Freedom of Information Act Guide, May 2004
The first subpart of Exemption 7, Exemption 7(A), authorizes the withholding
of "records or information compiled for law enforcement purposes, but only to the
extent that production of such law enforcement records or information . . . could
reasonably be expected to interfere with enforcement proceedings." (1) The Freedom
of Information Reform Act of 1986, often referred to as the 1986 FOIA amendments,
lessened the showing of harm required from a demonstration that release "would
interfere with" to "could reasonably be expected to interfere with" enforcement
proceedings. (2) The courts have recognized repeatedly that the change in the
language for this exemption effectively broadens its protection. (3)
Determining the applicability of this Exemption 7 subsection thus requires a
two-step analysis focusing on (1) whether a law enforcement proceeding is pending
or prospective, and (2) whether release of information about it could reasonably be
expected to cause some articulable harm. (4) The courts have held that the mere
pendency of enforcement proceedings is an inadequate basis for the invocation of
Exemption 7(A); the government must also establish that some distinct harm could
reasonably be expected to result if the record or information requested were
disclosed. (5) For example, the Court of Appeals for the District of Columbia Circuit
has held that the fact that a judge in a criminal trial specifically delayed disclosure of
certain documents until the end of the trial is alone insufficient to establish
interference with that ongoing proceeding. (6)
It is beyond question that Exemption 7(A) is temporal in nature and is not
intended to "endlessly protect material simply because it [is] in an investigatory
file." (7) Thus, as a general rule, Exemption 7(A) may be invoked so long as the law
enforcement proceeding involved remains pending, (8) or so long as an enforcement
proceeding is fairly regarded as prospective (9) or as preventative. (10)
Although Exemption 7(A) is temporal in nature, it nevertheless remains viable
throughout the duration of long-term investigations. (11) For example, in 1993 it was
held applicable to the FBI's continuing investigation into the 1975 disappearance of
Jimmy Hoffa. (12) Even when an investigation is dormant, Exemption 7(A) has been
held to be applicable because of the possibility that the investigation could lead to a
"prospective law enforcement proceeding." (13) The "prospective" proceeding,
however, must be a concrete possibility, rather than a mere hypothetical one. (14)
Further, even after an enforcement proceeding is closed, courts have ruled
that the continued use of Exemption 7(A) may be proper in certain in-stances. One
such instance involves "related" proceedings, i.e., those instances in which
information from a closed law enforcement proceeding will be used again in other
pending or prospective law enforcement proceedings -- for example, when charges
are pending against additional defendants (15) or when additional charges are pending
against the original defendant. (16)
Another circumstance in which the continued use of Exemption 7(A) has been
held proper involves post-conviction motions, i.e., those instances in which the
requester has filed a motion for a new trial or has otherwise appealed the court's
action. (17) The extent of protection in such a circumstance, however, varies; some
courts have limited Exemption 7(A) protection to only the material not used at the
first trial, (18) while other courts in some cases have extended Exemption 7(A)
protection to all of the information compiled during all of the law enforcement
Similarly, Exemption 7(A) also may be invoked when an investigation has been
terminated but an agency retains oversight or some other continuing enforcement-related responsibility. (20) For example, it has been found to have been invoked
properly to protect impounded ballots where their disclosure could "interfere with
the authority of the NLRB" to conduct and process future collective bargaining
representation elections. (21) If, however, there is no such ongoing agency oversight or
continuing enforcement-related responsibility, courts do not permit an agency to
continue the use of Exemption 7(A) to protect information. (22)
The types of "law enforcement proceedings" to which Exemption 7(A) may be
applicable have been interpreted broadly by the courts. (23) Such proceedings have
been held to include not only criminal actions, (24) but civil actions (25) and regulatory
proceedings (26) as well. They include "cases in which the agency has the initiative in
bringing an enforcement action and those . . . in which it must be prepared to
respond to a third party's challenge." (27) Enforcement proceedings in state courts (28)
and foreign courts (29) also qualify for Exemption 7(A) protection.
It is well established that in order to satisfy the "law enforcement
proceedings" requirement of Exemption 7(A), an agency must be able to point to a
specific pending or contemplated law enforcement proceeding that could be
harmed by disclosure. (30) By comparison, while some courts have extended the
attorney work-product privilege of Exemption 5 to instances of "foreseeable
litigation, even if no specific claim is contemplated," (31) courts have not likewise
extended the protection of Exemption 7(A). (32) As one court has observed, "[i]f an
agency could withhold information whenever it could imagine circumstances where
the information might have some bearing on some hypothetical enforcement
proceeding, the FOIA would be meaningless." (33) Rather, it is the existence of a
pending or prospective law enforcement proceeding against other investigative
targets that permits the continued use of Exemption 7(A) when law enforcement
proceedings against the first target are "closed." (34) Thus, information cannot properly
be protected just because a law enforcement agency asserts, without a firm basis,
that release would interfere with future actions. (35)
With respect to judicial deference to agency judgments under Exemption
7(A), the courts can be quite pragmatic. Indeed, in a significant decision involving
post-September 11 detainees, the D.C. Circuit in Center for National Security Studies
v. United States Department of Justice, recently declared that "the courts must defer
to the executive on decisions of national security" under Exemption 7(A) as well as
elsewhere. (36) Explaining that "America faces an enemy just as real as its former Cold
War foes," (37) the D.C. Circuit stressed the concept of deference repeatedly in this
case, citing both to its own prior decisions and to Supreme Court precedent. (38)
Further, it said that it would "reject any attempt to artificially limit the long-recognized deference to the executive on national security issues," which means that
this deference now clearly has been extended to the law enforcement realm. (39) Thus,
there is a strong connection between law enforcement, national security, and
homeland security when it comes to combating the threat of domestic terrorism, (40)
particularly insofar as courts "have wisely respected the executive's judgment in
prosecuting the national response to terrorism." (41)
Further, regarding an agency's specific evaluation of harm, the D.C. Circuit in
Center for National Security Studies also recognized that "Exemption 7(A) explicitly
requires a predictive judgment of the harm that will result from disclosure of
information." (42) While its discussion of the concept of Exemption 7(A)'s "predictive
judgment" in this particular case involved an agency's judgment in the national
security arena, the D.C. Circuit nevertheless carefully reviewed the government's
submissions and found that they readily met Exemption 7(A)'s standards. (43) Thus,
agencies should keep in mind the D.C. Circuit's deferential "predictive judgment"
approach when determining the applicability of Exemption 7(A) among other FOIA
exemptions, when describing the agency expertise brought to bear on such
determinations, and when articulating the harm envisioned by the release of
withheld information, whether or not the case involves particularly sensitive national
security issues. (44)
More generally, with respect to the showing of harm to law enforcement
proceedings required to invoke Exemption 7(A), the Supreme Court in NLRB v.
Robbins Tire & Rubber Co. rejected the position that "interference" must always be
established on a document-by-document basis, and held that a determination of the
exemption's applicability may be made "generically," based on the categorical types
of records involved. (45) Indeed, the Supreme Court in United States Department of
Justice v. Reporters Committee for Freedom of the Press emphatically affirmed the
vitality of its Robbins Tire approach and further extended it to include situations
arising under other FOIA exemptions in which records can be entitled to protection
on a "categorical" basis. (46) Thus, almost all courts have accepted affidavits in
Exemption 7(A) cases that specify the distinct, generic categories of documents at
issue and the harm that would result from their release, rather than requiring
extensive, detailed itemizations of each document. (47)
Specific guidance has been provided by the Courts of Appeals for the First,
Fourth, and D.C. Circuits as to what constitutes an adequate "generic category" in an
Exemption 7(A) affidavit. (48) The general principle uniting their decisions is that
affidavits must provide at least a general, "functional" description of the types of
documents at issue sufficient to indicate the type of interference threatening the law
enforcement proceeding. (49) It should be noted, however, that both the First and the
Fourth Circuits have approved a "miscellaneous" category of "other sundry items of
information." (50) Although the D.C. Circuit has not yet specifically addressed an
affidavit containing such a category, a subsequent decision of the District Court for
the District of Columbia held that documents categorized as "Other Agency
Records," and described in agency affidavits as "material evidence that was the
basis for the conviction," were described "sufficient[ly] to allow the court to
determine that the files were properly withheld." (51)
The functional test set forth by the D.C. Circuit does not require a detailed
showing that release of the records is likely to interfere with the law enforcement
proceedings; it is sufficient for the agency to make a generalized showing that
release of these particular kinds of documents would generally interfere with
enforcement proceedings. (52) Indeed, publicly revealing too many details about an
ongoing investigation could jeopardize the government's ability to protect such
information. (53) Also, it should be remembered that making this showing is easier
than in the past due to the current language of the statute. (54)
However, it is important to note that the D.C. Circuit in Bevis v. Department of
State, held that even though an agency "need not justify its withholding on a
document-by-document basis in court, [it] must itself review each document to
determine the category in which it properly belongs." (55) Indeed, when an agency
elects to use the "generic" approach, the court stated, the agency "has a three-fold
task. First, it must define its categories functionally. Second, it must conduct a
document-by-document review in order to assign the documents to the proper
category. Finally, it must explain to the court how the release of each category
would interfere with enforcement proceedings." (56) (For a further discussion, see
Litigation Considerations, "Vaughn Index," below.)
The courts have long accepted that Congress intended that Exemption 7(A)
apply "whenever the government's case in court would be harmed by the premature
release of evidence or information," (57) or when disclosure would impede any
necessary investigation prior to the enforcement proceeding. (58) In Robbins Tire, the
Supreme Court found that the NLRB had established interference with its unfair
labor practice enforcement proceeding by showing that release of its witness
statements would create a great potential for witness intimidation and could deter
their cooperation. (59) Other courts have ruled that interference has been established
when, for example, the disclosure of information could prevent the government from
obtaining data in the future. (60) Indeed, the D.C. Circuit in Alyeska Pipeline Service v.
EPA, ruled that disclosure of documents pertaining to a corporation under
investigation that might identify which of that corporation's employees had provided
those documents to a private party (who in turn had provided them to EPA) would
"thereby subject them to potential reprisals and deter them from providing further
information to [the] EPA." (61)
The exemption has been held to be properly invoked when release would
hinder an agency's ability to control or shape investigations, (62) would enable targets
of investigations to elude detection (63) or to suppress or fabricate evidence, (64) or would
prematurely reveal evidence or strategy in the government's case. (65) Additionally,
information that would reveal investigative trends, emphasis, and targeting
schemes has been determined to be eligible for protection under Exemption 7(A) in
those instances when disclosure would provide targets with the ability to perform a
"cost/benefit analysis" of compliance with agency regulations. (66) Still other courts
have indicated that any premature disclosure, by and of itself, can constitute
interference with an enforcement proceeding. (67) In contrast, the D.C. Circuit has held
that the mere fact that defendants in related ongoing criminal proceedings might
obtain documents through the FOIA that were ruled unavailable "through discovery,
or at least before [they] could obtain them through discovery," does not itself
"constitute interference with a law enforcement proceeding." (68)
Furthermore, Exemption 7(A) ordinarily will not afford protection when the
target of the investigation has possession of or submitted the information in
question. (69) Nevertheless, it is increasingly clear that agencies can properly withhold
information if they can demonstrate that its "selectivity of recording" information
provided by the target would suggest the nature and scope of the investigation, (70) or
if it can articulate with specificity how each category of documents, if disclosed,
would cause interference. (71) Indeed, in a case in which two clients requested
statements that their attorney made to the SEC and argued that the "information
their attorney conveyed to the [agency] must be treated as coming from them," it
was held that the "harm in releasing this information flows mainly from the fact that
it reflects the [agency] staff's selective recording . . . and thereby reveals the scope
and focus of the investigation." (72)
Because Exemption 7(A) is temporal in nature, it generally has been
recognized that once Exemption 7(A) applicability ceases with a change in
underlying circumstances an agency then may invoke other applicable exemptions;
therefore, agencies ordinarily do not determine what other, underlying exemptions
are appropriate until the underlying investigation reaches a point at which the
documents no longer merit Exemption 7(A) protection. (73)
In fact, the Supreme Court, the D.C. Circuit, and other circuit courts of appeals
have approved the generic approach and the functional test for Exemption 7(A), (74)
and in multiple rulings have approved the continued use of Exemption 7(A) where
necessary even after initial enforcement proceedings are closed. (75) Notwithstanding
this widely accepted practice, however, the D.C. Circuit four years ago ruled that the
government must prove its case with respect to any other, underlying FOIA
exemptions in the original court proceedings "in an Exemption 7(A) case in such a
manner that the district court can rule on the issue," (76) and it denied the defendant
agency's motion to remand a case back to the district court once Exemption 7(A)
became inapplicable. (77)
In so doing, the D.C. Circuit disregarded the import of its own prior rulings, (78)
ignored prior rulings of the D.C. District Court and other circuit courts, (79) and
unexpectedly refused to recognize the full import of the temporal nature of the
exemption. (80) The D.C. Circuit in Maydak v. United States Department of Justice
further ruled that the nature of the burden of proof under Exemption 7(A) does not
relieve an agency from having to prove its case with respect to other, underlying
exemptions in the original district court proceedings. (81) Indeed, the Court rebuffed
the agency's reliance on longstanding Exemption 7(A) practice and supporting case
law by declaring that "nothing" in existing case law "should be construed as
supporting the proposition that, when the government withdraws its reliance on
Exemption 7(A) after the district court has reached a final decision and an appeal
has been filed, the appropriate course of action is necessarily remand to the agency
for reprocessing of the FOIA request in question." (82) In fact, in Maydak, the court
went so far as to declare that "merely stating that 'for example' an exemption might
apply is inadequate to raise a FOIA exemption," even when underlying a uniquely
temporal one such as Exemption 7(A). (83)
Prior to the Maydak decision, when agencies found themselves in litigation in
which "changed circumstances" (i.e., the end of underlying law enforcement
proceedings) had placed into question the continuing viability of Exemption 7(A),
they either voluntarily "reprocessed" the requested records using all other
appropriate exemptions or were ordered to do so by the court. (84) Now, however,
whenever invoking Exemption 7(A) in litigation, agencies may choose to seek and
receive permission from the district court to invoke Exemption 7(A) alone (thereby
reserving all other potentially invokable exemptions) (85) or undertake the time-consuming process of invoking Exemption 7(A) together with all other, underlying,
exemptions in their ini-tial Vaughn declarations. (86)
Notwithstanding the above Maydak "solutions" of receiving permission to
raise other applicable exemptions later or "Vaughning" and briefing fully all possible
exemptions at the onset of litigation, (87) it is highly significant that two post-Maydak
cases have permitted agencies to raise exemptions not invoked initially. (88) In both of
these cases, the courts relied on Senate of Puerto Rico v. United States Department
of Justice (89) and interpreted Maydak liberally to permit "later" exemption claims. (90) In
fact, in the most recent of these two cases, Summers v. United States Department of
Justice, the court recast Maydak completely by saying that "Maydak, however,
provides that the government is required to raise all claimed exemptions at the
district court proceedings, but does not hold that all exemptions must be raised at
the same time" (91) -- whereas Maydak in fact had stated that "[w]e have plainly and
repeatedly told the government that, as a general rule, it must assert all exemptions
at the same time." (92)
And in the other case, August v. FBI, the D.C. Circuit itself declared that "we
have repeatedly acknowledged that there are some 'extraordinary' circumstances in
which courts of appeals may exercise their authority . . . to require 'such further
proceedings to be had as may be just under the circumstances,' in order to allow the
government to raise FOIA exemption claims it failed to raise the first time around." (93)
Indeed, it carefully explained that "[g]iven the drafters' recognition that the harms of
disclosure may in some cases outweigh its benefits, we have avoided adopting a
'rigid press it at the threshold, or lose it for all times' approach to . . . agenc[ies'] FOIA
exemption claims." (94)
What's more, the D.C. Circuit likewise did not apply Maydak rigidly in two
other very recent cases in which the agencies did not invoke all applicable
exemptions at the district court level. (95) In LaCedra v. Executive Office for United
States Attorneys, the agency, due to its misreading of a FOIA request, conducted a
limited search and processed only a portion of the requested records. (96) But stating
that "[n]othing in Maydak requires an agency to invoke any exemption applicable to
a record that the agency in good faith believes has not been requested," the D.C.
