Freedom of Information Act Guide, May 2004
Exemption 7 of the FOIA, as amended, protects from disclosure "records or
information compiled for law enforcement purposes, but only to the extent that the
production of such law enforcement records or information (A) could reasonably be
expected to interfere with enforcement proceedings, (B) would deprive a person of a
right to a fair trial or an impartial adjudication, (C) could reasonably be expected to
constitute an unwarranted invasion of personal privacy, (D) could reasonably be
expected to disclose the identity of a confidential source, including a State, local, or
foreign agency or authority or any private institution which furnished information on
a confidential basis, and, in the case of a record or information compiled by a
criminal law enforcement authority in the course of a criminal investigation, or by an
agency conducting a lawful national security intelligence investigation, information
furnished by a confidential source, (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, or (F) could reasonably be expected to
endanger the life or physical safety of any individual." (1)
The threshold requirement for Exemption 7 has been modified by Congress
twice since the enactment of the FOIA. In its original form, this exemption simply
permitted the withholding of "investigatory files compiled for law enforcement
purposes except to the extent available by law to a party other than an agency." (2) As
such, it was consistently construed to exempt all material contained in an
investigatory file, regardless of the status of the underlying investigation or the
nature of the documents requested. (3) In 1974, Congress rejected the application of a
"blanket" exemption for investigatory files and narrowed the scope of Exemption 7
by requiring that withholding be justified by one of six specified types of harm. (4)
Under this revised Exemption 7 structure, an analysis of whether a record was
protected by this exemption involved two steps: First, the record had to qualify as
an "investigatory record compiled for law enforcement purposes"; second, its
disclosure had to be found to threaten one of the enumerated harms of Exemption
7's six subparts. (5)
Congress amended Exemption 7 again in 1986, retaining its basic structure as
established by the 1974 FOIA amendments, but significantly broadening the
protection given to law enforcement records virtually throughout the exemption and
its subparts. (6) The Freedom of Information Reform Act of 1986, often referred to as
the 1986 FOIA amendments, modified the threshold requirement of Exemption 7 in
several distinct respects; it deleted the word "investigatory" and added the words
"or information," such that Exemption 7 protections are now potentially available to
all "records or information compiled for law enforcement purposes." (7) And, except for
Exemption 7(B) and part of Exemption 7(E), it altered the requirement that an agency
demonstrate that disclosure "would" cause the harm each subsection seeks to
prevent, to the lesser standard that disclosure "could reasonably be expected to"
cause the specified harm. (8)
Exemption 7's expansion to cover "information" compiled for law enforcement
purposes extended protection to compilations of information as they are preserved
in particular records and also to information within the record itself, so long as that
information was compiled for law enforcement purposes. (9) It plainly was designed
"to ensure that sensitive law enforcement information is protected under Exemption
7 regardless of the particular format or record in which [it] is maintained." (10) It was
intended to avoid use of any mechanical process for determining the purpose for
which a physical record was created and to instead establish a focus on the purpose
for which information contained in a record has been generated. (11) In making their
determinations of threshold Exemption 7 applicability, agencies should focus on the
content and compilation purpose of each item of information involved, regardless of
the overall character of the record in which it happens to be maintained. (12)
This amendment of Exemption 7 shifted its focus from a "record" to an item of
"information," building upon the approach to Exemption 7's threshold that was
employed by the Supreme Court in FBI v. Abramson, (13) in which the Court
pragmatically focused on the "kind of information" contained in the law enforcement
records before it. The amendment essentially codified prior judicial determinations
that an item of information originally compiled by an agency for a law enforcement
purpose does not lose Exemption 7 protection merely because it is maintained in or
recompiled into a non-law enforcement record. (14) This properly places "emphasis on
the contents, and not the physical format of documents." (15)
The scope of Exemption 7 was further expanded by the 1986 FOIA
amendments, which removed the requirement that records or information be
"investigatory" in character in order to qualify for Exemption 7 protection. (16) Under
the former formulations, agencies and courts considering Exemption 7 issues often
found themselves struggling with the "investigatory" requirement, which held the
potential for disqualifying sensitive law enforcement information from Exemption 7
protection. (17) Courts construing this statutory term generally interpreted it as
requiring that the records in question result from specifically focused law
enforcement inquiries as opposed to more routine monitoring or oversight of
government programs. (18)
The distinction between "investigatory" and "noninvestigatory" law
enforcement records, was not always so clear. (19) Moreover, the "investigatory"
requirement per se was frequently blurred together with the "law enforcement
purposes" aspect of the exemption, so that it sometimes became difficult to
distinguish between the two. (20) Law enforcement manuals containing sensitive
information about specific procedures and guidelines followed by an agency were
held not to qualify as "investigatory records" because they had not originated in
connection with any specific investigation, even though they clearly had been
compiled for law enforcement purposes. (21)
The 1986 FOIA amendments were a response to such troublesome
distinctions, and they broadened the potential sweep of the exemption's coverage
considerably. (22) Under those FOIA amendments, the protections of Exemption 7's six
subparts were made available to all records or information compiled for "law
enforcement purposes." (23) Even records generated pursuant to routine agency
activities that previously could not be regarded as "investigatory" now should qualify
for Exemption 7 protection when those activities involve a law enforcement purpose.
This certainly includes records generated for general law enforcement purposes
that do not necessarily relate to specific investigations, although some relatively
recent decisions still carelessly contain the pre-1986 FOIA amendment
"investigatory" language. (24)
Records such as law enforcement manuals, for example, which previously
were found unqualified for Exemption 7 protection only because they were not
"investigatory" in character, (25) now should satisfy the exemption's threshold
requirement. (26) The sole issue remaining is the application of the phrase "law
enforcement purposes" in the context of the amended Exemption 7.
Relatively few cases have addressed the parameters of this less-demanding
threshold standard under the 1986 FOIA amendments, so it is useful also to examine
the cases interpreting the identical "law enforcement purposes" language under the
prior version of this exemption, as all law enforcement records found qualified for
exemption protection under the pre-1986 language of Exemption 7 undoubtedly
remain so. (27)
Thus, the "law" to be enforced within the meaning of the term "law
enforcement purposes" includes both civil (28) and criminal statutes, (29) as well asthose statutes authorizing administrative (i.e., regulatory) proceedings. (30)
Most significantly, the courts recognize that "law enforcement" within the
meaning of Exemption 7 extends beyond these traditional realms into the realms of
national security and homeland security-related government activities as well. (31) For
example, in Center for National Security Studies v. United States Department of
Justice, the D.C. Circuit recently explained that the names of post-9/11 detainees,
found on documents that traditionally have been public, are properly withheld
because they were compiled for the law enforcement purpose of pursuing a
"heinous violation of federal law as well as a breach of national security." (32) Indeed, in
accepting arguments that terrorists could use information previously considered
innocuous and safe for public release, courts have shown a new sensitivity to the
needs of homeland security by recognizing the law enforcement nexus for certain
documents that readily could be used by terrorists to assess the likelihood of
detection, to analyze the degree of damage inflicted by striking one particular target
instead of another, or even to intimidate witnesses and/or the families of
witnesses. (33) The courts that have uniformly determined that documents related to
national or homeland security satisfy Exemption 7's law enforcement requirement
have discussed repeatedly that the agencies' mandates to protect society and to
prevent violence are key to establishing the threshold's satisfaction. (34) Furthermore,
in this area courts pointedly emphasize the propriety of judicial deference; indeed, in
Center for National Security Studies, the D.C. Circuit observed that it was acting fully
"in accord with several federal courts that have wisely respected the executive
judgments in prosecuting the national response to terrorism" by deferring to the
executive on "decisions of national security," especially in establishing the law
enforcement purpose and in foreseeing the harm from disclosure. (35) (For further
discussions of homeland security-related matters, see Exemption 1, Homeland
Security-Related Information, above, and Exemption 2, Homeland Security-Related
In addition to all such matters of federal law enforcement, Exemption 7 also
applies to records compiled to enforce state law, (36) and even foreign law. (37) There is
no requirement that the matter culminate in actual administrative, civil, or criminal
enforcement. (38) However, if the agency lacks the authority to pursue a particular law
enforcement matter, Exemption 7 protection may not be afforded. (39)
Additionally, "[b]ackground security investigations by governmental units
which have authority to conduct such functions" (40) have been held by most courts to
meet the threshold tests under the succeeding formulations of Exemption 7. (41)
Personnel investigations of government employees also are compiled for law
enforcement purposes if they focus on "specific and potentially unlawful activity by
particular employees" of a civil or criminal nature. (42) By contrast, "an agency's general
monitoring of its own employees to ensure compliance with the agency's statutory
mandate and regulations" does not satisfy Exemption 7's threshold requirement. (43)
Thus, while the line between mere employee monitoring and an investigation
of an employee that satisfies the threshold requirement of Exemption 7 is narrow,
the following examples satisfying the threshold shed useful light on this distinction:
(1) an investigation of an employee's allegations of misconduct and gross
(2) an investigation triggered by a complaint letter alleging that particular
government prosecutors had withheld certain information during litigation; (45)
(3) an investigation of a particular Assistant United States Attorney for
disclosing confidential information about the alleged use of cocaine by a suspect; (46)
(4) an investigation triggered by an allegation of racial harassment. (47)
On the other hand, examples of matters that do not satisfy the threshold are:
(1) an investigation into whether an employee who spoke at a meeting
sponsored by a regulated company violated agency regulations when the case
focused on "whether an agency employee has complied with agency regulations"; (48)
(2) records concerning an employee who had been disciplined because the
agency was participating "as an employer" and not as an "agency enforcing the
revenue laws"; (49) and
(3) an investigation conducted by an Office of Inspector General that the
agency merely asserted "must" have been for law enforcement purposes even
though the Inspector General "also investigates internal matters concerning agency
inefficiency and mismanagement." (50)
The common thread running through all these cases is the one first
established in Rural Housing and then reiterated in Stern: It is imperative that an
agency articulate the purpose of its actions and, as necessary, "distinguish
[between] two types of files relating to government employees." (51) Most especially,
entities such as an Office of Inspector General and the Department of Justice's Office
of Professional Responsibility need to take particular care in describing the different
types of personnel investigations that they conduct, because such entities routinely
conduct both law enforcement and non-law enforcement investigations of agency
In determining whether a record concerning matters other than an agency's
own activities and personnel was "compiled for law enforcement purposes" under
Exemption 7, the courts have generally distinguished between agencies with both
law enforcement and administrative functions and those whose principal function is
criminal law enforcement. (53) An agency whose functions are "mixed" usually has to
show that the records at issue involved the enforcement of a statute or regulation
within its authority. (54) Courts have additionally required that the records be compiled
