FOIA Guide, 2004 Edition: Exemption 7(B)

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Freedom of Information Act Guide, May 2004


Exemption 7(B)

Exemption 7(B) of the FOIA, which is aimed at preventing prejudicial pretrial

publicity that could impair a court proceeding, protects "records or information

compiled for law enforcement purposes [the disclosure of which] would deprive a

person of a right to a fair trial or an impartial adjudication." (1) Despite the possible

constitutional significance of its function, in practice this exemption is not often

invoked -- for example, it was used no more than about one hundred times by all

federal departments and agencies during Fiscal Year 2003. (2) In the situation in which

it would most logically be employed -- i.e., an ongoing law enforcement proceeding -- an agency's application of Exemption 7(A) to protect its institutional law

enforcement interests invariably would serve to protect the interests of the

defendants to the prosecution as well. Even in the non-law enforcement realm, the

circumstances that call for singular reliance upon Exemption 7(B) occur only rarely.

Consequently, Exemption 7(B) has been featured prominently in only one

FOIA case to date, Washington Post Co. v. United States Department of Justice. (3) At

issue there was whether public disclosure of a pharmaceutical company's internal

self-evaluative report, submitted to the Justice Department in connection with a

grand jury investigation, would jeopardize the company's ability to receive a fair and

impartial civil adjudication of several personal injury cases pending against it. (4) In

remanding the case for further consideration, the Court of Appeals for the District of

Columbia Circuit articulated a two-part standard to be employed in determining

Exemption 7(B)'s applicability: "(1) that a trial or adjudication is pending or truly

imminent; and (2) that it is more probable than not that disclosure of the material

sought would seriously interfere with the fairness of those proceedings." (5) Although

the D.C. Circuit in Washington Post offered a single example of proper Exemption

7(B) applicability -- i.e., when "disclosure through FOIA would furnish access to a

document not available under the discovery rules and thus would confer an unfair

advantage on one of the parties" -- it did not limit the scope of the exemption to

privileged documents only. (6)

    1. 5 U.S.C. § 552(b)(7)(B) (2000).

    2. See Governmentwide Compilation of All Departments' and Agencies' "Annual

    FOIA Reports, FY 03," at http://www.usdoj.gov/oip/fy03.html.

    3. 863 F.2d 96, 101-02 (D.C. Cir. 1988); see also Alexander & Alexander Servs. v. SEC,

    No. 92-1112, 1993 WL 439799, at **10-11 (D.D.C. Oct. 19, 1993) (citing Washington Post

    to find that company "failed to meet its burden of showing how release of particular

    documents would deprive it of the right to a fair trial") ("reverse" FOIA suit), appeal

    dismissed, No. 93-5398 (D.C. Cir. Jan. 4, 1996).

    4. Wash. Post, 863 F.2d at 99; see also Palmer Communications v. United States

    Dep't of Justice, No. 96-M-777, slip op. at 4 (D. Colo. Oct. 30, 1996) ("[T]he unavoidable

    conclusion is that granting the requested relief would harm this court's ability to

    control the use of discovery materials in the criminal case. That is an unacceptable

    interference with a law enforcement proceeding as defined by Exemption 7(A).

    Moreover, disclosure of the material sought under these circumstances would

    seriously interfere with the fairness of the procedures as defined by Exemption

    7(B).").

    5. 863 F.2d at 102; cf. Dow Jones Co. v. FERC, 219 F.R.D. 167, 175 (C.D. Cal. 2002)

    (finding that there is "no evidence that any trial or adjudication" is pending and that

    the agency has not demonstrated that release "would generate pretrial publicity

    that could deprive the companies or any of their employees of their right to a fair

    trial," and accordingly ruling that the exemption did not apply).

    6. Wash. Post, 863 F.2d at 102.

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