Circuit specifically permitted the agency to invoke all applicable exemptions on
And in the second such additional recent case (the fourth in succession to
undermine Maydak), United We Stand America v. IRS, the request concerned a
document that the IRS prepared at the direction of a congressional committee and
which the agency maintained was not an "agency record" subject to the FOIA. (98) The
agency simply stated to the district court that "'[s]hould the Court determine that the
documents in question constitute agency records for purposes of the FOIA . . . the
defendant reserves the right, pursuant to the statute, to assert any applicable
exemption claim(s), prior to disclosure, and to litigate further any such exemption
claims.'" (99) Yet after the D.C. Circuit concluded that "only those portions of the IRS
response that would reveal the congressional request are not subject to FOIA," it
specifically remanded "with instructions" for the agency "to release [only] any
segregable portions that are not otherwise protected by one of FOIA's nine
exemptions" -- i.e., without any regard at all for the course to the contrary (not to
mention contrary to Senate of Puerto Rico) that it had appeared to have embarked
on in Maydak three years earlier. (100)
Finally, and ironically, in a significant post-Maydak case in which the agency
invoked FOIA Exemptions 3, 7(C), and 7(F) -- as well as Exemption 7(A) -- to withhold
the names of post-September 11, 2001, detainees, the D.C. Circuit itself eschewed a
multi-exemption approach underneath Exemption 7(A); rather, it stated that
"[f]inding the names protected under 7(A), we need not address the other
exemptions invoked by the government and reserve judgment on whether they too
would support withholding the names." (101)
Nevertheless, as a matter of prudence, agencies still are best advised to take
pains to be mindful of Maydak in FOIA lawsuits that involve underlying FOIA
exemptions, particularly those under Exemption 7(A), lest they unknowingly risk the
waiver result of the Maydak case. (102) In addition, while keeping in mind that the
underpinnings of the D.C. Circuit's reasoning pertain to litigation strategy, not to
administrative processing, agencies should continue to be aware of the
ramifications of "changed circumstances" for records that involve overlapping FOIA
defenses -- including threshold jurisdictional defenses that can fail for the first time
on appeal --especially once they become subjects of FOIA lawsuits. (103)
Further, in the rare Exemption 7(A) case in which an agency finds itself in an
appellate court with such "changed circumstances" and without having invoked
underlying exemptions (or having received the district court's permission not to do
so), it conceivably then might be compelled to assert that the appropriate point in
time with respect to which a court should judge the applicability of Exemption 7(A)
is the time at which the agency last made its determination of Exemption 7(A)'s
(For further discussions of these points, see Litigation Considerations, Waiver
of Exemptions in Litigation, below.)
As a final Exemption 7(A)-related matter, agencies should be aware of the
"(c)(1) exclusion," (105) which was enacted by the FOIA Reform Act in 1986. (106) This
special record exclusion applies to situations in which the very fact of a criminal
investigation's existence is as yet unknown to the investigation's subject, and
disclosure of the existence of the investigation (which would be revealed by any
acknowledgment of the existence of responsive records) could reasonably be
expected to interfere with enforcement proceedings. (107) In such circumstances, an
agency may treat the records as not subject to the requirements of the FOIA. (See
the discussion of the operation of subsection (c)(1) under Exclusions, below.)
1. 5 U.S.C. Â§ 552(b)(7)(A) (2000).
2. Pub. L. No. 99-570, Â§ 1802, 100 Stat. 3207, 3207-48; see Attorney General's
Memorandum on the 1986 Amendments to the Freedom of Information Act 10 (Dec.
1987) [hereinafter Attorney General's 1986 Amendments Memorandum]; see also
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).
3. See Robinson v. Dep't of Justice, No. 00-11182, slip op. at 8 n.5 (11th Cir. Mar. 15,
2001) (noting that 1986 FOIA amendments changed the standard from "would"
interfere to "could reasonably be expected to" interfere); Manna v. United States
Dep't of Justice, 51 F.3d 1158, 1164 n.5 (3d Cir. 1995) (stating that Congress amended
the statute to "relax significantly the standard for demonstrating interference");
Alyeska Pipeline Serv. v. EPA, 856 F.2d 309, 311 n.18 (D.C. Cir. 1988) (treating the
lower court's improper reliance on the pre-amendment version of Exemption 7(A) as
irrelevant as it simply "required EPA to meet a higher standard than FOIA now
demands"); Wright v. OSHA, 822 F.2d 642, 647 (7th Cir. 1987) (explaining that
amended language creates broad protection); Curran v. Dep't of Justice, 813 F.2d
473, 474 n.1 (1st Cir. 1987) ("[T]he drift of the changes is to ease -- rather than to
increase -- the government's burden in respect to Exemption 7(A)."); In Def. of
Animals v. HHS, No. 99-3024, slip op. at 6 (D.D.C. Sept. 28, 2001) (reiterating that
"'could reasonably' . . . represents a relaxed standard; before 1986, the government
had to show that disclosure 'would' interfere with law enforcement"); Gould Inc. v.
GSA, 688 F. Supp. 689, 703 n.33 (D.D.C. 1988) (The "1986 amendments relaxed the
standard of demonstrating interference with enforcement proceedings."); see also
Spannaus v. United States Dep't of Justice, 813 F.2d 1285, 1288 (4th Cir. 1987)
(explaining that an "agency's showing under the amended statute, which in part
replaces 'would' with 'could reasonably be expected to,' is to be measured by a
standard of reasonableness, which takes into account the 'lack of certainty in
attempting to predict harm'" (quoting S. Rep. No. 98-221, at 24 (1983)); cf. John Doe
Agency v. John Doe Corp., 493 U.S. 146, 157 (1989) (taking "practical approach" when
confronted with interpretation of FOIA and applying "workable balance" between
interests of public in greater access and needs of government to protect certain
kinds of information); United States Dep't of Justice v. Reporters Comm. for Freedom
of the Press, 489 U.S. 749, 777-78 n.22 (1989) (declaring that Congress intended the
identical modification of the language of Exemption 7(C) to provide greater
"flexibility in responding to FOIA requests for law enforcement records" and that it
replaced "a focus on the effect of a particular disclosure" with a "standard of
reasonableness" that supports a "categorical" approach to records of similar
4. See, e.g., NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978) (holding
that the government must show how the records "would interfere with a pending
enforcement proceeding"); Manna, 51 F.3d at 1164 ("To fit within Exemption 7(A), the
government must show that (1) a law enforcement proceeding is pending or
prospective and (2) release of the information could reasonably be expected to
cause some articulable harm."); Campbell v. HHS, 682 F.2d 256, 259 (D.C. Cir. 1982)
(stating that agency must demonstrate interference with pending enforcement
proceeding); Beneville v. United States Dep't of Justice, No. 98-6137, slip op. at 22 (D.
Or. June 11, 2003) (explaining that simply satisfying the law enforcement purpose
"does not establish the remainder of the requirement . . . that disclosure of the
documents could reasonably be expected to interfere with law enforcement
proceedings" (citing Lewis v. IRS, 823 F.2d 375, 379 (9th Cir. 1987))); Judicial Watch v.
FBI, No. 00-745, slip op. at 8 (D.D.C. Apr. 20, 2001) ("Once the agency establishes that
an enforcement proceeding is pending, the agency must show that release of the
withheld documents is likely to cause some distinct harm."); Scheer v. United States
Dep't of Justice, 35 F. Supp. 2d 9, 13 (D.D.C. 1999) (stating that agency "must first
prove" existence of law enforcement proceeding and "must next prove" harm),
appeal dismissed per stipulation, No. 99-5317 (D.C. Cir. Nov. 2, 2000); Franklin v.
United States Dep't of Justice, No. 97-1225, slip op. at 7 (S.D. Fla. June 15, 1998)
(magistrate's recommendation) (two-part test), adopted (S.D. Fla. June 26, 1998),
aff'd, 189 F.3d 485 (11th Cir. 1999) (unpublished table decision); Hamilton v. Weise, No.
95-1161, 1997 U.S. Dist. LEXIS 18900, at *25 (M.D. Fla. Oct. 1, 1997) (same); Butler v.
Dep't of the Air Force, 888 F. Supp. 174, 183 (D.D.C. 1995) (same), aff'd per curiam, No.
96-5111 (D.C. Cir. May 6, 1997); see also 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) (emphasizing the importance
of "enhancing the effectiveness of our law enforcement agencies").
5. See, e.g., Lion Raisins Inc. v. USDA, 354 F.3d 1072, 1085 (9th Cir. 2004) (stating that
the "USDA cannot argue that revealing the information would allow Lion premature
access to the evidence" or harm its investigation, because "Lion already has copies
of the documents it seeks"); Neill v. Dep't of Justice, No. 93-5292, 1994 WL 88219, at *1
(D.C. Cir. Mar. 9, 1994) (explaining that conclusory affidavit lacked specificity of
description necessary to ensure meaningful review of agency's Exemption 7(A)
claims); Miller v. USDA, 13 F.3d 260, 263 (8th Cir. 1993) (holding that government must
make specific showing of why disclosure of documents could reasonably be
expected to interfere with enforcement proceedings); Crooker v. ATF, 789 F.2d 64,
65-67 (D.C. Cir. 1986) (finding that agency failed to demonstrate that disclosure
would interfere with enforcement proceedings); Grasso v. IRS, 785 F.2d 70, 77 (3d Cir.
1986) (stating that the "government must show, by more than conclusory statement,
how the particular kinds of investigatory records requested would interfere with a
pending enforcement proceeding"); Dow Jones Co. v. FERC, 219 F.R.D. 167, 173 (C.D.
Cal. 2002) (illustrating that an agency cannot easily demonstrate harm to its
proceedings when "the subjects of the investigation . . . have copies" of the record in
question); Scheer, 35 F. Supp. 2d at 13-14 (finding that the agency's assertion that
disclosure to the requester would harm its investigation "is belied" by the agency's
full disclosure to the target of the investigation; therefore, the agency "has not met
its burden of offering clear proof that disclosure . . . would have interfered with a law
enforcement proceeding within the meaning of FOIA exemption 7(A)"); Jefferson v.
Reno, No. 96-1284, 1997 U.S. Dist. LEXIS 3064, at *10 (D.D.C. Mar. 17, 1997) (ruling that
neither agency's declaration nor its checklist "describes how the release of any or all
responsive documents could reasonably be expected to interfere with these
enforcement proceedings"); ACLU Found. v. United States Dep't of Justice, 833 F.