for "adjudicative or enforcement purposes." (55)
However, in two recent cases involving agencies with "mixed" functions,
courts have applied the phrase "law enforcement purpose" broadly. (56) In Living
Rivers, Inc. v. United States Bureau of Reclamation, the court explained that before it
could determine if "dam inundation" maps created by the Department of the
Interior's Bureau of Reclamation (BOR) were withheld properly pursuant to either
Exemption 7(E) or Exemption 7(F), it first had to determine whether Exemption 7's
threshold requirement was met. (57) Reiterating the differences between "per se" law
enforcement agencies and those with both administrative and law enforcement
functions, the court pragmatically acknowledged that "Congress has provided the
BOR with express 'law enforcement authority' to 'maintain law and order and protect
persons and property within Reclamation projects and on Reclamation lands.'" (58)
After endorsing this express grant of law enforcement authority, the court next
addressed the "compilation" aspect of the threshold requirement, finding that the
"context in which an agency has currently compiled a document, rather than the
purpose for which the document was originally created, determines whether it is
'compiled for law enforcement purposes.'" (59) Based upon this pragmatic, post-9/11
analysis, the court ruled that "the inundation maps are presently used and were
compiled in direct relation to the BOR's statutory law enforcement mandate. The
BOR therefore satisfies the first prong of Exemption 7." (60)
Similarly, in Coastal Delivery v. United States Customs Service, the court
recognized readily that "Customs has a law enforcement mandate" regarding the
"number of examinations it performed on merchandise arriving into the Los
Angeles/Long Beach seaport." (61) Accordingly, it found a sufficient Exemption 7
nexus, in support of both Exemption 2 and Exemption 7(E) protection, because "the
numbers allow Customs to track the overall effectiveness of its examination
technique, and evaluate both its commercial enforcement strategy and its border
security responsibilities." (62)
The Supreme Court in 1990 resolved a conflict in lower court decisions (63) by
decisively holding that information not initially obtained or generated for law
enforcement purposes may still qualify under Exemption 7 if it is subsequently
compiled for a valid law enforcement purpose at any time prior to "when the
Government invokes the Exemption." (64) Rejecting the distinction between documents
originally compiled or obtained for law enforcement purposes and those later
assembled for such purposes, the Court held that the term "compiled" must be
accorded its ordinary meaning -- which includes "materials collected and assembled
from various sources or other documents" -- and it found that the plain meaning of
the statute contains "no requirement that the compilation be effected at a specific
In the case of criminal law enforcement agencies, the courts have accorded
the government varying degrees of special deference when considering whether
their records meet the threshold requirement of Exemption 7. (66) Indeed, the First,
Second, Sixth, Eighth, and Eleventh Circuit Courts of Appeals have adopted a per se
rule that qualifies all "investigative" records of criminal law enforcement agencies for
protection under Exemption 7. (67) Other courts, while according significant deference
to criminal law enforcement agencies, have held that an agency must demonstrate
some specific nexus between the records and a proper law enforcement purpose. (68)
The existing standard for review of criminal law enforcement records in the
Court of Appeals for the District of Columbia Circuit is somewhat more stringent
than the per se rule discussed above. The D.C. Circuit held in Pratt v. Webster that
records generated as part of a counterintelligence program of questionable legality
which was part of an otherwise clearly authorized law enforcement investigation
met the threshold requirement for Exemption 7 and rejected the per se approach. (69)
Instead, it adopted a two-part test for determining whether the threshold for
Exemption 7 has been met: (1) whether the agency's investigatory activities that
give rise to the documents sought are related to the enforcement of federal laws or
to the maintenance of national security; and (2) whether the nexus between the
investigation and one of the agency's law enforcement duties is based on
information sufficient to support at least a colorable claim of rationality. (70)
Since the removal of the word "investigatory" from the threshold requirement
of Exemption 7 in 1986, the D.C. Circuit has had few opportunities to reconsider the
Pratt test, a portion of which expressly requires a nexus between requested records
and an investigation. (71) In Keys v. United States Department of Justice, however, the
D.C. Circuit modified the language of the Pratt test to reflect those amendments and
to require that an agency demonstrate the existence of a nexus "between [its]
activity" (rather than its investigation) "and its law enforcement duties." (72) Although
not spe-cifically relying on the amended statutory language, the D.C. Circuit in Keys
held that records compiled solely because the subject had a known affiliation with
organizations that were strongly suspected of harboring Communists met the
Exemption 7 threshold. (73) As no appellate decision has yet employed the modified
Pratt test adopted by Keys, the impact of this change in the threshold is not yet fully
Even under the test enunciated in Pratt, (74) significant deference has been
accorded criminal law enforcement agencies. (75) Nevertheless, the D.C. Circuit has
indicated in Pratt and elsewhere that if an investigation is shown to have been in
fact conducted for an improper purpose, Exemption 7 may not be applicable to the
records of that investigation. (76)
Courts have yet to fully test the boundaries of Exemption 7's threshold after
the broadening of the 1986 FOIA amendments. Under Exemption 7 as amended, all
federal agencies should consider which records of a noninvestigatory character may
qualify for protection because they relate sufficiently to a law enforcement mission
assigned to the agency. (77) Agencies may now be able to apply Exemption 7
protection, for example, to law enforcement manuals, program oversight reports,
and other similar documents because of their relationship to the agency's law
enforcement mission. (78) The full effects of these amendments will be realized only
upon the case-by-case identification of particular items of noninvestigatory law
enforcement information the disclosure of which could cause one of the harms
specified in Exemption 7's six subparts. (79)
For example, emerging case law supports the use of Exemption 7 to protect
integrated intelligence and law enforcement information -- which might not
previously have been categorized as collected for law enforcement purposes --
particularly in situations where agencies have gathered information for purposes of
combating terrorism and protecting homeland security. (80) Such case law finds its
antecedent in the "national security" framework found in Pratt (81) and logically applies
Exemption 7 to protect intelligence data that relates to an agency's law enforcement
mission. (82) Indeed, three post-9/11 FOIA decisions have recognized this newer
"national security" framework and have applied it to protect sensitive, homeland
security-related information -- explaining that terrorists could use the information to
increase the risk of an attack or to increase the damage done by an attack. (83)
Nevertheless, agencies should be mindful that while the FOIA's policy goals
strongly support protecting intelligence information as part of the preventative law
enforcement mission under Exemption 7, (84) courts may require some showing of a
rational nexus between such activities and an agency's law enforcement functions. (85)
Accordingly, agencies should carefully examine their law enforcement purposes in
determining that a "sound legal basis" exists for applying Exemption 7 and gaining
its broad protections under the six subparts discussed below. (86) And while agencies
must establish this "connection" between their activities and their institutional
mandates in general, they can be mindful that the courts have properly given
deference to agency expertise in this area -- particularly in post-9/11 judicial
decisions, which repeatedly advert to the tragic events of that day and to how
"American life [has] changed drastically and dramatically." (87)
1. 5 U.S.C. Â§ 552(b)(7) (2000).
2. Pub. L. No. 90-23, 81 Stat. 54, 55 (1967) (subsequently amended).
3. See, e.g., Weisberg v. United States Dep't of Justice, 489 F.2d 1195, 1198-1202
(D.C. Cir. 1973).
4. Pub. L. No. 93-502, 88 Stat. 1561, 1563 (1974) (subsequently amended).
5. See FBI v. Abramson, 456 U.S. 615, 622 (1982).
6. Freedom of Information Reform Act of 1986, Pub. L. No. 99-570, Â§ 1802, 100 Stat.
3207, 3207-48; see United States Dep't of Justice v. Reporters Comm. for Freedom of
the Press, 489 U.S. 749, 756 n.9 (1989) (recognizing that the shift from "would
constitute" standard to "could reasonably be expected to constitute" standard
"represents a congressional effort to ease considerably a Federal law enforcement
agency's burden in invoking [Exemption 7]"); Tax Analysts v. IRS, 294 F.3d 71, 79 (D.C.
Cir. 2002) (explaining that 1986 FOIA amendments changed threshold for Exemption
7 to delete "any requirement" that information be investigatory and that exemption
therefore can be applied more widely); Hopkinson v. Shillinger, 866 F.2d 1185, 1222
n.27 (10th Cir. 1989) ("The 1986 amendment[s] broadened the scope of exemption 7's
threshold requirement . . . ."); North v. Walsh, 881 F.2d 1088, 1098 n.14 (D.C. Cir. 1989)
(stating that Congress in 1986 "changed the threshold requirement for withholding
information under exemption 7" so that "it now applies more broadly"); Wash. Post
Co. v. United States Dep't of Justice, No. 84-3581, 1987 U.S. Dist. LEXIS 14936, at *26
(D.D.C. Sept. 25, 1987) (magistrate's recommendation) (noting that an "[a]gency's
burden of proof in this threshold test has been lightened considerably"), adopted
(D.D.C. Dec. 15, 1987), rev'd in part on other grounds & remanded, 863 F.2d 96 (D.C.
7. Â§ 1802, 100 Stat. at 3207-48; see also Tax Analysts, 294 F.3d at 79 (emphasizing
that the "legislative history makes it clear that Congress intended the amended
exemption to protect both investigatory and non-investigatory materials, including
law enforcement manuals and the like" (citing S. Rep. No. 98-221, at 23 (1983))).
8. Id.; see Attorney General's Memorandum on the 1986 Amendments to the
Freedom of Information Act 9-13 (Dec. 1987) [hereinafter Attorney General's 1986
Amendments Memorandum]; cf. NARA v. Favish, 124 S. Ct. 1570, 1579 (2004) (evincing
the Supreme Court's reliance on "the Attorney General's consistent interpretation of"
the FOIA in successive such Attorney General memoranda).
9. Attorney General's 1986 Amendments Memorandum at 5.
10. S. Rep. No. 98-221, at 23 (1983).
11. See id.
12. See id.; Abramson, 456 U.S. at 630-32; see also Living Rivers, Inc. v. United States
Bureau of Reclamation, 272 F. Supp. 1313, 1319 (D. Utah 2003) (finding that records
created to protect dams from terrorism satisfy Exemptions 7's threshold, and
reasoning that "the context in which an agency has currently compiled a document . .
. determines whether it is 'compiled for law enforcement purposes'" (quoting John
Doe Agency v. John Doe Corp., 493 U.S. 146, 153-54 (1989))); Hogan v. Huff, No. 00 Civ.
6753, 2002 WL 1359722, at *11 (S.D.N.Y. June 21, 2002) (declaring that "[d]ue to the
nature of the origin" of documents used to determine a target's "status as a potential
unregistered agent for the Cuban government, the documents in question meet the
requirement of being gathered for law enforcement purposes"); Ctr. to Prevent
Handgun Violence v. United States Dep't of the Treasury, 981 F. Supp. 20, 22-23
(D.D.C. 1997) (finding that because reports of gun sales are "starting points for
investigations of illegal gun trafficking," such reports are "clearly law enforcement
records"); cf. Avondale Indus. v. NLRB, 90 F.3d 955, 962 (5th Cir. 1996) (finding no
evidence in the requested record or in case law that union "voting lists were, in any
way, compiled for a law enforcement purpose").
13. 456 U.S. at 626.
14. See id. at 631-32 ("We hold that information initially contained in a record made
for law enforcement purposes continues to meet the threshold requirements of
Exemption 7 where that recorded information is reproduced or summarized in a new
document for a non-law-enforcement purpose."); Lesar v. United States Dep't of
Justice, 636 F.2d 472, 487 (D.C. Cir. 1980) (holding that documents from review of
previous FBI surveillance meet threshold); see also Assassination Archives &
Research Ctr. v. CIA, 903 F. Supp. 131, 132-33 (D.D.C. 1995) (finding that information
from criminal investigations recompiled into administrative file to assist FBI in
responding to Senate committee hearings "certainly satisfies" threshold
requirement), dismissed without prejudice, No. 94-0655 (D.D.C. May 31, 1996); Exner v.
United States Dep't of Justice, 902 F. Supp. 240, 242 & n.3 (D.D.C. 1995) (protecting
law enforcement document even if copy is maintained in non-law enforcement file),
appeal dismissed, No. 95-5411, 1997 WL 68352 (D.C. Cir. Jan. 15, 1997). But cf.
Rosenfeld v. United States Dep't of Justice, 57 F.3d 803, 811 (9th Cir. 1995) (affirming
district court's refusal to apply Abramson principle to documents originally compiled
for law enforcement purposes but "channelized" into non-law enforcement files
when principle raised as defense for first time in motion for reconsideration).
