the investigation already possess."

Citizens for Responsibility & Ethics in Wash. v. DOJ, No. 08-1468, 2009 WL 3150770 (D.D.C. Oct. 1, 2009) (Sullivan, J.). The court finds that DOJ has not identified "a class of concrete prospective or otherwise reasonably anticipated enforcement proceedings." The court further finds that "DOJ may be correct that the precise scope of an investigation or the statute under which a proceeding is likely to be brought need not be discerned in order to conclude that a proceeding is 'reasonably anticipated' under Mapother's reasoning. Under this Court's reading of the statute and the relevant caselaw, however, the category of proceedings must be more narrowly defined than simply any investigation that might benefit from the cooperation of some senior White House official at some undetermined future point regarding some undefined subject." Because of the hypothetical nature of any future proceedings, "the Court is not in a position to assess the reasonableness of DOJ's assertion that the disclosure of the requested records may discourage senior White House officials from engaging in voluntary interviews with law enforcement officials." Indeed, "[a]ny attempt to predict the harm that disclosure of these records could have on such proceedings is therefore inherently, incurably speculative."

King v. DOJ, No. 08-1555, 2009 WL 2951124 (D.D.C. Sept. 9, 2009) (Kennedy, J.). Because plaintiff has filed a motion under 28 U.S.C. § 2255, which is “a collateral attack on his conviction,” it was appropriate for defendants to utilize Exemption 7(A) to withhold documents. "There can be no serious debate that such information is 'compiled for law enforcement purposes,' and it is easy to imagine information of such a nature that its disclosure 'could reasonably be expected to interfere with law enforcement proceedings.'"

Carter, Fullerton & Hayes, LLC v. FTC, No. 07-1041, 2009 WL 2222364 (D.D.C. July 24, 2009) (Lamberth, C.J.). Contrary to plaintiff's claims, the court finds that FTC "does not lack 'the authority to conduct an investigation into possible anticompetitive effects of state liquor control board regulations.'" Though "states have substantial control over the importation and sale of alcohol, this power does not preclude the FTC from an investigation into unfair methods of competition in or affecting commerce." FTC has further shown that its investigation is pending or prospective and that release of documents "could reasonably be expected to cause some articulable harm."

Lion Raisins, Inc. v. USDA, No. 08-00358, 2009 U.S. Dist. LEXIS 59635 (E.D. Cal. July 13, 2009) (Wanger, J.). As to plaintiff's fourth request, USDA is no longer asserting Exemption 7(A) to withhold these documents and has indicated that it intends to produce the responsive documents. Once USDA establishes that it has completed this, plaintiff's claim on this request will be mooted.

Lawyers Comm. for Civil Rights v. U.S. Dep't of the Treasury, No. 07-2590, 2009 WL 1299821 (N.D. Cal. May 11, 2009). "Treasury has failed to clarify whether it seeks to apply the exemption categorically or simply on a petition-by-petition basis. . . . [and] Treasury's [Vaughn]index confirms that 7(A) applies to only a few petitions." Furthermore, "Treasury has again failed to make any showing, let alone a particularized one, that 7(A) should apply categorically. It has not defined a functional category of documents; nor has it provided any details regarding the proceedings with which release of the information will interfere." As to eight of the nine petitions for which defendant claimed this exemption, it has failed to show the presence of an ongoing or pending investigation. "[Defendant] will not be permitted to redact or withhold any further information or petitions under 7(A). . . ."

Updated: December 2012
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