Supp. 399, 407 (S.D.N.Y. 1993) (explaining that possibility of interference was not so
evident when investigations referred to closed or "generalized class" of cases;
accordingly, government must provide sufficient information for court to decide
whether disclosure will actually threaten similar, ongoing enforcement proceedings);
see also FOIA Post, "Supreme Court Vacates and Remands in ATF Database Case"
(posted 3/25/03) (advising of Supreme Court decision to vacate -- i.e., render "null and
void" -- Seventh Circuit's Exemption 7(A) decision in City of Chicago v. United States
Dep't of the Treasury, 287 F.3d 628 (7th Cir.), amended upon denial of reh'g en banc,
297 F.3d 672 (7th Cir. 2002), vacated & remanded sub nom. United States Dep't of
Justice v. City of Chicago, 537 U.S. 1229 (2003), in light of new legislation).
6. North v. Walsh, 881 F.2d 1088, 1100 (D.C. Cir. 1989) (stating that the standard is
"whether disclosure can reasonably be expected to interfere in a palpable, particular
way" with enforcement proceedings); see also Goodman v. United States Dep't of
Labor, No. CV-01-515-ST, 2001 U.S. Dist. LEXIS 22748, at *13 (D. Or. Dec. 12, 2001)
(magistrate's recommendation) (explaining that "the scope of discovery . . . is not the
issue," and that the withholding was proper under FOIA standards), adopted (D. Or.
Jan. 14, 2002); Warren v. United States, No. 1:99-1317, 2000 U.S. Dist. LEXIS 17660, at
*18 (N.D. Ohio Oct. 13, 2000) (explaining that although plaintiffs "will likely be entitled
to release of all the documents at issue in this proceeding, through the criminal
discovery process, that fact does not prohibit reliance on Exemption 7 in the context
of this case").
7. Robbins Tire, 437 U.S. at 230; see Solar Sources, Inc. v. United States, 142 F.3d
1033, 1037 (7th Cir. 1998) (stating that "Exemption 7(A) does not permit the
Government to withhold all information merely because that information was
compiled for law enforcement purposes"); Dickerson v. Dep't of Justice, 992 F.2d
1426, 1431 (6th Cir. 1993) (reiterating that when investigation is over and purpose of it
has expired, information should be disclosed); Hamilton, 1997 U.S. Dist. LEXIS 18900,
at **25-26 (declaring that Exemption 7(A) was enacted "mainly to overrule judicial
decisions that prohibited disclosure of investigatory files in 'closed' cases"); cf. Kay v.
FCC, 976 F. Supp. 23, 37-38 (D.D.C. 1997) (explaining that agency "may continue to
invoke Exemption 7(A) to withhold the requested documents until . . . [proceeding]
comes to a conclusion"), aff'd, 172 F.3d 919 (D.C. Cir. 1998) (unpublished table
8. See, e.g., Seegull Mfg. Co. v. NLRB, 741 F.2d 882, 886-87 (6th Cir. 1984) (finding
that NLRB administrative practice of continuing to assert Exemption 7(A) for six-month "buffer period" after termination of proceedings "arbitrary and capricious");
Barney v. IRS, 618 F.2d 1268, 1273-74 (8th Cir. 1980) (explaining that once enforcement
proceedings are "either concluded or abandoned, exemption 7(A) will no longer
apply"); City of Chicago v. United States Dep't of the Treasury, No. 01-C-3835, 2002
WL 370216, at *4 (N.D. Ill. Mar. 8, 2002) (rejecting again, in a second case, the agency's
argument that release of the information "would allow members of the general
public to 'connect the dots'" in a case in which the agency "does not know whether
an investigation is ongoing [but] nevertheless releases the information [routinely]
after a fixed period of time") (appeal suspended); W. Journalism Ctr. v. Office of the
Indep. Counsel, 926 F. Supp. 189, 192 (D.D.C. 1996) ("By definition until his or her work
is completed, an Independent Counsel's activities are ongoing . . . and once the task
is completed . . . all the records . . . are required to be turned over to the Archivist
and at that time would be subject to FOIA requests."), aff'd, No. 96-5178, 1997 WL
195516 (D.C. Cir. Mar. 11, 1997); Linn v. United States Dep't of Justice, No. 92-1406,
1995 WL 417810, at *25 (D.D.C. June 6, 1995) (ruling that Exemption 7(A) is not
applicable when there is "no evidence before the Court that any investigation
exists"), appeal dismissed voluntarily, No. 97-5122 (D.C. Cir. July 14, 1997); Kilroy v.
NLRB, 633 F. Supp. 136, 142-43 (S.D. Ohio 1985) (holding that Exemption 7(A) "applies
only when a law enforcement proceeding is pending"), aff'd, 823 F.2d 553 (6th Cir.
1987) (unpublished table decision); Antonsen v. United States Dep't of Justice, No. K-82-008, slip op. at 9-10 (D. Alaska Mar. 20, 1984) ("It is difficult to conceive how the
disclosure of these materials could have interfered with any enforcement
proceedings" after a criminal defendant had been tried and convicted.).
9. See, e.g., Manna, 51 F.3d at 1165 (ruling that when "prospective criminal or civil
(or both) proceedings are contemplated," information is protected from disclosure);
In Def. of Animals, No. 99-3024, slip op. at 5 (D.D.C. Sept. 28, 2001) ("Previous USDA
investigations of animal deaths at the Foundation resulted in formal charges . . . and
there is no evidence that the agency would treat its most recent investigation
differently."); Judicial Watch, No. 00-745, slip op. at 9 (D.D.C. Apr. 20, 2001) (explaining
that "[a]lthough no enforcement proceedings are currently pending, the FBI has
represented that such proceedings may become necessary as the investigation
progresses"); General Elec. Co. v. EPA, 18 F. Supp. 2d 138, 144 (D. Mass. 1998)
(explaining that "it is entirely reasonable for the [a]gency to anticipate that
enforcement proceedings are in the offing"); Kay, 976 F. Supp. at 38 ("Moreover, if the
proceeding is not pending, an agency may continue to invoke Exemption 7(A) so long
as the proceeding is regarded as prospective."); Foster v. United States Dep't of
Justice, 933 F. Supp. 687, 692 (E.D. Mich. 1996) (holding that disclosure "could impede
ongoing government investigation (and prospective prosecution)"); Cudzich v. INS,
886 F. Supp. 101, 106 (D.D.C. 1995) (stating that "where disclosure of information
would cause impermissible harm to a concrete prospective law enforcement
proceeding, such a situation is also within the protective scope of Exemption 7(A)");
Richman v. United States Dep't of Justice, No. 90-C-19, slip op. at 13 (W.D. Wis. Feb. 2,
1994) (finding that files pertaining to "pending and prospective" criminal enforcement
proceedings are protected); Southam News v. INS, 674 F. Supp. 881, 887 (D.D.C. 1987)
(recognizing that Service Lookout Book, containing "names of violators, alleged
violators and suspected violators," is protected as proceedings clearly are at least
prospective against each violator); Marzen v. HHS, 632 F. Supp. 785, 805 (N.D. Ill. 1985)
(concluding that Exemption 7(A) prohibits disclosure of law enforcement records
when their release "would interfere with enforcement proceedings, pending,
contemplated, or in the future."), aff'd, 825 F.2d 1148 (7th Cir. 1987).
10. See, e.g., Ctr. for Nat'l Sec. Studies v. United States Dep't of Justice, 331 F.3d 918,
928 (D.C. Cir. 2003) (determining that release of the information at issue could allow
terrorists to "more easily formulate or revise counter-efforts" and could be of "great
use to al Qaeda in plotting future terrorist attacks"), cert. denied, 124 S. Ct. 1041
(2004); Moorefield v. United States Secret Serv., 611 F.2d 1021, 1026 (5th Cir. 1980)
(holding that material pertaining to "Secret Service investigations carried out
pursuant to the Service's protective function" -- to prevent harm to protectees -- is
eligible for Exemption 7(A) protection); Living Rivers, Inc. v. United States Bureau of
Reclamation, 272 F. Supp. 2d 1313, 1322 (D. Utah 2003) (recognizing that "release of
[dam inundation] maps could increase the risk of an attack on the dams," and ruling
that withholding was proper on Exemption 7(F) grounds).
11. See Antonelli v. United States Parole Comm'n, No. 93-0109, slip op. at 3-4 (D.D.C.
Feb. 23, 1996) (reiterating that courts repeatedly find "lengthy, delayed or even
dormant investigations" covered by Exemption 7(A) and holding that release of
eight-year-old investigative file "would interfere with possible proceedings"); Butler
v. United States Dep't of Justice, No. 86-2255, 1994 WL 55621, at *24 (D.D.C. Feb. 3,
1994) (stating that agency "leads" were not stale simply because they were several
years old given that indictee remained at large), appeal dismissed voluntarily, No.
94-5078 (D.C. Cir. Sept. 8, 1994); Afr. Fund v. Mosbacher, No. 92-289, 1993 WL 183736,
at *4 (S.D.N.Y. May 26, 1993) (finding that documents that would interfere with
lengthy or delayed investigation fall within protective ambit of Exemption 7(A)); see
also Davoudlarian v. Dep't of Justice, No. 93-1787, 1994 WL 423845, at **2-3 (4th Cir.
Aug. 15, 1994) (holding that records of open investigation of 1983 murder remained
12. Dickerson, 992 F.2d at 1432 (affirming district court's conclusion that FBI's
investigation into 1975 disappearance of Jimmy Hoffa remained ongoing and
therefore was still "prospective" law enforcement proceeding). But see Detroit Free
Press v. United States Dep't of Justice, 174 F. Supp. 2d 597, 600 (E.D. Mich. 2001)
(ordering an in camera inspection of FBI's records of the Hoffa disappearance
investigation in light of the "inordinate amount of time that [it] has remained an
allegedly pending and active investigation").
13. See, e.g., Nat'l Pub. Radio v. Bell, 431 F. Supp. 509, 514-15 (D.D.C. 1977)
(explaining that although the investigation into the death of nuclear-industry
whistleblower Karen Silkwood is "dormant," it "will hopefully lead to a 'prospective
law enforcement proceeding'" and that disclosure "presents the very real possibility
of a criminal learning in alarming detail of the government's investigation of his crime
before the government has had the opportunity to bring him to justice"); see also
FOIA Update, Vol. V, No. 2, at 6.
14. See In Def. of Animals, No. 99-3024, slip op. at 5 (D.D.C. Sept. 28, 2001) (stating
that an "anticipated filing satisfies FOIA's requirement of a reasonably anticipated,
concrete prospective law enforcement proceeding"); Judicial Watch, No. 00-745, slip
op. at 9-10 (D.D.C. Apr. 20, 2001) (accepting agency's representation that
"proceedings may become necessary as investigation progresses" as sufficient to
establish concrete possibility); ACLU Found., 833 F. Supp. at 407 (finding that
possibility of interference not so evident for investigative documents related to
generalized categories of cases; agency must show that disclosure would actually
threaten similar, ongoing enforcement proceedings); Badran v. United States Dep't
of Justice, 652 F. Supp. 1437, 1440 (N.D. Ill. 1987) (relying on pre-amendment
language, court held that mere possibility that person mentioned in file might some
day violate law was insufficient to invoke Exemption 7(A)); Nat'l Pub. Radio, 431 F.
Supp. at 514 (holding that "dormant" investigation "is nonetheless an 'active' one,"
which justifies Exemption 7(A) applicability); see also 120 Cong. Rec. S9329 (daily ed.
May 30, 1974) (statement of Sen. Hart).
15. See Solar Sources, 142 F.3d at 1040 (explaining that although the government
has "closed" its cases against certain defendants by obtaining plea agreements and
convictions, withholding is proper because the information "compiled against them
is part of the information" in ongoing cases against other targets); New England
Med. Ctr. Hosp. v. NLRB, 548 F.2d 377, 385-86 (1st Cir. 1976) (finding Exemption 7(A)
applicable when a "closed file is essentially contemporary with, and closely related
to, the pending open case" against another defendant; applicability of exemption
does not hinge on "open" or "closed" label agency places on a file); Givner v.
Executive Office for United States Attorneys, No. 99-3454 slip op. at 3, 7 (D.D.C. Mar.
1, 2001) (explaining that although plaintiff is "serving his sentence," withholding is
proper because "release of prosecutorial documents could potentially jeopardize"
pending trial and habeas action of co-conspirators); Cucci v. DEA, 871 F. Supp. 508,
512 (D.D.C. 1994) (finding protection proper when information pertains to "multiple
intermingled investigations and not just the terminated investigation" of subject);
Engelking v. DEA, No. 91-0165, slip op. at 6 (D.D.C. Nov. 30, 1992) (reasoning that
information in inmate's closed file was properly withheld because fugitive discussed
in requester's file is still at large; explaining that records from closed file can relate to
law enforcement efforts which are still active or in prospect), summary affirmance
granted in pertinent part, vacated in part & remanded, No. 93-5091, 1993 U.S. Dist.
LEXIS 33824 (D.C. Cir. Oct. 6, 1993); Warmack v. Huff, No. 88-H-1191-E, slip op. at 22-23
(N.D. Ala. May 16, 1990) (finding that Exemption 7(A) applicable to documents in
multi-defendant case involving four untried fugitives), aff'd, 949 F.2d 1162 (11th Cir.