15. Ctr. for Nat'l Sec. Studies v. CIA, 577 F. Supp. 584, 590 (D.D.C. 1983) (applying
Abramson to hold that duplicate copy of congressional record maintained in agency
files is not an "agency record"); see, e.g., Ctr. for Nat'l Sec. Studies v. United States
Dep't of Justice, 331 F.3d 918, 926 (D.C. Cir. 2003) (explaining that although the
requested documents are of a type that "have traditionally been public . . . [a]s
compiled, they constitute a comprehensive diagram of the law enforcement
investigation" and thus are "[c]learly" compiled for law enforcement purposes), cert.
denied, 124 S. Ct. 1041 (2004); Ponder v. Reno, No. 98-3097, slip op. at 4-5 (D.D.C. Jan.
22, 2001) (concluding that "the agency's purpose in compiling the records, not their
ultimate use of the documents, determines if they meet the Exemption 7 threshold");
Exner, 902 F. Supp. at 242 n.3 (explaining that documents compiled in course of FBI
investigation into "underworld/criminal activities" involving federal antiracketeering
statutes "clearly constitute records or information compiled for law enforcement
purposes" even if "a copy of the documents might also be found in a non-law
enforcement file"); ISC Group v. DOD, No. 88-631, 1989 WL 168858, at *5 (D.D.C.
May 22, 1989) (failing to protect the investigatory report prepared by a private
company expressly for the agency's criminal investigation pursuant to Exemption 7
"would elevate form over substance and frustrate the purpose of the exemption"); cf.
In re Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988) (explaining that law enforcement
privilege protects testimony about contents of files which would themselves be
protected, because public interest in safeguarding ongoing investigations is
identical in both situations); Weinstein v. HHS, 977 F. Supp. 41, 45 (D.D.C. 1997)
(applying Abramson to protect sensitive information under Exemption 5).
16. See Attorney General's 1986 Amendments Memorandum at 6.
17. See id.
18. Compare, e.g., Sears, Roebuck & Co. v. GSA, 509 F.2d 527, 529-30 (D.C. Cir. 1974)
(deciding that records submitted for mere monitoring of employment discrimination
are not "investigatory"), with Ctr. for Nat'l Policy Review on Race & Urban Issues v.
Weinberger, 502 F.2d 370, 373 (D.C. Cir. 1974) (ruling that records of agency review of
public schools suspected of discriminatory practices are "investigatory").
19. Compare, e.g., Gregory v. FDIC, 470 F. Supp. 1329, 1334 (D.D.C. 1979) (finding that
bank examination report "typifies routine oversight" and thus is not "investigatory"),
rev'd on other grounds, 631 F.2d 896 (D.C. Cir. 1980), with Copus v. Rougeau, 504 F.
Supp. 534, 538 (D.D.C. 1980) (holding that compliance review forecast report is
"clearly" investigative record).
20. See, e.g., Rural Hous. Alliance v. USDA, 498 F.2d 73, 81 & n.47 (D.C. Cir. 1974).
21. See Sladek v. Bensinger, 605 F.2d 899, 903 (5th Cir. 1979) (holding Exemption 7
inapplicable to DEA manual that "was not compiled in the course of a specific
investigation"); Cox v. United States Dep't of Justice, 576 F.2d 1302, 1310 (8th Cir. 1978)
22. See Attorney General's 1986 Amendments Memorandum at 7.
24. See Boyd v. DEA, No. 01-0524, slip op. at 7-8 (D.D.C. Mar. 8, 2002) (finding that
agency could withhold highly sensitive research analysis in intelligence report
pursuant to Exemption 7(E)); Tran v. United States Dep't of Justice, No. 01-0238, 2001
WL 1692570, at *3 (D.D.C. Nov. 20, 2001) (concluding that INS form was properly
withheld under Exemption 7(E) because it would reveal law enforcement
techniques); see, e.g., Allnutt v. Dep't of Justice, 99 F. Supp. 2d 673, 680 (D. Md. 2000)
(stating that the Tax Division records at issue "must generally arise during the
course of an investigation" and "must involve the detection or punishment of
violations of law" to satisfy the Exemption 7 threshold), renewed motion for summary
judgment granted, No. Y-98-901, 2000 WL 852455, at **20-21 (D. Md. Oct. 23, 2000),
aff'd sub nom. Allnutt v. Handler, 8 Fed. Appx. 225 (4th Cir. 2001); Morales Cozier v.
FBI, No. 1:99-0312, slip op. at 15 (N.D. Ga. Sept. 25, 2000) (finding that records
generated by invitation to official of Cuban government to speak in United States
were compiled for law enforcement purposes).
25. See, e.g., Sladek, 605 F.2d at 903; Cox, 576 F.2d at 1310.
26. See Attorney General's 1986 Amendments Memorandum at 7; see, e.g., Tax
Analysts, 294 F.3d at 79 (explaining that "the legislative history makes it clear that
Congress intended the amended exemption to protect both investigatory and non-investigatory materials, including law enforcement manuals and the like"); PHE, Inc.
v. Dep't of Justice, 983 F.2d 248, 249, 251 (D.C. Cir. 1993) (holding portions of FBI's
Manual of Investigative Operations and Guidelines properly withheld pursuant to
Exemption 7(E)); Ctr. for Nat'l Sec. Studies v. INS, No. 87-2068, 1990 WL 236133, at *6
(D.D.C. Dec. 19, 1990) (reiterating that documents relating to INS's law enforcement
procedures meet threshold requirement as "purpose in preparing these documents
relat[es] to legitimate concerns that federal immigration laws have been or may be
violated"). But see Maydak, 254 F. Supp. 2d 23, 38 (D.D.C. 2003) (finding that Bureau
of Prisons failed to satisfy law enforcement threshold for records in its Inmate
Central Records System, which it described as concerning day-to-day activities and
events occurring during inmates' confinement); Cowsen-El v. United States Dep't of
Justice, 826 F. Supp. 532, 533 (D.D.C. 1992) (explaining that threshold is not met by
Bureau of Prisons guidelines covering how prison officials should count and inspect
27. See Rural Hous., 498 F.2d at 80-82 (finding that threshold of Exemption 7 met if
investigation focuses directly on specific illegal acts which could result in civil or
criminal penalties); Southam News v. INS, 674 F. Supp. 881, 887 (D.D.C. 1987) (finding
that, based upon pre-1986 language, INS Lookout Book used to assist in exclusion of
inadmissible aliens satisfies threshold requirement); U.S. News & World Report v.
Dep't of the Treasury, No. 84-2303, 1986 U.S. Dist. LEXIS 27634, at *5 (D.D.C. Mar. 26,
1986) (reasoning that records pertaining to acquisition of two armored limousines for
President meet threshold test when activities involved investigation of how best to
safeguard President); Nader v. ICC, No. 82-1037, slip op. at 10-11 (D.D.C. Nov. 23, 1983)
(deciding that disbarment proceedings meet Exemption 7 threshold because they
are "quasi-criminal" in nature).
28. See, e.g., Rugiero v. United States Dep't of Justice, 257 F.3d 534, 550 (6th Cir.
2001) (explaining that the "Court has adopted a per se rule" that applies not only to
criminal enforcement actions, but to "records compiled for civil enforcement
purposes as well"), cert. denied, 534 U.S. 1134 (2002); Detroit Free Press, Inc. v. Dep't
of Justice, 73 F.3d 93, 96 (6th Cir. 1996) (recognizing that United States Marshals
Service's mug shots of federal indictees were compiled for law enforcement
purposes); Koch v. USPS, No. 93-1487, 1993 WL 394629, at *1 (8th Cir. Oct. 8, 1993)
(determining that report initiated by allegation that postal service employee
threatened to bring grenade to work was compiled for law enforcement purposes);
Rural Hous., 498 F.2d at 81 & n.46 (holding that the "character of the statute violated
would rarely make a material distinction, because the law enforcement purposes . . .
include both civil and criminal purposes"); Williams v. IRS, 479 F.2d 317, 318 (3d Cir.
1973) (affirming that data compiled in connection with audit of individual's income
tax liability was compiled for law enforcement purposes); Black & Decker Corp. v.
United States, No. 02-2070, 2004 WL 500847, at *3 (D. Md. Feb. 19, 2004) (stating that
"law enforcement" includes both civil and criminal matters); Judicial Watch, Inc. v.
Rossotti, No. 01-2672, U.S. Dist. 2002 LEXIS 25213, at **19-20 (D. Md. Dec. 16, 2002)
(ruling that letters written by citizens concerned about plaintiff's compliance with
IRS laws were compiled for "civil law enforcement purposes"), aff'd sub nom. Judicial
Watch, Inc. v. United States, 84 Fed. Appx. 335 (4th Cir. 2004), petition for cert. filed,
72 U.S.L.W. 3644 (U.S. Apr. 5, 2004) (No. 03-1389); Schiller v. INS, 205 F. Supp. 2d 648,
659 (W.D. Tex. 2002) (stating that "[l]aw enforcement for purposes of the FOIA is not
limited strictly to criminal investigations but also includes within its scope civil
investigations" (citing Rugiero, 257 F.3d at 550)); Baltimore Sun v. United States
Marshals Serv., 131 F. Supp. 2d 725, 728 n.2 (D. Md. 2001) (reasoning that United
States Marshals Service forfeiture records satisfy threshold because agency is
responsible for "enforcement of civil and criminal seizure and forfeiture laws");
Youngblood v. Comm'r of Internal Revenue, No. 2:99-9253, 2000 WL 852449, at *10
(C.D. Cal. Mar. 7, 2000) (holding that IRS "investigations or proceedings in the civil or
criminal context" satisfy the threshold); Abraham & Rose, P.L.C. v. United States, 36
F. Supp. 2d 955, 956 (E.D. Mich. 1998) (affirming that records compiled by IRS to
collect outstanding tax debts satisfy Exemption 7 threshold); Ligorner v. Reno, 2 F.
Supp. 2d 400, 404 (S.D.N.Y. 1998) (holding that letter used during Office of
Professional Responsibility investigation into allegations of misconduct by
Department of Justice attorneys was compiled for law enforcement purposes). But
see Jefferson v. Dep't of Justice, 284 F.3d 172, 179 (D.C. Cir. 2002) (declining to find
that all Department of Justice Office of Professional Responsibility records regarding
a Assistant United States Attorney are law enforcement records, particularly
because the "Department's regulations describe OPR as a mixed-function agency
with responsibilities that embrace not only investigations of violations of law and
breaches of professional standards that may result in civil liability, . . . but breaches
of internal Department guidelines that may lead to disciplinary proceedings . . . of
such non-law violations"); Allnutt, 99 F. Supp. 2d at 680 (holding that "the Court is
unable to understand how the bankruptcy proceeding that generated the record
qualifies as a law enforcement activity").
29. See, e.g., Beard v. Espy, No. 94-16748, 1995 WL 792071, at *1 (9th Cir. Dec.
11,1995) (protecting complaint letter and notes compiled during criminal
investigation involving USDA loans); Ortiz v. HHS, 70 F.3d 729, 730 (2d Cir. 1995)
(holding that unsigned, unsolicited letter used to launch criminal investigation by
Social Security Administration meets threshold for law enforcement purposes,
although no charges filed against target); Solar Sources v. United States, No. 96-0772,
slip op. at 5 (S.D. Ind. Mar. 10, 1997) (holding that criminal antitrust investigation of
explosives industry was "indisputably" compiled for law enforcement purposes),
aff'd, 142 F.3d 1033 (7th Cir. 1998); Hoffman v. Brown, No. 1:96-53, slip op. at 4
(W.D.N.C. Nov. 26, 1996) (finding that information compiled by VA police canvassing
plaintiff's neighbors regarding "alleged criminal activity of plaintiff at home" meets
threshold), aff'd, 145 F.3d 1324 (4th Cir. 1998) (unpublished table decision); Mavadia v.
Caplinger, No. 95-3542, 1996 WL 592742, at *2 (E.D. La. Oct. 11, 1996) (finding that both
civil and criminal investigations of possible violations of immigration laws satisfy
threshold); Cappabianca v. Comm'r, United States Customs Serv., 847 F. Supp. 1558,
1565 (M.D. Fla. 1994) (stating that records of internal investigation focusing
specifically on alleged acts that could result in civil or criminal sanctions were
compiled for law enforcement purposes); Stone v. Def. Investigative Serv., 816 F.
Supp. 782, 787 (D.D.C. 1993) (protecting foreign counterintelligence investigation and
investigation into possible violation of federal statute), appeal dismissed for failure
to prosecute, No. 93-5178 (D.C. Cir. Mar. 11, 1994); Buffalo Evening News, Inc. v.
United States Border Patrol, 791 F. Supp. 386, 394 (W.D.N.Y. 1992) (reasoning that
USBP form meets threshold because it is generated in investigations of violations of
federal immigration law).
30. See, e.g., Ctr. for Nat'l Policy Review, 502 F.2d at 373 (holding that administrative
determination has "salient characteristics of 'law enforcement' contemplated" by
Exemption 7 threshold requirement); Schiller, 205 F. Supp. 2d at 559 (stating that "law
enforcement" for purposes of FOIA includes regulatory proceedings (citing Rugiero,
257 F.3d at 550)); Hidalgo v. Bureau of Prisons, No. 00-1229, slip op. at 3 (D.D.C. June 6,
2001) (determining that records compiled during investigation of prisoner for
violating institutional rules and regulations satisfy threshold), summary affirmance
granted, No. 01-5257, 2002 WL 1997999 (D.C. Cir. Aug. 29, 2002); McErlean v. Dep't of
Justice, No. 97-7831, 1999 WL 791680, at *8 (S.D.N.Y. Sept. 30, 1999) (stating that "it is
well-settled that documents compiled by the INS in connection with the
administrative proceedings authorized by the Immigration and Naturalization Act
are documents compiled for 'law enforcement purposes'"); Gen. Elec. Co. v. EPA, 18
F. Supp. 2d 138, 143-44 (D. Mass. 1998) (reasoning that EPA decision to classify a site
as contaminated "is not an enforcement action at all but rather ordinary informal
rulemaking," which would ordinarily not meet Exemption 7 threshold, though in this
case it did because "it is entirely reasonable for the agency to anticipate that
enforcement proceedings are in the offing"); Johnson v. DEA, No. 97-2231, 1998 U.S.
Dist. LEXIS 9802, at *9 (D.D.C. June 25, 1998) (reiterating that "law being enforced
may be . . . regulatory"); Straughter v. HHS, No. 94-0567, slip op. at 4 (S.D. W. Va.
Mar. 31, 1995) (magistrate's recommendation) (finding threshold met by records
compiled by HHS's Office of Civil Rights in course of investigation of handicap
discrimination as violation of Rehabilitation Act), adopted (S.D. W. Va. Apr. 17, 1995);
Kay v. FCC, 867 F. Supp. 11, 16-18 (D.D.C. 1994) (explaining that FCC's statutory
authority to revoke licenses or deny license applications is qualifying law
enforcement purpose); Aircraft Gear Corp. v. NLRB, No. 92-C-6023, slip op. at 10 (N.D.
Ill. Mar. 14, 1994) (stating that documents created in connection with NLRB unfair
labor practices cases and union representation case meet threshold); Ehringhaus v.
FTC, 525 F. Supp. 21, 22-23 (D.D.C. 1980) (deciding that documents prepared as part
of FTC investigation into advertising practices of cigarette manufacturers meet
31. See Ctr. for Nat'l Sec. Studies, 331 F.3d at 926 (finding law enforcement
threshold met by records compiled in course of investigation into "breach of this
nation's security"); Living Rivers, 272 F. Supp. 2d at 1321 (finding that terrorists could
make use of downstream flooding projections from agency's dam "inundation maps,"
and obliquely referring to "a dam failure as [seeking] a 'weapon of mass
destruction'"); Coastal Delivery Corp. v. United States Customs Serv., 272 F. Supp. 2d
958, 964-65 (C.D. Cal. 2003) (ruling that terrorists could use information to avoid
detection and to direct "merchandise to vulnerable ports"), reconsideration denied,
No. 02-3838, 2002 WL 21507775 (C.D. Cal. June 13, 2003), appeal dismissed voluntarily,
No. 03-55833 (9th Cir. Aug. 26, 2003); see also Pratt v. Webster, 673 F.2d 408, 421 (D.C.
Cir. 1982) (explaining that "to pass the FOIA Exemption 7 threshold," agencies must
establish that their activities are based on a concern that "federal laws have been or
may be violated or that national security may be breached" (emphasis added)).
32. 331 F.3d at 926, 929.
33. See id. at 929 ("While the name of any individual detainee may appear innocuous
or trivial, it could be of great use to al Qaeda in plotting future terrorist attacks or
intimidating witnesses in the present investigation."); Living Rivers, 272 F. Supp. 2d
at 1321 (reasoning that terrorists could use "inundation maps" to aid in carrying out
attacks on dams both in choosing potential targets and in selecting particular, more
vulnerable features of certain dams); Coastal Delivery, 272 F. Supp. 2d at 964, 966
(explaining that information that appears to be "innocuous on its own" could
reasonably be used by "potential terrorists and smugglers" to circumvent law
enforcement procedures); see also FOIA Post, "FOIA Officers Conference Held on
Homeland Security" (posted 7/3/03) (discussing recent case law developments, and
advising on the "increasing significance of both information sharing and information
safeguarding in connection with sensitive homeland security information"); cf. FOIA
Post, "Guidance on Homeland Security Information Issued" (posted 3/21/02)
(stressing need for safeguarding not only classified records but also "sensitive
information related to America's homeland security that might not meet"
34. See Ctr. for Nat'l Sec. Studies, 331 F.3d at 926, 928 (explaining that "America
faces an enemy" and that the terrorism investigation into this "heinous violation" is
one of the Department of Justice's chief law enforcement duties); Living Rivers, 272
F. Supp. 2d at 1320 (concluding that "inundation maps" were compiled for law
enforcement purposes because they are used for homeland security as part of the
Department of the Interior's "Emergency Action Plans and to protect and alert
potentially threatened people"); see also Pratt, 673 F.2d at 410, 422-23 (finding that
documents gathered during the investigation of the Black Panther Party, "an
allegedly subversive and violent domestic organization," met law enforcement
threshold because investigation involved "prevention of violence" on American soil);
Ayyad v. United States Dep't of Justice, No. 00-960, 2002 WL 654133, at **8-12
(S.D.N.Y. Apr. 17, 2002) (ruling that the information satisfies Exemption 7's threshold,
because it "is clearly related to law enforcement proceedings and was compiled by
the FBI to investigate" the 1993 World Trade Center bombing); Judicial Watch, Inc. v.
Reno, No. 00-0723, slip op. at 21 (D.D.C. Mar. 30, 2001) (stating that "information
related to an investigation of possible terrorist threats . . . is sufficient to meet" the
threshold); Morales Cozier, No. 99-0312, slip op. at 14-15 (N.D. Ga. Sept. 25, 2000)
(explaining that the law enforcement threshold is met by an investigation of
activities that "could have presented an interference with United States foreign
policy or national security"); cf. Jabara v. Webster, 691 F.2d 272, 279-80 (6th Cir. 1982)
(clarifying, in a Privacy Act case, that an investigation encompassing the exercise of
First Amendment rights is not barred if it is relevant to an authorized criminal, civil,
administrative, or intelligence investigation).
35. 331 F.3d at 932; see also Zadvydas v. Davis, 533 U.S. 678, 696 (2001) (noting that
circumstances of "terrorism" can warrant heightened deference) (non-FOIA case);
Dep't of the Navy v. Egan, 484 U.S. 518, 530 (1988) (stating that courts are reluctant to
intrude into "national security affairs") (non-FOIA case); cf. North Jersey Media Group
v. Ashcroft, 308 F.3d 198, 200-03 (3d Cir. 2002) (holding that closure of "special
interest" deportation hearings involving detainees with alleged connections to
terrorism does not violate First Amendment when "open hearings might impair
national security" by disclosing potentially sensitive information) (non-FOIA case),
cert. denied, 123 S. Ct. 2215 (2003).
36. See Hopkinson, 866 F.2d at 1222 n.27 (holding that Exemption 7 applies "to FBI
laboratory tests conducted at the request of local law enforcement authorities");
Franklin v. DEA, No. 97-1225, slip op. at 7 (S.D. Fla. June 26, 1998) (stating that
documents compiled for "federal or state" law enforcement purposes meet
threshold); Code v. FBI, No. 95-1892, 1997 WL 150070, at *5 (D.D.C. Mar. 26, 1997)
(finding that documents compiled in connection with FBI's efforts to assist local
police in homicide investigations meet threshold); Butler, 888 F. Supp. at 180, 182
(finding that Air Force personnel background report -- requested by local law
enforcement agency for its investigation into murder -- was compiled for law
enforcement purposes); Kuffel v. Bureau of Prisons, 882 F. Supp. 1116, 1124 (D.D.C.
1995) (ruling that information from state law enforcement agency investigating
various state crimes qualifies); Wojtczak v. United States Dep't of Justice, 548 F.
Supp. 143, 146-48 (E.D. Pa. 1982) ("This Court must therefore interpret the statute as
written and concludes that Exemption 7 applies to all law enforcement records,
federal, state, or local, that lie within the possession of the federal government"); see
also Shaw v. FBI, 749 F.2d 58, 64 (D.C. Cir. 1984) (explaining that authorized federal
investigation into commission of state crime constitutes valid criminal law
enforcement investigation, which qualifies confidential source-provided information
for protection under second half of Exemption 7(D)); Palacio v. United States Dep't of
Justice, No. 00-1564, 2002 U.S. Dist. LEXIS 2198, at *16 (D.D.C. Feb. 11, 2002)
(explaining that records of investigation conducted by city task force were "created
or compiled" for law enforcement purposes and thus satisfy threshold), summary
affirmance granted, No. 02-5247, 2003 U.S. App. LEXIS 1804 (D.C. Cir. Jan. 31, 2003);
Rojem v. United States Dep't of Justice, 775 F. Supp. 6, 10 (D.D.C. 1991) (determining
that material provided to FBI by state law enforcement agency for assistance in that
state agency's criminal investigation is "compiled for law enforcement purposes"),
appeal dismissed for failure to timely file, No. 92-5088 (D.C. Cir. Nov. 4, 1992).