1991) (unpublished table decision); Freedberg v. Dep't of the Navy, 581 F. Supp. 3, 4
(D.D.C. 1982 ) (holding that Exemption 7(A) remained applicable when two
murderers were convicted but two other remained at large). But see Linn, 1995 WL
417810, at *9 (explaining that the statement that "some unspecified investigation
against a fugitive, or perhaps more than one fugitive, was ongoing . . . without any
explanation of how release" of the information would interfere with "efforts to
apprehend this (or these) fugitive (or fugitives) is patently insufficient to justify the
withholding of information").
16. See Franklin v. United States Dep't of Justice, No. 98-5339, slip op. at 3 (11th Cir.
July 13, 1999) (holding that "disclosure could have reasonably been expected to
interfere with [defendant's] federal appeal and state criminal trial"); Hoffman v.
United States Dep't of Justice, No. 98-1733-A, slip op. at 3 (W.D. Okla. Sept. 21, 2001)
(explaining that although the federal trial was completed, a decision to proceed with
a state prosecution "convinces the Court" that the requested records should not be
disclosed); Cudzich, 886 F. Supp. at 106-07 (holding that while INS investigation is
complete, parts of file "containing information pertaining to pending investigations
of other law enforcement agencies" are properly withheld); Kuffel v. United States
Bureau of Prisons, 882 F. Supp. 1116, 1126 (D.D.C. 1995) (ruling that Exemption 7(A)
remains applicable when inmate has criminal prosecutions pending in other cases);
Dickie v. Dep't of the Treasury, No. 86-649, slip op. at 8 (D.D.C. Mar. 31, 1987) (holding
that release of documents from closed federal prosecution could jeopardize state
17. See, e.g., Kansi v. United States Dep't of Justice, 11 F. Supp. 2d 42, 45 (D.D.C.
1998) (explaining that the "potential for interference . . . that drives the 7(A)
exemption . . . exists at least until plaintiff's conviction is final"; thus, plaintiff's
pending motion for new a trial is "a pending law enforcement proceeding for
purposes of FOIA"); see also Keen v. Executive Office for United States Attorneys,
No. 96-1049, slip op. at 7 (D.D.C. July 14, 1999) (magistrate's recommendation)
(reasoning that pending motion to redetermine sentence qualifies as "pending
enforcement proceeding for purposes of FOIA Exemption 7(A)"), adopted (D.D.C.
Mar. 28, 2000); Burke v. DEA, No. 96-1739, slip op. at 5 (D.D.C. Mar. 31, 1998) (finding
that post-conviction appeal qualifies as law enforcement proceeding).
18. See Pons v. United States Customs Serv., No. 93-2094, 1998 U.S. Dist. LEXIS 6084,
at *14 (D.D.C. Apr. 23, 1998) (ruling that disclosure of information not used in
plaintiff's prior trials could "interfere with another enforcement proceeding");
Hemsley v. United States Dep't of Justice, No. 90-2413, slip op. at 10 (D.D.C. Sept. 24,
1992) (holding that Exemption 7(A) protection applied when the "only pending
criminal proceeding" was an appeal of the denial of a new trial motion; "[k]nowledge
of potential witnesses and documentary evidence that were not used during the
first trial" could "genuinely harm government's case"); cf. Senate of P.R. v. United
States Dep't of Justice, 823 F.2d 574, 578 (D.C. Cir. 1987) (relying on language of
statute prior to 1986 FOIA amendments to remand case for additional explanation of
why no segregable portions of documents could be released without interfering
with related proceedings); Narducci v. FBI, No. 93-0327, slip op. at 3-4 (D.D.C. Sept.
22, 1995) (explaining that Exemption 7(A) remains applicable "in light of retrial, not
yet scheduled, of several defendants," when agency had "adequately identified" how
disclosure would interfere with retrial; agency must release all "public source
19. See Keen, No. 96-1049, slip op. at 6-8 (D.D.C. July 14, 1999) (finding use of
Exemption 7(A) proper to withhold entire criminal file while motion to "redetermine"
sentence is pending); Kansi, 11 F. Supp. 2d at 45 (holding that Exemption 7(A)
protection "exists at least until plaintiff's conviction is final"); Burke, No. 96-1739, slip
op. at 5 (D.D.C. Mar. 31, 1998) (ruling that protection of records "compiled for . . .
prosecution of plaintiff in a previous criminal trial" is proper in light of plaintiff's post-conviction appeal because "disclosure of these records could harm the government's
prosecution of the plaintiff's appeal"); Crooker v. ATF, No. 83-1646, slip op. at 1-2
(D.D.C. Apr. 30, 1984) (finding "no question that Exemption 7(A) is controlling" while
motion to withdraw guilty plea is still pending).
20. See, e.g., Alaska Pulp Corp. v. NLRB, No. 90-1510D, slip op. at 2 (W.D. Wash. Nov.
4, 1991) (stating that Exemption 7(A) remains applicable when corporation found
liable for unfair labor practices, but parties remain embroiled in controversy as to
compliance); Erb v. United States Dep't of Justice, 572 F. Supp. 954, 956 (W.D. Mich.
1983) (finding withholding proper when investigation "concluded 'for the time being'"
and then subsequently reopened); ABC Home Health Servs. v. HHS, 548 F. Supp. 555,
556, 559 (N.D. Ga. 1982) (holding documents protected when "final settlement" was
subject to reevaluation for at least three years); Timken v. United States Customs
Serv., 531 F. Supp. 194, 199-200 (D.D.C. 1981) (finding protection proper when final
determination could be challenged or appealed); Zeller v. United States, 467 F. Supp.
487, 501 (S.D.N.Y. 1979) (finding that records compiled to determine whether party is
complying with consent decree were protectible).
21. Injex Indus. v. NLRB, 699 F. Supp. 1417, 1419-20 (N.D. Cal. 1986).
22. See, e.g., Phila. Newspapers, Inc. v. HHS, 69 F. Supp. 2d 63, 66-67 (D.D.C. 1999)
(finding that release of audit statistics and details of settlement from closed
investigation of one hospital would not interfere with possible future settlements
with other institutions when none were being investigated); Ctr. for Auto Safety v.
Dep't of Justice, 576 F. Supp. 739, 751-55 (D.D.C. 1983) (rejecting the agency's
argument that "disclosures which make consent decree negotiations more difficult"
qualify as "interference" with law enforcement proceedings because "release at this
time of the documents at issue will occur after the termination of any proceeding to
which the documents are relevant"); see also Van Bourg, Allen, Weinberg & Roger v.
NLRB, 751 F.2d 982, 985 (9th Cir. 1985) (stating that documents from unfair labor
practice are not protected by Exemption 7(A) when no claim is pending or
contemplated); Poss v. NLRB, 565 F.2d 654, 656-58 (10th Cir. 1977) (same); cf. Linn,
1995 WL 417810, at *9 (finding that an unspecified possible investigation against an
unknown number of fugitives "is patently insufficient to justify the withholding of
information"); Badran, 652 F. Supp. at 1440 (calling the agency's position "bewildering
and indefensible" when it argued that Exemption 7(A) was proper because it "could
use [the information] against a person who might some day violate immigration
23. See, e.g., Ctr. for Nat'l Sec. Studies, 331 F.3d at 926 (stating that law
enforcement proceeding requirement is met by investigation into "breach of this
nation's security"); Edmonds v. FBI, 272 F. Supp. 2d 35, 54-55 (D.D.C. 2003) (concluding
that agency justified its withholding of records under Exemption 7(A) in case
involving "national security issues").
24. See, e.g., Manna, 51 F.3d at 1165 (finding that criminal law enforcement
proceedings involving La Cosa Nostra and its "long, sordid and bloody history of
racketeer domination and exploitation" meets threshold); Del Viscovo v. FBI, 903 F.
Supp. 1, 3 (D.D.C. 1995) (explaining that ongoing criminal investigation of organized
crime activities including narcotics, gambling, stolen property, and loan sharking
satisfies threshold), summary affirmance granted, No. 95-5388 (D.C. Cir. Jan. 24, 1997);
Gould, 688 F. Supp. at 703 (ruling that post-award audit reports pertaining to
ongoing criminal investigation into pricing discounts qualify); Nat'l Pub. Radio, 431 F.
Supp. at 510, 513-15 (reasoning that documents relating to a nuclear-safety
whistleblower's plutonium contamination, given the "possibility of obstruction of
justice," fall "within the protective scope of Exemption 7(A)").
25. See, e.g., Manna, 51 F.3d at 1165 (stating that disclosure would interfere with
contemplated civil proceedings); Judicial Watch v. Rossotti, 285 F. Supp. 2d 17, 29
(D.D.C. 2003) (concluding that the "documents in question relate to an ongoing civil
investigation by IRS and are exempt under Exemption 7(A)"); Bender v. Inspector
Gen. NASA, No. 90-2059, slip op. at 1-2, 8 (N.D. Ohio May 24, 1990) (explaining that
information relating to "official reprimand" was reasonably expected to interfere
with government's proceeding to recover damages "currently pending" before same
26. See, e.g., 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");
Rosenglick v. IRS, No. 97-747-18A, 1998 U.S. Dist. LEXIS 3920, at *6 (M.D. Fla. Mar. 10,
1998) (confirming that phrase "law enforcement purposes" includes "civil, criminal,
and administrative statutes and regulations such as those promulgated and
enforced by the IRS"); Farm Fresh, Inc. v. NLRB, No. 91-603-N, slip op. at 1, 7-9 (E.D.
Va. Nov. 15, 1991) (holding that NLRB's unfair labor practice action constitutes law
enforcement proceedings); Alaska Pulp, No. 90-1510D, slip op. at 2, 5 (W.D. Wash.
Nov. 4, 1991) (explaining that after finding of unfair labor practice, compliance
investigation to determine back pay awards constitutes enforcement proceedings);
Concrete Constr. Co. v. United States Dep't of Labor, No. 2-89-649, slip op. at 2-6 (S.D.
Ohio Oct. 26, 1990) (ruling that Department of Labor's regulation and inspection of
construction sites constitute enforcement proceedings); Injex, 699 F. Supp. at 1419
(finding that NLRB's responsibility to process collective bargaining representation
elections constitutes law enforcement proceedings); Fedders Corp. v. FTC, 494 F.
Supp. 325, 327-28 (S.D.N.Y.) (concluding that FTC investigation into allegations of
unfair advertising and offering of equipment warranties constitutes law enforcement
proceedings), aff'd, 646 F.2d 560 (2d Cir. 1980) (unpublished table decision).
27. Mapother v. Dep't of Justice, 3 F.3d 1533, 1540 (D.C. Cir. 1993).
28. See, e.g., Shaw v. FBI, 749 F.2d 58, 64 (D.C. Cir. 1984) (holding that "an authorized
federal investigation into the commission of state crime [the JFK assassination]
qualifies"); Hoffman, No. 98-1733-A, slip op. at 3 (W.D. Okla. Sept. 21, 2001) (stating
that although federal proceedings were completed, a decision to proceed with state
prosecution qualifies); Butler, 888 F. Supp. at 182-83 (explaining that release could
jeopardize pending state criminal proceeding).
29. See, e.g., Bevis v. Dep't of State, 801 F.2d 1386, 1388 (D.C. Cir. 1986) (stating that
the "language of the statute makes no distinction between foreign and domestic
enforcement purposes" (citing Shaw, 749 F.2d at 64)); Zevallos-Gonzalez v. DEA, No.
97-1720, slip op. at 11-13 (D.D.C. Sept. 25, 2000) (explaining that even though no
indictment in United States was likely, disclosure of information sought would
"interfere with efforts of Peruvian officials" to investigate and prosecute).
30. See Mapother, 3 F.3d at 1542 ("We believe that a categorical approach is
appropriate in determining the likelihood of enforcement proceedings in cases
where an alien is excluded from entry into the United States because of his alleged
participation in Nazi persecutions on genocide. Otherwise, we must exercise our
faculties as mind-readers."); Nat'l Sec. Archive v. FBI, 759 F. Supp. 872, 883 (D.D.C.
1991) (reasoning that FBI's justification that disclosure would interfere with its
overall counterintelligence program "must be rejected" as too general to be type of
proceeding cognizable under Exemption 7(A), and permitting FBI to demonstrate
whether there existed any specific pending or contemplated law enforcement
31. Schiller v. NLRB, 964 F.2d 1205, 1208 (D.C. Cir. 1992); see also, e.g., Delaney,
Migdail & Young, Chartered v. IRS, 826 F.2d 124, 127 (D.C. Cir. 1987) (extending
attorney work-product privilege to documents prepared at time when identity of
prospective litigation opponent was not yet known).
32. See Phila. Newspapers, 69 F. Supp. at 66-67 (rejecting agency's argument that
disclosure of audit statistics would interfere with possible future action because
"investigation is over"); Ctr. for Auto Safety, 576 F. Supp. at 751-55 (stating that
modification of consent decree from closed proceeding not protected when not
being used in on going proceeding; rejecting agen-cy's argument that disclosure
would make future negotiations more difficult); see also Van Bourg, Allen, Weinberg
& Roger, 751 F.2d at 985 (finding that Exemption 7(A) does not apply to documents
from closed proceeding when no other claim is pending or contemplated); Poss, 565
F.2d at 656-58 (same); Linn,1995 WL 417810, at *25 (ruling that Exemption 7(A) is not
applicable when no investigation exists); Badran, 652 F. Supp. at 1440 (rejecting
agency's attempt to equate "might some day" with "pending").
33. Badran, 652 F. Supp. at 1440.
34. See, e.g., Solar Sources, 142 F.3d at 1040 (finding use of Exemption 7(A) proper in
closed case when there is ongoing case against other targets); New England Med.
Ctr. Hosp., 548 F.2d at 385-86 (stating that protection of closed file is proper when it
relates to pending open case); Givner, No. 99-3454, slip op. at 3, 7 (D.D.C. Mar. 1, 2001)
(explaining that although plaintiff is "serving his sentence," impeding trial of two co-conspirators and habeas action of convicted co-conspirator "clearly satisfy"
requirement); Concrete Constr., No. 2-89-649, slip op. at 3-5 (S.D. Ohio Oct. 26, 1990)
(approving use of Exemption 7(A) when release of program plans would permit
prospective targets to gauge "potential of being investigated"); see also Engelking,
No. 91-0165, slip op. at 6 (D.D.C. Nov. 30, 1992) (ruling that inmate's file was properly
withheld when fugitive was involved); Warmack, No. 88-H-1191-E, slip op. at 22-23
(N.D. Ala. May 16, 1990) (holding Exemption 7(A) applicable to documents involving
35. See, e.g., Dow Jones, 219 F.R.D. at 174 (stating that the "defendant fails to cite,
and the Court was unable to locate, any case in which a court upheld an agency's
determination to withhold disclosure pursuant to Exemption 7(A) because disclosure
would interfere with settlement discussions or impede the willingness of targets of
the investigation to voluntarily disclose additional information"); Ctr. for Auto Safety,
576 F. Supp. at 751-55 (holding that records concerning modification of consent
decree from closed proceeding are not protectible when "not being used in an on-going proceeding"; disclosure would not interfere with future settlements); see also
Van Bourg, Allen, Weinberg & Roger, 751 F.2d at 985 (stating that documents from
unfair labor practice are not protected by Exemption 7(A) when no claim is pending
or contemplated); Poss, 565 F.2d at 656-58 (same).
36. Ctr. for Nat'l Sec. Studies, 331 F.3d at 928, 932 (emphasizing that "we owe the
same deference under Exemption 7(A) in appropriate cases, such as this one").
37. Id. at 928.
38. See id. at 926-28 (citing Zadvydas v. Davis, 533 U.S. 678, 696 (2001) (stating that
terrorism warrants heightened deference) (non-FOIA case); Dep't of the Navy v.
Egan, 484 U.S. 518, 530 (1988) (concluding that courts should be reluctant to intrude
into national security affairs) (non-FOIA case); CIA v. Sims, 471 U.S. 159, 179 (1985)
(explaining that the CIA is familiar with "the whole picture" so its decisions merit
deference); King v. United States Dep't of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987)
(stating that "the court owes substantial weight to detailed agency explanations in
the national security context").
39. Ctr. for Nat'l Sec. Studies, 331 F.3d at 928-30.
40. See FOIA Post, "FOIA Officers Conference Held on Homeland Security" (posted
7/3/03) (discussing "the safeguarding and protection of homeland security-related
41. Ctr. for Nat'l Sec. Studies, 331 F.3d at 932.
42. Id. at 928; see also Edmonds, 272 F. Supp. 2d at 55 (addressing the issue of harm
regarding "the likelihood of intimidation of individuals involved in the investigation").
43. Ctr. for Nat'l Sec. Studies, 331 F.3d at 926 (quoting Campbell v. United States
Dep't of Justice, 164 F.3d 20, 32 (D.C. Cir. 1998), and Pratt v. Webster, 673 F.2d 408, 419
(D.C. Cir. 1982)).
44. See, e.g., FOIA Post, "FOIA Officers Conference Held on Homeland Security"
(posted 7/3/03) (emphasizing importance of protecting sensitive homeland security-related information under FOIA's law enforcement exemptions); see also Ctr. for
Nat'l Sec. Studies, 331 F.3d at 928 (discussing government's descriptions of harm
flowing from release of particular types of information, and finding that
"government's expectation [of harm] is reasonable").
45. 437 U.S. at 236.
46. Reporters Comm., 489 U.S. at 776-80 (Exemption 7(C)).
47. See, e.g., Lynch v. Dep't of the Treasury, No. 99-1697, 2000 WL 123236, at *2 (9th
Cir. Jan. 28, 2000) (explaining that "government need not 'make a specific factual
showing with respect to each withheld document'" (quoting Lewis, 823 F.2d at 380));
Solar Sources, 142 F.3d at 1038 (reiterating that government "may justify its
withholdings by reference to generic categories of documents, rather than
document-by-document"); In re Dep't of Justice, 999 F.2d 1302, 1308 (8th Cir. 1993) (en
banc) (The "Supreme Court has consistently interpreted Exemption 7 of the FOIA
(specifically so far subsections 7(A), 7(C), and 7(D))" to permit the government to
proceed on a "categorical basis" and to not require a document-by-document
Vaughn Index.), on remand sub nom. Crancer v. United States Dep't of Justice, No.
89-234, slip op. at 6 (E.D. Mo. Oct. 4, 1994) (magistrate's recommendation) (approv-ing
FBI's "generic" affidavit as sufficient and denying plaintiff's requests for methodology
of document review and accounting of time spent reviewing documents), adopted
(E.D. Mo. Nov. 7, 1994); Dickerson, 992 F.2d at 1431 (stating that it is "often feasible for
courts to make 'generic determinations' about interference"); Wright, 822 F.2d at 646
(explaining that "a detailed listing is generally not required under Exemption 7(A)");
Spannaus, 813 F.2d at 1288 (stating that Supreme Court accepts generic
determinations); Curran, 813 F.2d at 475 (holding that generic determinations
permitted); Bevis, 801 F.2d at 1389 (finding that agency may take "generic approach,
grouping documents into relevant categories"); Crooker, 789 F.2d at 67 ("Because
generic determinations are permitted, the government need not justify its
withholdings document-by-document; it may instead do so category-of-document by
category-of-document."); Campbell, 682 F.2d at 265 (recognizing that "government
may focus upon categories of records"); Edmonds, 272 F. Supp. 2d at 54 (explaining
that the agency may group documents into categories, but that "[i]n order to utilize
this categorical approach, [an agency] must 'conduct a document-by-document
review' of all responsive documents to assign documents to the proper category and
'explain to the court how the release of each category would interfere with
enforcement proceedings'" (quoting Bevis, 801 F.2d 1389-90)); Moye, O'Brien,
O'Rourke, Hogan & Pickert v. Nat'l R.R. Passenger Corp., No. 6:02-CV-126, 2003 WL
21146674, at *18 (M.D. Fla. May 13, 2003) (stating that process of "description by
category of documents claimed to fall under exemption 7(A) has been approved by
many courts, including cases involving mixed-function agencies") (appeal pending);
Sandgrund v. SEC, 215 F. Supp. 2d 178, 180-81 (D.D.C. 2002) (acknowledging that
generic or categorical approach is proper, but finding some descriptions to be "too
broad or generic" to satisfy "government's Vaughn obligation" and to permit
meaningful court review); ACLU Found., 833 F. Supp. at 407 (An agency "must supply
sufficient facts about the alleged interference . . . . This does not, however,
necessarily require an individualized showing for each document."); see also FOIA
Update, Vol. V, No. 2, at 3-4 ("FOIA Counselor: The 'Generic' Aspect of Exemption
7(A)") (advising agencies on most efficient and practical uses of Exemption 7(A)); cf.
Robinson, No. 00-11182, slip op. at 8-9 (11th Cir. Mar. 15, 2001) (reiterating that while
courts can accept generic determinations of interference with enforcement
proceedings, government must "make at least some minimal showing"; because the
district court ruled sua sponte, it "lacked an adequate factual basis for its decision");
Beneville, No. 98-6137, slip op. 22-23 (D. Or. June 11, 2003) (holding that "Exemption
7(A) does not authorize 'blanket exemptions' for 'all records relating to an ongoing
investigation,'" and instructing agency to "submit addition briefing" describing why it
did not segregate and release records such as newspapers and magazine articles in
its initial response (quoting Campbell, 682 F.2d at 259)).
48. See Spannaus, 813 F.2d at 1287, 1289 (stating that "details regarding initial
allegations giving rise to this investigation; notification of [FBI Headquarters] of the
allegations and ensuing investigation; interviews with witnesses and subjects;
investigative reports furnished to the prosecuting attorneys," and similar categories
are all sufficient); Curran, 813 F.2d at 476 (same); Bevis, 801 F.2d at 1390 (explaining
that "identities of possible witnesses and informants, reports on the location and
viability of potential evidence, and polygraph reports" are sufficient; categories
"identified only as 'teletypes,' 'airtels,' or 'letters'" are insufficient); see also Cucci, 871
F. Supp. at 511-12 (holding that "evidentiary matters category" -- described as
"witness statements, information exchanged between the FBI and local law
enforcement agencies, physical evidence, evidence obtained pursuant to search
warrants and documents related to the case's documentary and physical evidence"
is sufficient); cf. Solar Sources, 142 F.3d at 1036-39 (explaining that agency's six broad
categories and eight subcategories "may have provided a sufficient factual basis" for
judicial review, but cautioning that "we might give some weight to appellants'
argument [that categories did not provide functional descriptions] had the district
court not conducted a thorough in camera review").
49. See, e.g., Lion Raisins, 354 F.3d at 1084 (explaining that its holding does "not
imply that the government must disclose facts that would undermine the very
purpose of its withholding," but that particularly if the agency wants the court to rely
on an in camera declaration, it must justify its exemption position "in as much detail
as possible"); Curran, 813 F.2d at 475 ("Withal, a tightrope must be walked:
categories must be distinct enough to allow meaningful judicial review, yet not so
distinct as prematurely to let the cat out of the investigative bag."); Crooker, 789 F.2d
at 67 ("The hallmark of an acceptable Robbins category is thus that it is functional; it
allows the court to trace a rational link between the nature of the document and the
alleged likely interference."); Pinnavaia v. FBI, No. 03-112, slip op. at 11 (D.D.C. Feb.
25, 2004) (stating that the declaration provides an "adequate basis to find that
disclosure of the withheld information would interfere with law enforcement
proceedings"); Voinche v. FBI, 46 F. Supp. 2d 26, 31 (D.D.C. 1999) (explaining that
generic approach is appropriate, but that agency must demonstrate how each
category of documents, if disclosed, could reasonably be expected to interfere with
law enforcement proceedings); Hoffman v. United States Dep't of Justice, No. 98-1733-A, slip op. at 15, 18 (W.D. Okla. Dec. 15, 1999) (explaining that while Supreme
Court has approved categorical approach, responsive documents must be grouped
into "categories that can be linked to cogent reasons for nondisclosure"); Kitchen v.
DEA, No. 93-2035, slip op. at 12-13 (D.D.C. Oct. 11, 1995) (approving categorical
descriptions when court can trace rational link between nature of document and
likely interference); cf. Inst. for Justice & Human Rights v. Executive Office of the
United States Attorney, No. 96-1469, 1998 U.S. Dist. LEXIS 3709, at **14-15 (N.D. Cal.
Mar. 18, 1998) (explaining that four cate-gories -- confidential informant, agency
reports, co-defendant extradition documents, and attorney work-product -- are too
general to be functional and ordering government to "recast" categories to show
how documents in "new categories would interfere with the pending proceedings");
Putnam v. United States Dep't of Justice, 873 F. Supp. 705, 714 (D.D.C. 1995) (stating
that agency "administrative inquiry file" is "patently inadequate" description);
SafeCard Servs. v. SEC, No. 84-3073, slip op. at 6 n.3 (D.D.C. May 19, 1988) (holding
that agency "file" is not sufficient generic category to justify withholding), aff'd in
part, rev'd in part on other grounds & remanded, 926 F.2d 1197 (D.C. Cir. 1991); Pruitt
Elec. Co. v. United States Dep't of Labor, 587 F. Supp. 893, 895-96 (N.D. Tex. 1984)
(explaining that disclosure of reference material consulted by investigator that might
aid an unspecified target in unspecified manner found not to cause interference).
50. Spannaus, 813 F.2d at 1287, 1289; Curran, 813 F.2d at 476 (finding that wide
range of records made some degree of generality "understandable -- and probably
51. Keen, No. 96-1049, slip op. at 10 (D.D.C. July 14, 1999).
52. See, e.g., Judicial Watch, 285 F. Supp. 2d at 29-30 (approving the IRS's use of
Exemption 7(A) to withhold names of specific employees because "[c]ollecting taxes
is an unpopular job, to put it mildly, and IRS 'lower level' employees are entitled to
some identity protection"); Kay, 976 F. Supp. at 39 (stating that agency "need not
establish that witness intimidation is certain to occur, only that it is a possibility");
Pully v. IRS, 939 F. Supp. 429, 436 (E.D. Va. 1996) ("All that is required is an objective
showing that interference could reasonably occur as the result of the documents'
disclosure."); Wichlacz v. United States Dep't of Interior, 938 F. Supp. 325, 331 (E.D.
Va. 1996) (holding that a "particularized showing of interference is not required;
rather, the government may justify nondisclosure in a generic fashion"), aff'd, 114 F.3d
1178 (4th Cir. 1997) (unpublished table decision); Gould, 688 F. Supp. at 703-04 n.34
(describing functional test as steering "middle ground" between detail required by
Vaughn Index and blanket withholding); Alyeska Pipeline Serv. v. EPA, No. 86-2176,
1987 WL 17081, at **2-3 (D.D.C. Sept. 9, 1987) (explaining that the government need
not "show that intimidation will certainly result," but that it must "show that the
possibility of witness intimidation exists"), aff'd, 856 F.2d 309 (D.C. Cir. 1988).