37. See, e.g., Bevis v. Dep't of State, 801 F.2d 1386, 1388 (D.C. Cir. 1986) (finding no
distinction between foreign and domestic enforcement purposes in language of
statute); Zevallos-Gonzalez v. DEA, No. 97-1720, slip op. at 9 (D.D.C. Sept. 25, 2000)
(concluding that documents generated during an investigation conducted under the
"authority of Peruvian laws and under the authority granted to the DEA under the
Controlled Substance Act to pursue the agency's law enforcement obligations under
both United States statutes and international agreements . . . were compiled for law
enforcement purposes"); Schwarz v. United States Dep't of Justice, No. 95-2162, slip
op. at 6 (D.D.C. May 31, 1996) (stating that information compiled by INTERPOL at
behest of foreign government meets requirements), summary affirmance granted,
No. 96-5183 (D.C. Cir. Oct. 23, 1996); Donovan v. FBI, 579 F. Supp. 1111, 1119-20
(S.D.N.Y. 1983) (stating that an FBI investigation undertaken and laboratory tests
performed in support of a foreign government's efforts to identify and prosecute
perpetrators of crimes satisfy threshold, and reasoning that "refusing to apply
Exemption 7 to foreign law enforcement might have the practical effect of interfering
with cooperation and information sharing"), vacated on other grounds on motion for
reconsideration, 579 F. Supp. 1124 (S.D.N.Y.), appeal dismissed as moot, 751 F.2d 368
(2d Cir. 1984); see also FOIA Update, Vol. V, No. 2, at 6-7 (reasoning that records
compiled for "nonfederal" investigations satisfy threshold, because "Exemption 7's
threshold requirement . . . makes no reference to federal investigations, nor can any
such limitation logically be inferred").
38. See, e.g., Ponder, No. 98-3097, slip op. at 5 (D.D.C. Jan. 22, 2001) (ruling that
records were compiled for law enforcement purpose despite fact that subject was
never prosecuted); Goldstein v. Office of Indep. Counsel, No. 87-2028, 1999 WL
570862, at **8-9 (D.D.C. July 29, 1999) (magistrate's recommendation) (determining
that investigation of perennial presidential candidate Lyndon LaRouche for possible
criminal violations was for legitimate law enforcement purpose even if that
investigation "went nowhere").
39. See, e.g., Rosenfeld, 57 F.3d at 808-09 (finding no law enforcement purpose
when "documents all support a conclusion that . . . any asserted purpose for
compiling these documents was pretextual"); Weissman v. CIA, 565 F.2d 692, 696
(D.C. Cir. 1977) (ruling that the CIA's "full background check within the United States
of a citizen who never had any relationship with the CIA is not authorized and the
law enforcement exemption is accordingly unavailable"); Taylor v. United States
Dep't of Justice, 257 F. Supp. 2d 101, 108 (D.D.C. 2003) (stating that investigations
must be "'within the agency's law enforcement authority'" (quoting Whittle v.
Moschella, 756 F. Supp. 589, 593 (D.D.C. 1991))), reconsideration denied, 268 F. Supp.
2d 34 (D.D.C. 2003), appeal dismissed for failure to prosecute, No. 03-5111, 2003 WL
2205968 (D.C. Cir. Aug. 19, 2003); Enviro Tech Int'l v. EPA, No. 02 C 4650, slip op. at 14
(N.D. Ill. Mar. 11, 2003) (describing Exemption 7 as having "hook" that can in some
cases restrict its use to "only those documents relating to specifically authorized
agency activities"); Youngblood, No. 2:99-9253, 2000 WL 852449, at *10 (concluding
that the "authority bestowed upon IRS by Congress to enforce the internal revenue
laws . . . is an extraordinarily broad mandate . . . [which is] analogous to that of a
grand jury"); Miscavige v. IRS, No. 91-3721, slip op. at 2, 5 (C.D. Cal. Dec. 9, 1992)
(finding no law enforcement purpose for post-1986 documents because IRS
investigation concluded in 1985); cf. Kuzma v. IRS, 775 F.2d 66, 69 (2d Cir. 1985)
(declaring that unauthorized or illegal investigative tactics may not be shielded from
public by use of FOIA exemptions). But cf. Pratt, 673 F.2d at 422-23 (explaining that
"Exemption 7 refers to purposes rather than methods" and that "[w]hile many of the
FBI's goals and methods in its COINTELPRO activities against the [Black Panther
Party] give us serious pause," such as the goal to prevent "militant black nationalist
groups and leaders from gaining respectability by discrediting them," these
questionable methods do not defeat the exemption's coverage when law
enforcement is the primary purpose because, "[f]rom the record before us, we
cannot conclude that [the FBI's concern about violence] was implausible or
irrational"); Hrones v. CIA, 685 F.2d 13, 19 (1st Cir. 1982) (legality of agency's actions in
national security investigation falls outside scope of judicial review in FOIA action).
40. S. Conf. Rep. No. 93-1200, at 12 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6291.
41. See, e.g., Mittleman v. OPM, 76 F.3d 1240, 1241-43 (D.C. Cir. 1996) (OPM
background investigation); Rosenfeld, 57 F.3d at 809 ("FBI government appointment
investigations"); Pontecorvo v. FBI, No. 00-1511, slip op. at 37-38 (D.D.C. Sept. 30, 2001)
(background investigation of potential employee); Melius v. Nat'l Indian Gaming
Comm'n, No. 92-2210, 1999 U.S. Dist. LEXIS 17537, at **6, 15 (D.D.C. Nov. 3, 1999)
("suitability investigations" for gaming contracts); Assassination Archives, 903 F.
Supp. at 132 (FBI "background investigations"); Bostic v. FBI, No. 1:94 CV 71, slip op.
at 2, 11 (W.D. Mich. Dec. 16, 1994) (FBI pre-employment investigation); Doe v. United
States Dep't of Justice, 790 F. Supp. 17, 20-21 (D.D.C. 1992) (background investigation
of individual conditionally offered employment as attorney); Miller v. United States,
630 F. Supp. 347, 349 (E.D.N.Y. 1986) (USIA background-security investigation of
federal job applicant); Koch v. Dep't of Justice, 376 F. Supp. 313, 315 (D.D.C. 1974)
(background investigations fall within Exemption 7 because they involve
determinations as to whether applicants engaged in criminal conduct that would
disqualify them for federal employment); see also FOIA Update, Vol. VI, No. 4, at 6.
42. Stern v. FBI, 737 F.2d 84, 89 (D.C. Cir. 1984); see also Perlman v. United States
Dep't of Justice, 312 F.3d 100, 103, 105 (2d Cir. 2002) (discussing allegations of
preferential treatment and undue access and influence in INS Investor Visa Program
by former INS general counsel, and finding that records compiled during
investigation into allegations satisfy Exemption 7's threshold, because such acts
could subject him to criminal or civil penalties), cert. granted, vacated & remanded,
72 U.S.L.W. 3632 (U.S. Apr. 5, 2004) (No. 02-1270); Ford v. West, No. 97-1342, 1998 WL
317561, at *4 (10th Cir. June 12, 1998) (finding that investigation into alleged racial
harassment meets threshold); Kimberlin v. Dep't of Justice, 139 F.3d 944, 947-48 (D.C.
Cir. 1998) (concluding that an investigation "conducted in response to and focused
upon a specific, potentially illegal release of information by a particular, identified
official" satisfies the threshold); Strang v. Arms Control & Disarmament Agency, 864
F.2d 859, 862 (D.C. Cir. 1989) (characterizing agency investigation into employee
violation of national security laws as law enforcement); Edmonds v. FBI, 272 F. Supp.
2d 35, 42, 54 (D.D.C. 2003) (ruling that the agency has met the law enforcement
threshold for material compiled during investigations into plaintiff's allegations of
"serious problems, misconduct, security lapses, a breakdown in quality, and gross
incompetence" in the FBI's translation unit (quoting plaintiff's brief)); Lewis v. United
States, No. 02-3249, slip op. at 1, 6 (C.D. Cal. June 2, 2003) (finding that investigation
of alleged unauthorized collection action by IRS employees was for law enforcement
purposes); Mueller v. Dep't of the Air Force, 63 F. Supp. 2d 738, 742 (E.D. Va. 1999)
(holding that the investigation into prosecutorial misconduct was for law
enforcement purposes because "'an agency investigation of its own employees is for
law enforcement purposes . . . if it focuses directly on specifically alleged illegal acts,
illegal acts of a particular identified official, acts which could, if proved, result in civil
or criminal sanctions'" (quoting Stern, 737 F.2d at 89)); Hayes v. United States Dep't of
Labor, No. 96-1149, 1998 U.S. Dist. LEXIS 14120, at **11-12 (S.D. Ala. June 10, 1998)
(explaining that records of "internal agency investigations are considered to be
compiled for 'law enforcement purposes' when the investigations focus on
specifically alleged acts, which, if proved, could amount to violations of civil or
criminal law"), adopted (S.D. Ala. Aug. 10, 1998); Ligorner, 2 F. Supp. 2d at 402-04
(finding threshold satisfied by investigation into allegations of misconduct by Justice
Department attorneys); Lurie v. Dep't of the Army, 970 F. Supp. 19, 36 (D.D.C. 1997)
(explaining that threshold met because investigation focused directly on specifically
alleged illegal acts of identified officials (citing Rural Hous., 498 F.2d at 81)), appeal
dismissed voluntarily, No. 97-5248 (D.C. Cir. Oct. 22, 1997); Linn v. United States Dep't
of Justice, No. 92-1406, 1995 WL 631847, at *22 (D.D.C. Aug. 22, 1995) ("[D]ocuments
compiled for purposes of internal discipline of employees are not compiled for law
enforcement purposes . . . [b]ut such internal monitoring of employees may be 'for
law enforcement purposes' if the focus of the investigation concerns acts that could
result in civil or criminal sanctions." (quoting Stern, 737 F.2d at 89)), appeal dismissed
voluntarily, No. 97-5122 (D.C. Cir. July 14, 1997); Housley v. United States Dep't of the
Treasury, 697 F. Supp. 3, 5 (D.D.C. 1988) (reiterating that investigation concerning
misconduct by special agent which, if proved, could have resulted in federal civil or
criminal sanctions qualifies as law enforcement); cf. Favish, 124 S. Ct. at 1582
(recognizing realistically that "[a[llegations of government misconduct are 'easy to
allege and hard to disprove'" (quoting Crawford-El v. Britton, 523 U.S. 574, 585 (1998)));
In re Dep't of Investigation of N.Y., 856 F.2d 481, 485 (2d Cir. 1988) (explaining that the
law enforcement privilege applies in the discovery context when the investigation
served the "dual purposes of evaluating conduct in office and enforcing the criminal
law") (non-FOIA case).
43. Stern, 737 F.2d at 89 (dictum) (reminding that "it is necessary to distinguish
between those investigations conducted 'for a law enforcement purpose' and those
in which an agency, acting as the employer, simply supervises its own employees");
see also Jefferson, 284 F.3d at 177-78 (ruling that agencies must distinguish between
records based on "allegations that could lead to civil or criminal sanctions" and
records "maintained in the course of general oversight of government employees");
Patterson v. IRS, 56 F.3d 832, 837-38 (7th Cir. 1995) (holding that the "general citation
to an entire body of statutes contained in the United States Code under the heading
'Equal Employment Opportunity statutes'" does not establish a law enforcement
purpose, and declaring that the agency must "'distinguish between internal
investigations conducted for law enforcement purposes and general agency
monitoring'" (quoting Stern, 727 F.2d at 89)); Rural Hous., 498 F.2d at 81
(distinguishing between agency oversight of performance of employees and
investigations focusing on specific illegal acts of employees); Wood v. FBI, No.