53. See Detroit Free Press, 174 F. Supp. 2d at 600-01 (concluding that information
published in a newspaper -- including quotes from the FBI Special Agent-in-Charge
of the Detroit Field Office -- "details some of the evidence developed and being
developed, and the direction and scope" of the twenty-seven-year-long Hoffa
disappearance investigation and thus "calls into question the veracity of the FBI's
justification for withholding"; in camera review ordered).
54. See Manna, 51 F.3d at 1164 n.5 ("Congress amended this exemption to relax
significantly the standard for demonstrating interference with enforcement
proceedings."); Gould, 688 F. Supp. at 703 n.33 (explaining that the 1986 FOIA
amendments "relaxed the standard of demonstrating interference with enforcement
55. 801 F.2d at 1389; see also Crooker, 789 F.2d at 67 (explaining that while
government can justify its withholding category-by-category, government cannot
justify its withholdings file-by-file); accord In re Dep't of Justice, 999 F.2d at 1309 (The
"government may meet its burden by . . . conducting a document-by-document
review to assign documents to proper categories."); Inst. for Justice, 1998 U.S. Dist.
LEXIS 3709, at **16-17 (determining that declarations "do not establish that each
document was reviewed"); Kay, 976 F. Supp. at 35 (explaining that an "agency must
conduct a document-by-document review in order to assign each document to a
proper category" (citing Bevis, 801 F.2d at 1389-90)); Jefferson, 1997 U.S. Dist. LEXIS
3064, at *10 n.1 (stating that "it would appear from a review of their declaration that
Defendants may have never conducted a document-by-document review of
responsive material," and denying the government's motion for summary judgment
pending further submission); Hillcrest Equities, Inc. v. United States Dep't of Justice,
No. CA3-85-2351-R, slip op. at 7 (N.D. Tex. Jan. 26, 1987) (declaring that government
must review each document to determine category in which it belongs).
56. Bevis, 801 F.2d at 1389-90; see also Beneville, No. 98-6137, slip op. at 17-18 (D. Or.
June 11, 2003) (three-fold task); Judicial Watch, No. 00-745, slip op. at 9 (D.D.C. Apr.
20, 2001) (same); Voinche, 46 F. Supp. 2d at 31 (same); Kay, 976 F. Supp. at 35 (same);
Jefferson, 1997 U.S. Dist. LEXIS 3064, at *12 (same); Maccaferri Gabions, Inc. v. United
States Dep't of Justice, No. 95-2576, slip op. at 11-13 (D. Md. Mar. 26, 1996) (same),
appeal dismissed voluntarily, No. 96-1513 (4th Cir. Sept. 19, 1996); Cudzich, 886 F.
Supp. at 106 (same); Cucci, 871 F. Supp. at 511 (same).
57. Robbins Tire, 437 U.S. at 232; see, e.g., Mapother, 3 F.3d at 1543 (holding that
release of prosecutor's index of all documents he deems relevant would provide
"critical insights into [government's] legal thinking and strategy"); Rosenberg v.
Freeh, No. 97-0476, slip op. at 1, 9 (D.D.C. May 13, 1998) (stating that release of code
name would be "premature and damaging"); Rosenglick, 1998 U.S. Dist. LEXIS 3920,
at **7-8 (explaining that "courts have liberally interpreted the term interference" and
holding that "[s]uch an interpretation makes sense" because early access could "aid
a wrongdoer in secreting or tampering with evidence [as well as reveal] nature,
scope, strategy and direction of the investigation"); Palmer Communications v.
United States Dep't of Justice, No. 96-M-777, slip op. at 4 (D. Colo. Oct. 30, 1996)
(finding that release would harm "court's ability to control the use of discovery
materials . . . [resulting in] an unacceptable interference with a law enforcement
proceeding"); Durham v. USPS, No. 91-2234, 1992 WL 700246, at *1 (D.D.C. Nov. 25,
1992) (deciding that release of investigative memoranda, witness files, and
electronic surveillance material would substantially interfere with pending homicide
investigation by impeding government's ability to prosecute its strongest case),
aff'd, No. 92-5511 (D.C. Cir. July 27, 1993); cf. Cecola v. FBI, No. 94 C 4866, 1995 WL
143548, at *2 (N.D. Ill. Mar. 30, 1995) (disallowing deposition of agency affiant when it
might alert plaintiff to government's investigative strategy). But see LeMaine v. IRS,
No. 89-2914, 1991 U.S. Dist. LEXIS 18651, at *13 (D. Mass. Dec. 10, 1991) (finding that
agency failed to demonstrate that release would "seriously impair any ongoing effort
to collect taxes or penalties . . . or to pursue criminal charges").
58. See, e.g., Lynch, 2000 WL 123236, at *2 (stating that agency declarations "made
clear" that release of records could harm "efforts at corroborating witness
statements . . . alert potential suspects . . . [and] interfere with surveillance"); Solar
Sources, 142 F.3d at 1039 (stating that disclosure could interfere by revealing "scope
and nature" of investigation); Dickerson, 992 F.2d at 1429 (holding that public
disclosure of information in Hoffa kidnapping file could reasonably be expected to
interfere with enforcement proceedings); Judicial Watch v. United States Dep't of
Justice, 306 F. Supp. 2d 58, 75-76 (D.D.C. 2004) (observing that release of documents
during course of investigation could damage agency's ability to obtain information);
Kay, 976 F. Supp. at 38-39 (holding that the agency "specifically established that
release" would permit the requester to gain insight into the FCC's evidence against
him, to discern the narrow focus of the investigation, to assist in circumventing the
investigation, and to create witness intimidation, and that disclosure would "reveal
the scope, direction and nature" of the investigation); Pully, 939 F. Supp. at 436
(explaining that the requester's promise not to interfere with the investigation is of
"no consequence" because government "need not take into account the individual's
propensity or desire to interfere"; objective showing that disclosure could lead to
interference found sufficient); W. Journalism, 926 F. Supp. at 192 (noting that
disclosure could "contaminate the investigative process"); Butler, 888 F. Supp. at 182-83 (finding that disclosure would interfere with pending investigations by local
police department of requester for stalking and murder); Kay v. FCC, 867 F. Supp. 11,
19 (D.D.C. 1994) (holding that documents, including letters to FCC from informants,
would reveal scope of investigation and strength of case against plaintiff; disclosure
of documents, "even redacted to exclude proper names," could lead to retaliatory
action and intimidation of witnesses); Vosburgh v. IRS, No. 93-1493, 1994 WL 564699,
at **2-3 (D. Or. July 5, 1994) (stating that disclosure of "DMV" record, memoranda of
interview, police report, and portions of search warrants could interfere with IRS's
investigation by revealing nature, scope, and direction of investigation, evidence
obtained, government's strategies, and by providing requester with opportunity to
create defenses and tamper with evidence); Int'l Collision Specialists, Inc. v. IRS, No.
93-2500, 1994 WL 395310, at **2, 4 (D.N.J. Mar. 2, 1994) (ruling that disclosure could
reasonably be expected to interfere with enforcement proceedings by enabling
requester "to determine nature, source, direction, and limits" of IRS investigation and
to "fabricate defenses and tamper with evidence"); Church of Scientology Int'l v. IRS,
845 F. Supp. 714, 721 (C.D. Cal. 1993) (finding that disclosure likely to interfere with
IRS's ability to investigate requester pursuant to Church Audit Procedures Act, 26
U.S.C. Â§ 7611 (2000)); Church of Scientology v. IRS, 816 F. Supp. 1138, 1157 (W.D. Tex.
1993) (stating that disclosure could reasonably be expected to interfere with
enforcement proceedings, subject IRS employees to harassment or reprisal, and
reveal direction and scope of IRS investigation); Nat'l Pub. Radio, 431 F. Supp. at 514-15 (explaining that disclosure would impair agency's continued, long-term
investigation into suspicious death of nuclear-safety whistleblower).
59. 437 U.S. at 239; see also Ctr. for Nat'l Sec. Studies, 331 F.3d at 929 (reasoning that
requested list of names "could be of great use" by terrorists in "intimidating
witnesses"); Solar Sources, 142 F.3d at 1039 (stating that disclosure could result in
"chilling and intimidation of witnesses"); Judicial Watch, Inc. v. United States Dep't of
Justice, 102 F. Supp. 6, 19-20 (D.D.C. 2000) (reiterating that prematurely disclosing
documents related to witnesses could result in witness tampering or intimidation
and could discourage continued cooperation); Anderson v. United States Dep't of
Treasury, No. 98-1112, slip op. at 7-8 (W.D. Tenn. Mar. 24, 1999) (finding that
disclosure allows "possibility of witness intimidation" and interference with
proceedings); Accuracy in Media, Inc. v. Nat'l Park Serv., No. 97-2109, 1998 U.S. Dist.
LEXIS 18373, at *26 (D.D.C. Nov. 13, 1998) (acknowledging that "disclosure of
witnesses' statements and reports acquired by law enforcement personnel may
impede the [Office of Independent Counsel's] investigation"), aff'd on other grounds,
194 F.3d 120 (D.C. Cir. 1999); Kansi, 11 F. Supp. 2d at 44 (holding that disclosure
provides "potential for interference with witnesses and highly sensitive evidence");
Anderson v. USPS, 7 F. Supp. 2d 583, 586 (E.D. Pa. 1998) (explaining that release
"would expose actual or prospective witnesses to undue influence or retaliation"),
aff'd, 187 F.3d 625 (3d Cir. 1999) (unpublished table decision); Rosenglick, 1998 U.S.
Dist. LEXIS 3920, at **7-8 (reasoning that disclosure "could aid a wrongdoer in
secreting or tampering with evidence or witnesses"); Wichlacz, 938 F. Supp. at 331
(finding Independent Counsel "justified in concluding that there are substantial risks
of witnesses intimidation or harassment [and] reduced witness cooperation" in
investigation which remains active and ongoing); Holbrook v. IRS, 914 F. Supp. 314,
316 (S.D. Iowa 1996) (releasing information might permit targets of pending
investigation to "tamper with or intimidate potential witnesses"); cf. Franklin, No. 98-5339, slip op. at 2-3 (11th Cir. July 13, 1999) (ruling that "district court correctly
determined" that disclosure of statements made by eight government witnesses
who testified at criminal trial "could have reasonably been expected to interfere with
. . . appeal and state criminal trial").
60. See, e.g., Ctr. for Nat'l Sec. Studies, 331 F.3d at 930 (recognizing that witnesses
"would be less likely to cooperate" and that a "potential witness or informant may be
much less likely to come forward and cooperate with the investigation if he believes
his name will be made public"); Kay, 976 F. Supp. at 38-39 (finding potential for
"witness intimidation and discourage[ment of] future witness cooperation" in
ongoing investigation of alleged violation of FCC's rules); Wichlacz, 938 F. Supp. at
331 (reducing cooperation of potential witnesses when they learn of disclosure, thus
interfering with ongoing investigation); Dow Jones & Co. v. United States Dep't of
Justice, 880 F. Supp. 145, 150 (S.D.N.Y. 1995) (Disclosing "statements by interviewees
. . . might affect the testimony or statements of other witnesses and could severely
hamper the Independent Counsel's ability to elicit untainted testimony."), vacated on
other grounds, 907 F. Supp. 79 (S.D.N.Y. 1995); Kay, 867 F. Supp. at 19 (explaining that
witness "intimidation would likely dissuade informants from cooperating with the
investigation as it proceeds"); Manna v. United States Dep't of Justice, 815 F. Supp.
798, 808 (D.N.J. 1993) (disclosing FBI reports could result in chilling effect on potential
witnesses), aff'd, 51 F.3d at 1165 (finding "equally persuasive the district court's
concern for persons who have assisted or will assist law enforcement personnel");
Crowell & Moring v. DOD, 703 F. Supp. 1004, 1011 (D.D.C. 1989) (holding that
disclosure of identities of witnesses would impair grand jury's ability to obtain
cooperation and would impede government's preparation of its case); Gould, 688 F.
Supp. at 703 (disclosing information would have chilling effect on sources who are
employees of requester); Nishnic v. United States Dep't of Justice, 671 F. Supp. 776,
794 (D.D.C. 1987) (disclosing identity of foreign source would end its ability to provide
information in unrelated ongoing law enforcement activities); Timken, 531 F. Supp. at
199-200 (Disclosure of investigation records would interfere with the agency's ability
"in the future to obtain this kind of information.").
61. 856 F.2d at 311. But cf. Clyde v. United States Dep't of Labor, No. 85-139, slip op.
at 6 (D. Ariz. July 3, 1986) (describing possible reluctance of contractors to enter into
voluntary conciliations with government if substance of negotiations released does
not constitute open law enforcement proceeding when specific conciliation process
has ended); Cohen v. EPA, 575 F. Supp. 425, 428-29 (D.D.C. 1983) (holding Exemption
7(A) inapplicable to protect letters sent to entities suspected of unlawfully releasing
hazardous substances when such disclosure not shown to deter parties from
cooperating with voluntary cleanup programs).
62. See, e.g., Swan v. SEC, 96 F.3d 498, 500 (D.C. Cir. 1996) (holding that the release
"could reveal much about the focus and scope" of the investigation); J.P. Stevens &
Co. v. Perry, 710 F.2d 136, 143 (4th Cir. 1983) (finding that premature disclosure would
"hinder [agency's] ability to shape and control investigations"); Judicial Watch, 306 F.
Supp. 2d at 75 (finding that release could reveal status of investigation and agency's
assessment of evidence (citing Swan, 96 F.3d at 500)); Youngblood v. Comm'r, No.
2:99-cv-9253, 2000 U.S. Dist. LEXIS 5083, at *36 (C.D. Cal. Mar. 6, 2000) (holding that
disclosure "could reveal the nature, scope, direction and limits" of the investigation);
Kay, 976 F. Supp. at 38-39 (discussing how release would reveal scope, direction, and
nature of investigation).
63. See, e.g., Moorefield, 611 F.2d at 1026 (explaining that disclosure of the
requested information would enable targets "to elude the scrutiny of the [Secret]
64. See, e.g., Solar Sources, 142 F.3d at 1039 (stating that disclosure "could result in
destruction of evidence"); Alyeska Pipeline, 856 F.2d at 312 (ruling that disclosure
could allow for destruction or alteration of evidence, fabrication of alibis, and
identification of witnesses); Accuracy in Media, Inc. v. United States Secret Serv., No.
97-2108, 1998 WL 185496, at *4 (D.D.C. Apr. 16, 1998) (explaining that release could
permit witnesses to modify, tailor, or fabricate testimony); Cujas v. IRS, No. 1:97-00741, U.S. Dist. LEXIS 6466, at *14 (M.D.N.C. Apr. 15, 1998) (finding that release of
information would "alert" plaintiff to scope and direction of case and provide
"opportunity to dispose" of assets), aff'd, 162 F.3d 1154 (4th Cir. 1998) (unpublished
table decision); Rosenglick, 1998 U.S. Dist. LEXIS 3920, at *7 (reiterating that
disclosure "could aid wrongdoer in secreting or tampering with evidence");
Maccaferri, No. 95-2576, slip op. at 14 (D. Md. Mar. 26, 1996) (determining that
disclosure of information could provide plaintiff with opportunity to alter or destroy
evidence); Holbrook, 914 F. Supp. at 316 (releasing information could allow targets to
construct defenses); Nishnic, 671 F. Supp. at 794 (releasing information might allow
subjects to suppress or fabricate evidence); see also Manna v. United States Dep't of
Justice, No. 92-1840, slip op. at 11 n.3 (D.N.J. Aug. 25, 1993) (finding that possible
suppression of evidence manifest when copy of search warrant was left on body of
gangland-style murder victim), aff'd, 51 F.3d 1158, 1162, 1164-65 (3d Cir. 1995); cf. Lion
Raisins, 354 F.3d at 1085 (explaining that the agency's concerns that disclosure would
provide the target with "an opportunity to forge or falsify" the documents at issue
are "speculative and farfetched" in a situation in which "there is no possibility that
Lion could tamper with or falsify the authentic USDA-retained originals . . . because
Lion seeks only copies").
65. See, e.g., Ctr. for Nat'l Sec. Studies, 331 F.3d at 928 (stating that the requested
information "would enable al Qeada or other terrorist groups to map the course of
the investigation," thus giving terrorist organizations "a composite picture"); Solar
Sources, 142 F.3d at 1039 (determining that disclosure could result in "revelation of
the scope and nature of the Government's investigation"); Mapother, 3 F.3d at 1543
(holding that release of prosecutor's index of all documents he deems relevant
would afford a "virtual roadmap through the [government's] evidence . . . which
would provide critical insights into its legal thinking and strategy"); Hambarian v.
Comm'r, No. 99-9000, 2000 U.S. Dist. LEXIS 6217, at *7 (C.D. Cal. Feb. 16, 2000)
(explaining that disclosure would reveal agency's theories and analysis of evidence);
McErlean v. United States Dep't of Justice, No. 97-7831, 1999 WL 791680, at *8
(S.D.N.Y. Sept. 30, 1999) (finding that release of memoranda would reveal substance
of information gathered and thus interfere with enforcement proceedings);
Anderson, No. 98-1112, slip op. at 7 (W.D. Tenn. Mar. 24, 1999) (reasoning that the
disclosure of the requested "checkspread" (the agency's compilation of checks
written by the requester) "could very well jeopardize the proceedings by more fully
revealing the scope and nature" of the government's case); Anderson, 7 F. Supp. 2d
at 586 (stating that the release of the requested information "would disclose the
focus" of the government's investigation); Maccaferri, No. 95-2576, slip op. at 14 (D.
Md. Mar. 26, 1996) (releasing information would give "premature insight into the
Government's strategy and strength of its position"); Cecola, 1995 WL 143548, at *3
(finding that release of information in ongoing criminal investigation might alert
plaintiff to government's investigative strategy); Afr. Fund, 1993 WL 183736, at *4
(explaining that disclosure "risks alerting targets to the existence and nature" of
investigation); Manna, 815 F. Supp. at 808 (holding that disclosure would obstruct
justice by revealing agency's strategy and extent of its knowledge); Raytheon Co. v.
Dep't of the Navy, 731 F. Supp. 1097, 1101 (D.D.C. 1989) (holding that the requested
information "could be particularly valuable to [an investigative target] in the event of
settlement negotiations"); Ehringhaus v. FTC, 525 F. Supp. 21, 22-23 (D.D.C. 1980)
(stating that disclosure would reveal the focus, "important aspects of the planned
strategy of [FTC] attorneys, [and] the strengths and weaknesses of the
66. Concrete Constr., No. 2-89-649, slip op. at 3-5 (S.D. Ohio Oct. 26, 1990) (holding
that disclosure of past fiscal year's Field Operation Program Plans, containing
projections for inspections and areas of concentration, would be "obviously a
detriment to the enforcement objectives of the Department of Labor" because
disclosure "takes away the guessing" about the potential of being investigated); see
also Farmworkers Legal Servs. v. United States Dep't of Labor, 639 F. Supp. 1368,
1374 (E.D.N.C. 1986) (approving the use of Exemptions 7(A) and 7(E) for information
pertaining to the agency's "targeting scheme," the disclosure of which "would 'reveal
the amount of investigative resources targeted and allocated'" for inspections).
67. See Robbins Tire, 437 U.S. at 224-25, 234-37 (concluding that disclosure of
"witness statements in pending unfair labor practice proceedings" would generally
interfere with enforcement proceedings); Lewis, 823 F.2d at 380 (agreeing with the
"reasoning of the Eight Circuit" that the "'government is not required to make a
specific factual showing [of harm] with respect to each withheld document'" (quoting
Barney, 618 F.2d at 1273)); Barney, 618 F.2d at 1273 (stating that disclosure "prior to
the institution of civil or criminal tax enforcement proceedings, would necessarily
interfere with such proceedings"); Steinberg v. IRS, 463 F. Supp. 1272, 1273 (S.D. Fla.
1979) (explaining that the "premature disclosure of [requested] records could
seriously hamper the ongoing investigations and prejudice the government's
68. North, 881 F.2d at 1097; see also Goodman, 2001 U.S. Dist. LEXIS 22748, at *13
(explaining that scope of permissible discovery is of no consequence under
Exemption 7(A)); Warren, 2000 U.S. LEXIS 17660, at *18 (stating that "discovery
process" is not relevant to applicability of Exemption 7(A)); cf. Senate of P.R., 823 F.2d
at 589 (finding that trial court's failure to describe harm from release of undescribed
documents developed for closed law enforcement investigation, but assertedly
relevant to open criminal law enforcement proceeding, did not permit upholding
Exemption 7(A) applicability).
69. See, e.g., Lion Raisins, 354 F.3d at 1085 (stating simplistically -- in a situation in
which the investigatory target already possessed copies of the documents sought --
that "[b]ecause Lion already has copies . . . USDA cannot argue that revealing the
information would allow Lion premature access to the evidence upon which it
intends to rely at trial"); Wright, 822 F.2d at 646 (observing that disclosure of
information provided by plaintiff would not provide plaintiff "with any information
that it does not already have"); Dow Jones, 219 F.R.D. at 174 (stating that there
cannot be harm, because "each target company has a copy . . . and therefore is on
notice as to the government's possible litigation strategy and potential witnesses");
Scheer, 35 F. Supp. 2d at 14 (declaring that agency assertions of harm and "concern
proffered . . . cannot stand" when agency itself disclosed information to target);
Ginsberg v. IRS, No. 96-2265-CIV-T-26E, 1997 WL 882913, at *3 (M.D. Fla. Dec. 23, 1997)
(reiterating that "where the documents requested are those of the [requester] rather
than the documents of a third party . . . 'it is unlikely that their disclosure could reveal
. . . anything [the requester] does not know already'" (quoting Grasso, 785 F.2d at
77)); see also Oncology Servs. Corp. v. NRC, No. 93-0939, slip op. at 17 (W.D. Pa. Feb.
7, 1994) (finding that agency may not categorically withhold transcribed interviews,
conducted in presence of requester's attorney, for these interviewed individuals who
consented to release of their own transcripts); cf. Campbell, 682 F.2d at 262
(discussing the legislative history of Exemption 7(A), and distinguishing between
records generated by the government and those "submitted to the government by
70. See Willard v. IRS, 776 F.2d 100, 103 (4th Cir. 1985) (concluding that "selectivity in
recording" those portions of interviews that agents considered relevant "would
certainly provide clues . . . of the nature and scope of the investigation"); see also
Gould, 688 F. Supp. at 704 n.37 (reiterating that "disclosure of which records were
selected by investigators from the universe of available materials for copying or
compiling would reveal the nature, scope and focus of the government's
71. See Linsteadt v. IRS, 729 F.2d 998, 1004 & n.10, 1005 (5th Cir. 1984) (stating that
release would frustrate the investigation by revealing reliance government placed
upon particular evidence and by aiding targets in tampering with evidence); see also
Grasso, 785 F.2d at 76-77 (tempering its order to release records where the "IRS had
not shown" that disclosure could interfere with the investigation by adding that, in
some circumstances, a "memorandum of the individual's own statement may be
exempt from disclosure, as, for example, when it discloses the direction of [a]
potential investigation"); cf. Alyeska Pipeline, 856 F.2d at 314 (explaining that mere
assertions that requester knows scope of investigation are not sufficient to present
genuine issue of material fact that would preclude summary judgment).
72. Swan, 96 F.3d at 500-01.
73. See Computer Prof'ls for Soc. Responsibility v. United States Secret Serv., 72
F.3d 897, 906-07 (D.C. Cir. 1996) (permitting agency on remand to apply exemptions
other than Exemption 7(A) for records of investigation which was terminated during
litigation); Dickerson, 992 F.2d at 1430 n.4 (explaining that "when exemption (7)(A)
has become inapplicable," records may still be protected under other exemptions);
Senate of P.R., 823 F.2d at 589 (finding that the "district court did not abuse its
discretion in permitting the DOJ to press additional FOIA exemptions after its
original, all-encompassing (7)(A) exemption claim became moot"); Chilivis v. SEC, 673
F.2d 1205, 1208 (11th Cir. 1982) (holding government not barred from invoking other
exemptions after reliance on Exemption 7(A) rendered untenable by conclusion of
underlying law enforcement proceeding); W. Journalism, 926 F. Supp. at 192
(explaining that once the Independent Counsel's task is completed, the documents
are "turned over to the Archivist and at that time would be subject to FOIA
[disclosure]"); Curcio v. FBI, No. 89-0941, slip op. at 4-6 (D.D.C. Mar. 24, 1995)
(permitting the agency to invoke new exemptions when Exemption 7(A) is no longer
applicable, because the agency has "made a clear showing of what the changed
circumstances are and how they justify permitting the agency to raise new claims of
exemption" and has "proffered a legitimate reason why it did not previously argue all
applicable exemptions"); cf. Miller Auto Sales, Inc. v. Casellas, No. 97-0032, slip op. at
3 (W.D. Va. Jan. 6, 1998) (remanding to give the agency an "opportunity to make a
new FOIA determination at the administrative level now that enforcement
proceedings have ended").
74. See, e.g., Robbins Tire, 437 U.S. at 223-24, 236 (explaining that applicability of
Exemption 7(A) may be made generically, based on categories); Lynch, 2000 WL
123236, at *2 (stating that specific factual showing is not necessary); Solar Sources,
142 F.3d at 1038 (reiterating that government may use generic categories); In re
Dep't of Justice, 999 F.2d at 1308 (approving use of categorical bases for
nondisclosure); Spannaus, 813 F.2d at 1288 (stating that the "Supreme Court has
rejected . . . particularized showings of interference, holding instead that the
Government may justify nondisclosure in a generic fashion"); Bevis, 801 F.2d at 1389
(explaining that the agency may take generic approach); Crooker, 789 F.2d at 67
(describing an acceptable Robbins Tire category as "functional," allowing "the court
to trace a rational link between the nature of the document and the alleged
interference"); Campbell, 682 F.2d at 265 (stating that categories are permitted); see
also Gould, 688 F. Supp. at 703-04 & n.34 (approving use of "functional test set forth in
Bevis and Crooker"); cf. Reporters Comm., 489 U.S. 776-80 (holding that FOIA
exemption determinations sometimes may be made "categorically").