3:02cv2058, 2004 U.S. LEXIS 5525, at *34 (D. Conn. Mar. 31, 2004) (reiterating that "'an
investigation conducted by a federal agency for the purpose of determining whether
to discipline employees for activity which does not constitute a violation of law is not
for law enforcement purposes under Exemption 7'" (quoting Stern, 737 F.2d at 90));
Jefferson v. United States Dep't of Justice, No. 01-1418, slip op. at 16 (D.D.C. Mar. 31,
2003) (finding that Office of Inspector General records concerning particular federal
employee were not oversight records of internal agency monitoring, because they
were compiled during investigation into her failure to comply with court order),
motion for reconsideration granted on other grounds, No. 01-1418 (D.D.C. Nov. 14,
2003); Varville v. Rubin, No. 3:96CV00629, 1998 WL 681438, at *14 (D. Conn. Aug. 18,
1998) (explaining that the threshold was not met by a report discussing possible
ethical violations and prohibited personnel practices because the inquiry "more
closely resembles an employer supervising its employees than an investigation for
law enforcement purposes"); Lurie, 970 F. Supp. at 36 ("The general internal
monitoring by an agency of its own employees is not shielded from public scrutiny
under Exemption 7, because 'protection of all such internal monitoring under
Exemption 7 would devastate FOIA.'" (quoting Stern, 737 F.2d at 89)); Fine v. United
States Dep't of Energy, 823 F. Supp. 888, 907-08 (D.N.M. 1993) (ruling that threshold
met by agency with both administrative and law enforcement functions when
documents were compiled during investigation of specific allegations and not as
part of routine oversight); Cotton v. Adams, 798 F. Supp. 22, 25 (D.D.C. 1992) (holding
that agency's internal investigation of its own employees satisfies threshold only if it
focuses directly on illegal acts that could result in criminal or civil sanctions;
Greenpeace USA, Inc. v. EPA, 735 F. Supp. 13, 15 (D.D.C. 1990) (threshold was not met
by internal investigation into whether employee complied with agency conflict-of-interest regulations). But cf. Nagel v. HEW, 725 F.2d 1438, 1441 (D.C. Cir. 1984)
(holding that the "employer's determination whether a federal employee is
performing his job adequately constitutes an authorized law enforcement activity"
within the meaning of subsection (e)(7) of the Privacy Act of 1974, 5 U.S.C. Â§ 552a
44. Edmonds, 272 F. Supp. 2d at 42, 54.
45. Ligornor, 2 F. Supp. 2d at 402-03.
46. Kimberlin, 139 F.3d at 946-47.
47. Ford, 1998 WL 317561, at **1-2.
48. Greenpeace, 735 F. Supp. at 14-15.
49. Patterson, 56 F.3d at 837.
50. Cotton, 798 F. Supp. at 25; see also Jefferson, 284 F.3d at 178-79 (stating that
oversight of performance, including review of violations of agency rules, does not
qualify as "law enforcement" within meaning of Exemption 7); Wood, 2004 U.S. Dist.
LEXIS 5525, at *37 (finding that employee conduct at issue involved only "violations of
agency policy" and thus did not satisfy threshold).
51. Rural Hous., 498 F.2d at 82 (stating that the "purpose of the 'investigatory files' is
thus the critical factor," and reiterating that an agency must distinguish between its
"surveillance of the performance of duties by government employees [and its] inquiry
as to an identifiable possible violation of law"); Stern, 737 F.2d at 89 (emphasizing
that an agency's "general internal monitoring of its own employees to insure
compliance with the agency's statutory mandate and regulations is not protected
from public scrutiny under Exemption 7 . . . [and that] an agency's investigation of its
own employees is for 'law enforcement purposes' only if it focuses 'directly on
specifically alleged illegal acts, illegal acts of particular identified officials, acts
which could, if proved, result in civil or criminal sanctions'" (quoting Rural Hous., 498
F.2d at 81)).
52. See, e.g., Jefferson, 284 F.3d at 176 (finding, based upon existing regulations,
that Department of Justice's Office of Professional Responsibility conducts "both law
enforcement and non-law enforcement activities"); Cotton, 798 F. Supp. at 25 (stating
that while "the [Office of] Inspector General has the ability to conduct
investigations," it also looks into "internal matters concerning agency inefficiency and
mismanagement," so its documents "could merely" pertain to an alleged violation of
the agency's own rules); Greenpeace, 735 F. Supp. at 15 (finding that documents at
issue concerned mere compliance with agency regulations).
53. See Attorney General's 1986 Amendments Memorandum at 7.
54. See Lewis v. IRS, 823 F.2d 375, 379 (9th Cir. 1987) (holding the threshold met
when the IRS "had a purpose falling within its sphere of enforcement authority in
compiling particular documents"); Birch v. USPS, 803 F.2d 1206, 1210-11 (D.C. Cir. 1986)
(explaining that threshold was met because enforcement of laws regarding use of
mails falls within statutory authority of Postal Service); Church of Scientology v.
United States Dep't of the Army, 611 F.2d 738, 748 (9th Cir. 1979) (remanding to Naval
Investigative Service for it to show that investigation involved enforcement of
statute or regulation within its authority); Irons v. Bell, 596 F.2d 468, 473 (1st Cir. 1979)
(determining that mixed-function agency must demonstrate purpose falling within
its sphere of enforcement authority); see also Cooper Cameron Corp. v. Dep't of
Labor, 280 F.3d 539, 545 (5th Cir. 2002) (observing that "Congress obviously intended
OSHA inspections to be part of an enforcement program," particularly when the
agency is responding to a workplace accident); Coulter v. Reno, No. 98-35170, 1998
WL 658835, at *1 (9th Cir. Sept. 17, 1998) (holding threshold met by records of Navy
criminal investigation into allegations of lewd and lascivious conduct by Navy
personnel); Church of Scientology Int'l v. IRS, 995 F.2d 916, 919 (9th Cir. 1993) ("This
court has clearly held that the IRS has the 'requisite law enforcement mandate'"
through its enforcement provisions of the federal tax code (quoting Lewis, 823 F.2d
at 379)); Moye, O'Brien, O'Rourke, Hogan & Pickert v. Nat'l R.R. Passenger Corp., No.
6:02-CV-126, 2003 WL 21146674, at *17 (M.D. Fla. May 13, 2003) (reiterating that an
agency "with mixed law enforcement and non-law enforcement functions requires
the Court to consider the purpose of the investigation and to determine whether the
information was gathered as part of an inquiry about a potential violation of the law,
rather than in the course of the agency's administrative function of overseeing
compliance with its rules and regulations") (appeal pending); Carp v. IRS, No. 00-5992, 2002 WL 373448, at **4-5 (D.N.J. Jan. 28, 2002) (determining that IRS
investigation targeting individual for possible violation of federal tax law satisfies
threshold); Wayne's Mech. & Maint. Contractor, Inc. v. Dep't of Labor, No. 1:00-45, slip
op. at 7 n.2 (N.D. Ga. May 7, 2001) (concluding that records compiled by OSHA during
investigation of industrial accident were within agency's statutory law enforcement
mandate); Phila. Newspapers, Inc. v. HHS, 69 F. Supp. 2d 63, 67 (D.D.C. 1999) (holding
that investigative records created in response to specific allegations of Medicare
fraud by physicians at a teaching hospital were compiled for law enforcement
55. Rural Hous., 498 F.2d at 81; see Pac. Energy Inst. v. IRS, No. 94-36172, 1996 WL
14244, at *1 (9th Cir. Jan. 16, 1996) (accepting that investigations involving
enforcement of Internal Revenue Code satisfy threshold); Becker v. IRS, 34 F.3d 398,
407 (7th Cir. 1994) (holding that IRS has "law enforcement purpose in investigating
potential illegal tax protester activity"); Church of Scientology, 995 F.2d at 919
(finding that IRS Exempt Organizations Division "performs law enforcement function
by enforcing provisions of the federal tax code"); Means v. Segal, No. 97-1301, slip op.
at 12 (D.D.C. Mar. 18, 1998) (magistrate's recommendation) (holding that Federal
Labor Relations Authority is charged with statutory responsibility to conduct
investigations related to unfair labor practices and records related to this duty meet
threshold), adopted (D.D.C. Apr. 15, 1998), aff'd on other grounds, No. 98-5170 (D.C.
Cir. Oct. 6, 1998); cf. Reed v. NLRB, 927 F.2d 1249, 1252 (D.C. Cir. 1991) (noting
"skepticism" of government's alternative argument regarding application of
Exemption 7(C)'s threshold to lists of names and addresses of eligible voters in union
representative election compiled for NLRB compliance purposes).
56. Living Rivers, 272 F. Supp. 2d at 1318-20; Coastal Delivery, 272 F. Supp. 2d at 963.
57. 272 F. Supp. 2d at 1318.
58. Id. at 1318-19 (quoting "General Authority of Secretary of the Interior," 43
U.S.C.A. Â§ 373b(a) (2000 & Supp. I 2001), pertaining to law enforcement authority
granted to Bureau of Reclamation, specifically regarding public safety).
59. Id. at 1319-20.
60. Id. (quoting John Doe Agency, 493 U.S. at 153-54).
61. 272 F. Supp. 2d at 963; see also Favish, 124 S. Ct. at 1576 (stating succinctly that
"[i]t is common ground among the parties that the death-scene photographs in OIC's
possession are 'records or information compiled for law enforcement purposes' as
that phrase is used in Exemption 7(C)"); cf. Ctr. for Nat'l Sec. Studies, 331 F.3d at 926
(stating that the "terrorism investigation [into the events of September 11, 2001] is
one of DOJ's chief 'law enforcement duties' at this time," and thereby merging
national security and homeland security concerns into "law enforcement purposes").
62. 272 F. Supp at 963.
63. Compare Crowell & Moring v. DOD, 703 F. Supp. 1004, 1009-10 (D.D.C. 1989)
(holding that solicitation and contract bids may be protected), and Gould Inc. v. GSA,
688 F. Supp. 688, 691 (D.D.C. 1988) (finding that routine audit reports may be
protected), with John Doe Corp. v. John Doe Agency, 850 F.2d 105, 109 (2d Cir. 1988)
(ruling that routine audit reports are not protectable), rev'd & remanded, 493 U.S. 146
(1989), and Hatcher v. United States Postal Serv., 556 F. Supp. 331, 335 (D.D.C. 1982)
(holding that routine contract negotiation and oversight material is not protectible).
64. John Doe Agency v. John Doe Corp., 493 U.S. at 153; see also KTVY-TV v. United
States, 919 F.2d 1465, 1469 (10th Cir. 1990) (per curiam) (applying John Doe Agency to
hold that information regarding personnel interview conducted before investigation
commenced and later recompiled for law enforcement purposes satisfied Exemption
7 threshold); Kansi v. United States Dep't of Justice, 11 F. Supp. 2d 42, 44 (D.D.C. 1998)
(explaining that once documents become assembled for law enforcement purposes,
"all [such] documents qualify for protection under Exemption 7 regardless of their
original source"); Hayes, 1998 U.S. Dist. LEXIS 14120, at *12 ("Records that are
incorporated into investigatory files also qualify . . . even though those records may
not have been created originally for law enforcement purposes."); Perdue Farms, Inc.
v. NLRB, No. 2:96-27, 1997 U.S. Dist. LEXIS 14579, at *37 (E.D.N.C. Aug. 5, 1997)
(magistrate's recommendation) (stating that the language of the statute "contains no
requirement that the compilation be effected at a specific time" (citing John Doe
Agency, 493 U.S. at 153)), adopted (E.D.N.C. Jan. 20, 1998); Butler v. Dep't of the Air
Force, 888 F. Supp. 174, 179-80, 182 (D.D.C. 1995) (holding Air Force personnel
background report -- requested by local law enforcement agency for its investigation
into murder -- to be compiled for law enforcement purposes), aff'd per curiam, No.
96-5111 (D.C. Cir. May 6, 1997).