75. See Franklin, No. 98-5339, slip op. at 2-3 (11th Cir. July 13, 1999) (approving
continued use of Exemption 7(A) during federal appeal of conviction and pending
state criminal trial); Solar Sources, 142 F.3d at 1035, 1037, 1040 (approving continued
use of Exemption 7(A) although case closed against certain defendants); New
England Med. Ctr. Hosp., 548 F.2d at 385-86 (approving continued use of Exemption
7(A) when "closed file records" related to pending case); Keen, No. 96-1049, slip op. at
6-8 (D.D.C. July 14, 1999) (stating that motion to redetermine sentence qualifies
records for Exemption 7(A) protection); Kansi, 11 F. Supp. 2d at 45 (approving
continued use of Exemption 7(A) while inmate's appeal of sentence is pending);
Pons, 1998 U.S. Dist. LEXIS 6084, at *14 (approving continued use of Exemption 7(A)
for certain information not used in requester's prior trials); Burke, No. 96-1739, slip op.
at 5 (D.D.C. Mar. 31, 1998) (holding that records were properly withheld in light of
plaintiff's post-conviction appeal); Cudzich, 886 F. Supp. at 106-07 (approving
continued use of Exemption 7(A) because there were "pending investigations of
other law enforcement agencies"); Kuffel, 882 F. Supp. at 1126 (ruling that Exemption
7(A) properly applies while other cases pending against defendant); Timken, 531 F.
Supp. at 199-200 (finding that Exemption 7(A) remains applicable as long as
determination still could be appealed).
76. Maydak v. United States Dep't of Justice, 218 F.3d 760, 765 (D.C. Cir. 2000).
77. See id. at 769.
78. See Computer Prof'ls, 72 F.3d at 906-07 (permitting application of exemptions
other than Exemption 7(A) when underlying circumstances changed); Senate of P.R.,
823 F.2d at 589 (approving district court's exercise of its discretion in remanding to
agency for agency "to press additional FOIA exemptions" after Exemption 7(A)'s
79. See, e.g., Dickerson, 992 F.2d at 1430 n.4 (explaining that if Exemption 7(A) has
become inapplicable, records may still be protected by other exemptions); Chilivis,
673 F.2d at 1208 (finding that government was not barred from invoking other
exemptions after reliance on Exemption 7(A) was rendered untenable by changed
circumstances); Curcio, No. 89-0941, slip op. at 4-6 (D.D.C. Mar. 24, 1995) (permitting
agency to invoke new exemptions when Exemption 7(A) became no longer
applicable); see also Bevis, 801 F.2d at 1390 (remanding to permit the agency to
"reformulate its generic categories in accordance with the Crooker requirement");
Crooker, 789 F.2d at 66-67 (explaining that the agency's affidavit did not adequately
establish applicability of Exemption 7(A), and remanding so that agency could "make
a presentation"); Campbell, 682 F.2d at 265 (finding agency affidavits insufficient;
remanding for the agency to demonstrate how release of information "would
interfere with the investigation").
80. See Maydak, 218 F.3d at 766 (disagreeing with the government's view that once
"Exemption 7(A) is inapplicable, then the government should be allowed to start
back at the beginning" -- by declaring that Exemption 7(A) is not "so unique" and
should not be "singled out for preferential treatment"); see also FOIA Post, "Supreme
Court Declines to Review Waiver Case" (posted 8/7/01) (discussing temporal nature
of Exemption 7(A)).
81. See Maydak, 218 F.3d at 765-66.
82. Id. at 767 (emphasis added); cf. Jefferson v. Dep't of Justice, 284 F.3d 172, 179
(D.C. Cir. 2002) (following Maydak and ruling that the agency may not raise
Exemption 6 for the first time on remand after ruling that the only exemption raised
by the agency did not cover all potential records within the scope of the request);
Smith v. United States Dep't of Justice, 251 F.3d 1047, 1050 (D.C. Cir. 2001) (holding --
in a situation in which the government initially relied on Exemption 3 only,
subsequently "changed its position," and then requested a remand to raise other
exemptions -- that the government "must assert all exemptions at the same time, in
the original district court proceeding" (quoting Maydak, 218 F.3d at 764)). But see
August v. FBI, 328 F.3d 697, 700-02 (D.C. Cir. 2003) (distinguishing Maydak,
harmonizing it with Senate of Puerto Rico, and necessarily cabining it in order to
remand the case "for in camera consideration of the applicability of FOIA
Exemptions 7(C), 7(D), and 7(F)" after the underlying factual basis for Exemption 7(A)
applicability ceased to exist); Summers v. United States Dep't of Justice, No. 98-1837,
slip op. at 7 (D.D.C. Apr. 13, 2004) (following August, relying on Senate of Puerto Rico,
and interpreting Maydak liberally in order to allow agency to substitute exemptions
once underlying factual circumstances changed during course of litigation).
83. Id. (citing Ryan v. Dep't of Justice, 617 F.2d 781, 792 n.38a (D.C. Cir. 1980)).
84. See, e.g., Computer Prof'ls for Soc. Responsibility, 72 F.3d at 906-07 (permitting
use of exemptions other than Exemption 7(A) when investigation was terminated
during course of FOIA litigation); Dickerson, 992 F.2d at 1430 n.4 (explaining that
when Exemption 7(A) has become inapplicable, records may be processed using
other FOIA exemptions); Senate of P.R., 823 F.2d at 589 (finding that the district court
properly permitted the Department of Justice to raise underlying FOIA exemptions
once Exemption (7)(A) ceased to apply); Chilivis, 673 F.2d at 1208 (holding
government may invoke other exemptions after Exemption 7(A) was rendered
untenable by conclusion of underlying law enforcement proceeding).
85. Accord Senate of P.R., 823 F.2d at 589 (evincing that the district court maintains
such discretion by explicitly holding "that the district court did not abuse its
discretion in permitting [the agency] to press additional FOIA exemptions after its
original, all-encompassing (7)(A) exemption claim became moot").
86. See, e.g., Ayyad v. United States Dep't of Justice, No. 00 Civ. 960, 2002 U.S. Dist.
LEXIS 6925, at *4 n.2 (S.D.N.Y. Apr. 18, 2002) (noting that agency invoked exemptions
in addition to Exemption 7(A) "because of Maydak").
87. See FOIA Post, "Supreme Court Declines to Review Waiver Case" (8/7/01)
(advising of practical implications of, and response to, Maydak upon its issuance).
88. See generally Summers, No. 98-1837 (D.D.C. Apr. 13, 2004); August, 328 F.3d 697.
89. August, 328 F.3d at 699, 701 (reiterating that courts have avoided adopting
"rigid" approach and that courts have discretion to permit government to invoke
other FOIA exemptions after underlying basis for Exemption 7(A) ceases to exist
(citing Senate of P.R., 823 F.2d at 581)); Summers, No. 98-1837, slip op. at 7 (D.D.C.
Apr. 13, 2004) (permitting the government "to assert new exemptions prior to the
district court issuing final judgment" (citing generally Senate of P.R., 823 F.2d 574)).
90. August, 328 F.3d at 700-02 (distinguishing Maydak by stressing that
government's behavior in August was more consistent with simple human error than
with "tactical maneuvering" and that therefore "remand is particularly appropriate in
this case"); Summers, No. 98-1837, slip op. at 7 (D.D.C. Apr. 13, 2004) (interpreting
Maydak as permitting government to invoke new exemptions at any time during
"district court proceedings").
91. Summers, No. 98-1837, slip op. at 7 (D.D.C. Apr. 13, 2004).
92. Maydak, 218 F.3d at 764 (citing Wash. Post v. HHS, 795 F.2d 205, 208 (D.C. Cir.
1986); Ryan, 617 F.2d at 789, 792; Holy Spirit Ass'n v. CIA, 636 F.2d 838, 846 (D.C. Cir.
1980)); see also Jefferson, 284 F.3d at 179 (finding that "Glomar response was
inappropriate" and ordering release of all "non-law enforcement records" unless
covered by FOIA exemptions invoked already, because "invocation on appeal of
Exemption 6 comes too late").
93. 328 F.3d at 700 (quoting Maydak, 218 F.3d at 767).
94. Id. at 699 (quoting Senate of P.R., 823 F.2d at 581, and by way of clarification,
harmonizing Maydak with it).
95. See generally United We Stand Am., 359 F.3d 595 (D.C. Cir. 2004); LaCedra v.
Executive Office for United States Attorneys, 317 F.3d 345 (D.C. Cir. 2003).
96. LaCedra, 317 F.3d at 348 (stating that agency's interpretation of request was
"implausible" and "erroneous").
97. Id. (explicitly rejecting plaintiff's argument that Maydak required exemption-waiver result).
98. 359 F.3d at 597 (presenting fact pattern very much akin to that of Ryan, 617 F.2d
99. Id. at 598 (quoting government's brief).
100. Compare United We Stand Am., 359 F.3d at 597, 605, with Maydak, 218 F.3d at
765 ("We have said explicitly in the past that merely stating that 'for example' an
exemption might apply is inadequate to raise a FOIA exemption." (citing Ryan, 617
F.2d at 792 n.38a)); see also Senate of P.R., 823 F.2d at 580-81 (reiterating that
"fairness to parties seeking disclosure ordinarily requires that they be accorded a full
and concentrated opportunity to challenge and test comprehensively the agency's
evidence regarding all claimed exemptions" and that the agency "'should be able to
cite all possible relevant exemptions well before the appellate stage'" (quoting
Jordan v. United States Dep't of Justice, 591 F.2d 753, 780 (D.C. Cir. 1978) (en banc)));
FOIA Post, "Supreme Court Declines to Review Waiver Case" (posted 8/7/01)
(discussing difficulty of raising all FOIA exemptions in original district court
proceedings, and stressing that "raising" means invoking exemptions in such a
manner that court can rule on applicability); accord August, 328 F.3d at 701
(permitting agency to raise additional exemptions, and harmonizing Maydak with
language in Senate of P.R. by emphasizing court's discretion).
101. Ctr. for Nat'l Sec. Studies, 331 F.3d at 925 (emphasis added); see also Ayyad,
2002 U.S. LEXIS 6925, at *13 n.6 (declining to rule on the agency's extensively invoked
underlying FOIA exemptions because the "documents are so clearly covered by
exemption 7(A), it is unnecessary to decide the applicability of these additional
claims of exemption").
102. FOIA Post, "Supreme Court Declines to Review Waiver Case" (posted 8/7/01)
(explaining contours of Maydak's "waiver rule, which threatens disclosure based
upon an agency's handling of a FOIA matter in litigation").
103. See id. (explaining that Maydak concerns an "agency's handling of a FOIA
matter in litigation only -- not at the administrative level"); FOIA Post, "Supreme Court
is Asked to Review Law Enforcement Case" (posted 5/30/01) (describing
administrative handling of matters in Maydak case); see also Ford v. West, No. 97-1342, 1998 WL 317561, at *1 (10th Cir. June 12, 1998) (adjudicating exemption not
raised at administrative level and raised for first time in litigation); Young v. CIA, 972
F.2d 536, 538 (4th Cir. 1992) (stating that "an agency does not waive FOIA exemptions
by not raising them during the administrative process"); Living Rivers, 272 F.2d at
1318 (recognizing that although "at the administrative level" the agency "did not cite
Exemption 7 . . . an agency may raise a particular exemption for the first time in the
district court"); Dubin v. Department of the Treasury, 555 F. Supp. 408, 412 (N.D. Ga.
1981) (explaining that agency did not waive FOIA exemptions in litigation by not
raising them during administrative process), aff'd, 697 F.2d 1093 (11th Cir. 1983)
(unpublished table decision).
104. See Tellier v. Executive Office for United States Attorneys, No. 96-5323, 1997 WL
362497, at *1 (D.C. Cir. May 15, 1997) (per curiam) (finding a law enforcement
proceeding pending at the time of the request; affirming the withholding of the
documents because "'[t]o require an agency to adjust or modify its FOIA responses
on post-response occurrences could create an endless cycle of . . . reprocessing'"
(quoting Bonner v. United States Dep't of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991)));
Goodman, 2001 U.S. Dist. LEXIS 22748, at *9 ("The determination as to whether a
release of records could reasonably be expected to interfere with enforcement
proceedings is to be made as of the time the agency decided to withhold the
documents." (citing Bonner, 928 F.2d at 1152)); Gomez v. United States Attorney, No.
93-2530, 1996 U.S. Dist. LEXIS 6439, at *2 (D.D.C. May 13, 1996) (reasoning that
Exemption 7(A) is claimed properly as of the receipt of the request and that when
circumstances change, a plaintiff is "free to file a new FOIA request"), appeal
dismissed voluntarily, No. 96-5185 (D.C. Cir. May 12, 1997); Lynch, 2000 WL 123236, at
*3 (stating that judicial review is to be made as of time agency decided to withhold
documents); Keen, No. 96-1049, slip op. at 6-7 (D.D.C. July 14, 1999) (maintaining that
court review is limited to time at which agency made its exemption determination);
Local 32B-32J, Serv. Employees Int'l Union v. GSA, No. 97-8509, 1998 WL 726000, at *8
(S.D.N.Y. Oct. 15, 1998) (stating that judicial review of agency's decision must be
made in light of status of enforcement proceedings at time at which agency
105. 5 U.S.C. Â§ 552(c)(1).
106. Pub. L. No. 99-570, Â§ 1802, 100 Stat. at 3207-49.
107. See Attorney General's 1986 Amendments Memorandum at 18-22.
Go to: Table of Contents