65. John Doe Agency, 493 U.S. at 153.
66. Compare, e.g., Pratt, 673 F.2d at 418 (declaring that "a court can accept less
exacting proof from [a law enforcement agency]"), with Kuehnert v. FBI, 620 F.2d 662,
667 (8th Cir. 1980) (holding that "Exemption 7 extends to all investigative files of a
criminal law enforcement agency").
67. See First Circuit: Curran v. Dep't of Justice, 813 F.2d 473, 475 (1st Cir. 1987)
(holding that investigatory records of law enforcement agencies are "inherently"
compiled for law enforcement purposes); Irons, 596 F.2d at 474-76 (holding that
"investigatory records of law enforcement agencies are inherently records compiled
for 'law enforcement purposes' within the meaning of Exemption 7"); Second Circuit:
Halpern v. FBI, 181 F.3d 279, 296 (2d Cir. 1999) (applying rule that when records are
compiled in course of law enforcement investigation, purpose of investigation is not
subject of review by court); Ferguson v. FBI, 957 F.2d 1059, 1070 (2d Cir. 1992) (finding
that there is "no room for [a] district court's inquiry into whether the FBI's asserted
law enforcement purpose was legitimate"); Williams v. FBI, 730 F.2d 882, 884-85 (2d
Cir. 1984) (ruling that records of a law enforcement agency are given "absolute
protection" even if "records were compiled in the course of an unwise, meritless or
even illegal investigation"); Sixth Circuit: Detroit Free Press, 73 F.3d at 96 (holding
that mug shots are created for law enforcement purpose, applying per se rule
adopted previously in Jones v. FBI, 41 F.3d 238, 246 (6th Cir. 1994) (adopting a per se
rule that the FBI is "archetypical" federal law enforcement agency and that "concern
about overbroad withholding should therefore be addressed by proper scrutiny of
the claimed exemptions themselves and not by use of a blunt instrument at the
threshold")); Eighth Circuit: Miller v. USDA, 13 F.3d 260, 263 (8th Cir. 1993) (tardiness
in working on case does not eliminate law enforcement purpose); Kuehnert, 620 F.2d
at 666 (FBI need not show law enforcement purpose of particular investigation as
precondition to invoking Exemption 7); Eleventh Circuit: Robinson v. Dep't of Justice,
No. 00-11182, slip op. at 10 (11th Cir. Mar. 15, 2001) (holding that investigative records
concerning search and seizure of drug-carrying vessel are "'inherently records
compiled for law enforcement purposes'" (quoting Curran, 813 F.2d at 475));
Arenberg v. DEA, 849 F.2d 579, 581 (11th Cir. 1988) (suggesting that courts should be
"hesitant" to reexamine law enforcement agency's decision to investigate if there is
plausible basis for agency's decision); see also Binion v. United States Dep't of
Justice, 695 F.2d 1189, 1193-94 (9th Cir. 1983) (holding that "a fortiori" approach is
appropriate when FBI pardon investigation was "clearly legitimate").
68. See, e.g., Davin v. United States Dep't of Justice, 60 F.3d 1043, 1056 (3d Cir. 1995)
(applying "adaptation" of two-pronged rational nexus test and holding FBI's "simple
recitation of statutes, orders and public laws" insufficient; agency must describe
nexus between "each document" and particular investigation), on remand, No. 92-1122, slip op. at 11-13 (W.D. Pa. Apr. 9, 1998) (finding that government demonstrated
connection between target and "potential violation of law or security risk" for each
investigation), aff'd, 176 F.3d 471, 471 (3d Cir. 1999) (unpublished table decision);
Beneville v. United States Dep't of Justice, No. 98-6137, slip op. at 17 (D. Or. June 11,
2003) (declaring that the agency "has established that it is a law enforcement
agency" and that it satisfied the threshold requirement by showing a "rational nexus
between the enforcement of a federal law and the documents for which the
exemption is claimed"); Kern v. FBI, No. 94-0208, slip op. at 9 (C.D. Cal. Sept. 14, 1998)
(rejecting FBI's Vaughn Index as inadequate because it did not demonstrate nexus
between duty to investigate espionage and documents sought); Franklin, No. 97-1225, slip op. at 7-8 (S.D. Fla. June 26, 1998) (reiterating the need for a "nexus
between the records and the enforcement of federal or state law"); Grine v. Coombs,
No. 95-342, 1997 U.S. Dist. LEXIS 19578, at **14-18 (W.D. Pa. Oct. 10, 1997) (holding
that the "proper test is the 'rational nexus' test," and determining that investigatory
reports triggered by complaints of dumping hazardous waste satisfy test);
Crompton v. DEA, No. 95-8771, slip op. at 12-13 (C.D. Cal. Mar. 25, 1997) (stating that
agencies with "clear law enforcement mandate such as the DEA need only establish
a 'rational nexus' between enforcement of a federal law and the document for which
a law enforcement exemption is claimed," and holding that there is a such nexus
between DEA's "law enforcement duties to manage the national narcotics
intelligence system" and information withheld); Marriott Employees' Fed. Credit
Union v. Nat'l Credit Union Admin., No. 96-478-A, slip op. at 5-7 (E.D. Va. Dec. 24, 1996)
(finding that documents compiled by NCUA pursuant to administration of Federal
Credit Union Act satisfy standard); Blanton v. United States Dep't of Justice, No. 93-2398, slip op. at 5-8 (W.D. Tenn. July 14, 1994) (finding that information concerning the
validity of plaintiff's counsel's purported license to practice law does not meet the
threshold because law licenses are matter of public record and that the government
failed to prove that records were "compiled for a law enforcement purpose");
Rosenfeld v. United States Dep't of Justice, 761 F. Supp. 1440, 1445-48 (N.D. Cal. 1991)
(explaining that FBI investigation of Free Speech Movement "was begun in good
faith and with a plausible basis," but ceased to have "colorable claim [of rationality]
as the evidence accumulated" and became "a case of routine monitoring . . . for
intelligence purposes"; date at which FBI's initial law enforcement-related suspicions
were "demonstrably unfounded" was "cut-off point for the scope of a law
enforcement purpose" under Exemption 7), aff'd in pertinent part, rev'd in part &
remanded, 57 F.3d 803 (9th Cir. 1995); Friedman v. FBI, 605 F. Supp. 306, 321 (N.D. Ga.
1984) (finding that the FBI was "'gathering information with the good faith belief that
the subject may violate or has violated federal law' rather than 'merely monitoring
the subject for purposes unrelated to enforcement of federal law'" (quoting Lamont
v. Department of Justice, 475 F. Supp. 761, 770 (S.D.N.Y. 1979))). But see also Prescott
v. Dep't of Justice, No. 00-0187, slip op. at 10 (D.D.C. Aug. 10, 2001) (rejecting the
assertion that all Bureau of Prisons records "per se satisfy the threshold
requirement," while suggesting that Bureau of Prisons may not be "a law
enforcement agency for purposes of FOIA deference").
69. 673 F.2d at 416 n.17.
70. Id. at 420-21; see, e.g., Campbell v. United States Dep't of Justice, 164 F.3d 20, 32
(D.C. Cir. 1998) (requiring nexus between agency activities and law enforcement
duties, and finding that most FBI files of 1960s investigations of James Baldwin --
believed to be associated with subversive organizations -- meet threshold, but
elaborating that law enforcement agency may not simply rely on file names to satisfy
threshold); Summers v. United States Dep't of Justice, 140 F.3d 1077, 1083 (D.C. Cir.
1998) (to show nexus, FBI must link names redacted from former FBI Director J.
Edgar Hoover's telephone logs to law enforcement activities); Quiñon v. FBI, 86 F.3d
1222, 1228-29 (D.C. Cir. 1996) (reiterating that agency's basis for connection between
object of investigation and asserted law enforcement duty cannot be pretextual or
wholly unbelievable and remanding because FBI's affidavits were insufficient to
show that Pratt nexus test satisfied when only specific fact cited is filing of motion;
"filing of a non-fraudulent pleading cannot, taken alone, form the basis for a
legitimate obstruction of justice investigation"); Computer Prof'ls for Soc.
Responsibility v. United States Secret Serv., 72 F.3d 897, 902, 904 (D.C. Cir. 1996)
(investigation into allegations of telecommunications fraud satisfies threshold, as do
documents pertaining to police breakup of public meeting of computer hackers
club); King v. United States Dep't of Justice, 830 F.2d 210, 229 (D.C. Cir. 1987)
(supporting Pratt two-part test by stating that agency must identify particular
individual/incident as object of its investigation and specify connection between
individual/incident and possible security risk or violation of federal law and that
agency must then demonstrate that relationship is based on information sufficient to
support colorable claim of rationality); Founding Church of Scientology v. Smith, 721
F.2d 828, 829 n.1 (D.C. Cir. 1983) (holding that "Pratt is the law of this circuit insofar as
it interprets the threshold requirement of exemption 7"); Wichlacz v. United States
Dep't of Interior, 938 F. Supp. 325, 330 (E.D. Va. 1996) (observing that "investigative
activities giving rise to the compilation of the records must be related to the
enforcement of federal law, and there must be a rational connection between the
investigative activities and the agency's law enforcement duties"), aff'd, 114 F.3d 1178
(4th Cir. 1997) (unpublished table decision); Exner, 902 F. Supp. at 242-43 (finding that
investigatory activities were based on legitimate concern that federal laws were
being violated and that activities connected rationally to target).
71. See, e.g., King, 830 F.2d at 229 n.141 (dictum) (holding that the 1986 FOIA
amendments did not "qualif[y] the authority of Pratt" test).
72. 830 F.2d 337, 340 (D.C. Cir. 1987); see also Rochon v. Dep't of Justice, No. 88-5075,
slip op. at 3 (D.C. Cir. Sept. 14, 1988) (holding that agency must demonstrate nexus
between its compilation of records and its law enforcement duties); Hall v. United
States Dep't of Justice, 63 F. Supp. 2d 14, 16 (D.D.C. 1999) (holding that Davin "is not
persuasive authority" because "Third Circuit standard is more permissive" than
established D.C. Circuit standard (referring to Campbell, 164 F.3d at 32)),
reconsideration denied, No. 96-2306, slip op. at 2 (D.D.C. May 29, 2003); Code, No. 95-1892, 1997 WL 150070, at **4-5 (reiterating requirement for nexus between activities
and law enforcement duties); Wickline v. FBI, No. 92-1189, 1994 WL 549756, at *2
(D.D.C. Sept. 30, 1994) (finding that requirement for "nexus between the agency's
activity and its law enforcement duties" was met when FBI compiled requested
information through its investigation of series of murders involving organized crime);
Abdullah v. FBI, No. 92-0356, slip op. at 3 (D.D.C. Aug. 10, 1992) (holding that "law
enforcement agencies such as the FBI must show that the records at issue are
related to the enforcement of federal laws and that the law enforcement activity
was within the law enforcement duty of that agency"); Beck v. United States Dep't of
Justice, No. 87-3356, slip op. at 26-27 (D.D.C. Nov. 7, 1989) ("[D]efendants must merely
establish that the nexus between the agency's activity and its law enforcement duty"
is based on a "colorable claim of rationality."). But see Simon v. Dep't of Justice, 980
F.2d 782, 783 (D.C. Cir. 1992) (stating that agency must demonstrate nexus between
investigation and one of its law enforcement duties (citing Pratt, 673 F.2d at 420-21));
Reiter v. DEA, No. 96-0378, 1997 WL 470108, at *3 (D.D.C. Aug. 13, 1997) (describing
how the nexus "requires an agency to establish a connection between the individual
under investigation and a possible violation of a federal law"), summary affirmance
granted, No. 97-5246 (D.C. Cir. Mar. 3, 1998); Keenan v. Dep't of Justice, No. 94-1909,
slip op. at 12-15 (D.D.C. Mar. 2, 1997) (ruling that the agency had not established the
required nexus, because it was "unclear as to whether an investigation was
conducted at all"); Assassination Archives & Research Ctr. v. United States Dep't of
Justice, No. 92-2193, 1993 WL 763547, at **6-7 (D.D.C. Apr. 29, 1993) (declaring that
government must establish that investigation related to enforcement of federal law
raises colorable claim rationally related to one or more of agency's law enforcement
73. 830 F.2d at 341-42.
74. 673 F.2d at 421 (A court should be "hesitant to second-guess a law enforcement
agency's decision to investigate if there is a plausible basis" for its decision.).
75. See, e.g., Rosenfeld, 57 F.3d at 808 (ruling that Pratt's rational nexus test
requires "a degree of deference to a law enforcement agency's decision to
investigate"); King, 830 F.2d at 230-32 (finding that subject's close association with
"individuals and organizations . . . of investigative interest to the FBI" and its
consequent investigation of the subject during the McCarthy era for possible
violation of national security laws meets the threshold in the absence of evidence
supporting the existence of an improper purpose); Campbell v. Dep't of Justice, 193
F. Supp. 2d 29, 39-40 (D.D.C. 2001) (clarifying that law enforcement purpose must be
evaluated as of the time that the records are compiled, even if history now questions
the legal basis for investigation today); Simon v. United States Dep't of Justice, 752 F.
Supp. 14, 18 (D.D.C. 1990) (Given the subject's prior pacifist activities, it was not
"irrational or implausible for [the FBI] -- operating in the climate existing during the
early 1950s -- [to conduct] what appears to have been a brief criminal investigation
into the possibility that the plaintiff harbored Communist affiliations."), aff'd on other
grounds, 980 F.2d 782 (D.C. Cir. 1992); see also Ctr. for Nat'l Sec. Studies, 331 F.3d at
927-28 (declaring that "[j]ust as we have deferred to the executive when it invokes
FOIA Exemptions 1 and 3 in national security cases, we owe the same deference
under Exemption 7(A) in appropriate cases"). But see Jefferson, 284 F.3d at 178
(limiting deference when an agency relies on a "bare assertion to justify invocation of
an exemption"); Summers, 140 F.3d at 1082, 1084 (suggesting that deference to
agency may be overcome when records, such as J. Edgar Hoover's "official and
confidential" (O&C) files, were "not readily available to field agents" and "contain[ed]
scandalous material on public figures to be used for political blackmail"), on remand,
No. 87-3168, slip op. at 3 & n.4 (D.D.C. Apr. 19, 2000) (finding, after in camera review of
four thousand pages of the O&C files, that the FBI "ha[d] adequately established"
that Exemption 7's "threshold requirement" was met).
76. See Pratt, 673 F.2d at 420-21 (reiterating that Exemption 7 is not intended to
"include investigatory activities wholly unrelated to law enforcement agencies'
legislated functions of preventing risks to the national security and violations of the
criminal laws and of apprehending those who do violate the laws"); see also Quiñon,
86 F.3d at 1228-29 (explaining that agency's connection between object of
investigation and asserted law enforcement duty cannot be pretextual or wholly
unbelievable and holding FBI affidavits insufficient to demonstrate legitimate basis
for obstruction of justice charge; "cryptic allusion to 'certain events' is especially
problematic" when events "may be nothing more sinister than . . . criticisms"); Shaw,
749 F.2d at 63 (stating that the "mere existence of a plausible criminal investigatory
reason to investigate would not protect the files of an inquiry explicitly conducted . . .
for purposes of harassment"); Lesar, 636 F.2d at 487 (questioning whether records
that were generated after investigation "wrongly strayed beyond its original law
enforcement scope" would meet threshold test for Exemption 7); Enviro Tech, No. 02
C 4650, slip op. at 13-14 (N.D. Ill. Mar. 11, 2003) (discussing the consequences of "ultra
vires decisions," and explaining that Exemption 7 has a "hook that might restrict the
exemption to only those documents relating to specifically authorized agency
activities") (dicta); Warren v. United States, No. 1:99-1317, 2000 WL 1868950, at *6
(N.D. Ohio Oct. 31, 2000) (determining that despite fact that IRS investigator may
have aggressively gathered information during civil audit, this had clear law
enforcement purpose and was not beyond authority of agency). But see Sinito v.
United States Dep't of Justice, No. 87-0814, slip op. at 17 (D.D.C. July 11, 2000)
(declaring that plaintiff's "[u]nanswered questions and inflammatory accusations
regarding alleged governmental agent corruption . . . do not persuade this Court"
that records were not compiled for law enforcement purposes).
77. See PHE, 983 F.2d at 249, 251, 253 (holding portions of FBI's Manual of
Investigative Operations & Guidelines properly withheld pursuant to Exemption
78. See Attorney General's 1986 Amendments Memorandum at 8-9; see also
Guerrero v. DEA, No. 93-2006, slip op. at 14-15 (D. Ariz. Feb. 22, 1996) (approving
nondisclosure of portions of DEA Agents Manual); Church of Scientology Int'l v. IRS,
845 F. Supp. 714, 723 (C.D. Cal. 1993) (concluding that parts of IRS Law Enforcement
Manual were exempt from disclosure pursuant to Exemption 7(E)).
79. Accord Attorney General's Memorandum for Heads of All Federal Departments
and Agencies Regarding the Freedom of Information Act (Oct. 12, 2001), reprinted in
FOIA Post (posted 10/15/01) (instructing agencies to protect national security and
their law enforcement missions by undertaking "full and deliberate consideration of
the institutional, commercial, and personal privacy interests that could be implicated
80. See, e.g., Ayyad, WL 654133, at *3 (holding that records concerning the 1993
terrorist bombing of the World Trade Center satisfy the threshold when "the
Government may need [information from the requester's file] to use to detect threats
to the integrity of the nation's security"); Judicial Watch, Inc. v. FBI, No. 00-745, slip
op. at 6-7 (D.D.C. Apr. 20, 2001) (finding that FBI has shown nexus between
investigation related to domestic security/terrorism and its assigned law
enforcement mission); Judicial Watch, No. 00-0723, slip op. at 21 (D.D.C. Mar. 30, 2001)
(finding that records concerning "the investigation of terrorist threats" involved "a
legitimate law enforcement duty" and satisfied the threshold). But see also
Weissman, 565 F.2d at 695-96 (finding that the CIA's authority was limited by
Congress to intelligence matters abroad, and holding that the agency was not
authorized to conduct "investigations of private American nationals who had no
contact with the CIA, [merely] on the grounds that eventually their activities might
threaten the Agency").
81. Pratt, 673 F.2d at 420 (applying two-part test, and allowing that the threshold
may be satisfied if the agency's investigatory activities "relate to the enforcement
of federal laws or to the maintenance of national security").
82. See, e.g., Morales Cozier, No. 99-0312, slip op. at 14-15 (N.D. Ga. Sept. 25, 2000)
(stating that the threshold was satisfied under either the "per se" test or the Pratt
test because "[p]laintiff's activities in contacting an official of a government with
which the United States has no official relations and inviting him to the United States
could have presented an interference with United States foreign policy or national
security in an area where the FBI has an investigatory or enforcement interest"); cf.
White House Memorandum for Heads of Executive Departments and Agencies
Concerning Safeguarding Information Related to Homeland Security (Mar. 19, 2002),
reprinted in FOIA Post (posted 3/21/02) (emphasizing need to protect information
"that could reasonably be expected to assist" specific terrorist activity).
83. See Ctr. for Nat'l Sec. Studies, 331 F.3d at 928-29 (explaining that "disclosure of
[post-9/11] detainees' names would enable al Qaeda or other terrorist groups to map
the course of the investigation [and] could be of great use to al Qaeda in plotting
future terrorists attacks or intimidating witnesses"); Living Rivers, 272 F. Supp. 2d at
1321 (stating that terrorists could use "inundation maps" to aid both in target
selection and in carrying out terrorist attacks by analyzing downstream harm from
projected extent of flooding); Coastal Delivery, 272 F. Supp. 2d at 964 (finding that
terrorists could use information about rate of examinations at ports to avoid
detection by selecting those ports with relatively low rates of examinations); see
also Campbell, 164 F.3d at 31-33 (discussing whether 1960s investigations of
subversive organizations believed to be threat to U.S. security meet threshold);
Pratt, 673 F.2d at 421 (explaining that investigation into breach of national security
qualifies as law enforcement); Simon, 752 F. Supp. at 18 (explaining that given the
"climate existing during the early 1950's [the court] cannot conclude that it was
irrational or implausible" to take into account "earlier passivist activities" and
conduct a "criminal investigation into the possibility that [the subject] harbored
Communist affiliations," and therefore finding that the records met the law
enforcement threshold); FOIA Post, "FOIA Officers Conference Held on Homeland
Security" (posted 7/3/03) (discussing use of FOIA's law enforcement exemptions
where necessary to protect homeland security-related information); cf. Maydak v.
United States, No. 02-5168, slip op. at 7 (D.C. Cir. Apr. 20, 2004) (reiterating that
"[a]lthough the Privacy Act does not define 'law enforcement authority,' we have
interpreted the phrase broadly," and given the Bureau of Prison's mandate to
preserve prison security, "we have no doubt that examining photographs for conduct
that may threaten that security is pertinent to and within the scope of an authorized
law enforcement activity").
84. See Attorney General Ashcroft's FOIA Memorandum, reprinted in FOIA Post
(posted 10/15/01) (describing a FOIA policy goal of "safeguarding our national
security [and] enhancing the effectiveness of our law enforcement agencies").
85. See Pratt, 673 F.2d at 420. But see also Ctr. for Nat'l Sec. Studies, 331 F.3d at 921,
926 (seemingly going beyond Pratt for homeland security/terrorism purposes by
finding that although names of detainees traditionally are made public, names which
were gathered in "response to the terrorist attacks of September 11, 2001 . . .
constitute a comprehensive diagram of the law enforcement investigation," and thus
were compiled for law enforcement purposes and were properly withheld).
86. Attorney General Ashcroft's FOIA Memorandum, reprinted in FOIA Post (posted
87. North Jersey Media Group, 308 F.3d at 202-03 (discussing First Amendment
rights, and recognizing that the "case arises in the wake of September 11, 2001, a
day on which American life changed drastically and dramatically . . . . Since the
primary national policy must be self-preservation, it seems elementary that, to the
extent open deportation hearings might impair national security," the special
interest deportation hearings were properly closed); see Ctr. for Nat'l Sec. Studies,
331 F.3d at 926, 932 (referring to 9/11 terrorism as a "heinous violation," and stating
that "the courts must defer to the executive on [such] decisions of national security");
Coastal Delivery, 272 F. Supp. 2d at 960-61, 964 (pointing to the existence of "new
anti-terrorism programs" in approving protection of the type of information released
prior to 9/11, and stating that "plaintiff's arguments that potential terrorists and
smugglers could not and would not use the information" are simply "unpersuasive" in
that context); see also, e.g., Edmonds, 272 F. Supp. at 55 (stating that the "deference
that has historically been extended to the executive when it invokes FOIA
Exemption 1" must be extended to Exemption 7 in the national security area); cf.
Zadvydas, 533 U.S. at 696 (recognizing that terrorism can warrant "heightened
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