FOIA Guide, 2004 Edition: Exemption 7(E)

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Freedom of Information Act Guide, May 2004


Exemption 7(E)

Exemption 7(E) affords protection to all law enforcement information that
"would disclose techniques and procedures for law enforcement investigations or
prosecutions, or would disclose guidelines for law enforcement investigations or
prosecutions if such disclosure could reasonably be expected to risk circumvention
of the law." (1) It is worth noting at the outset that homeland security-related
information, insofar as it meets the law enforcement threshold requirement for all of
Exemption 7, (2) qualifies for protection under Exemption 7(E) as highly sensitive
information to be shielded from disclosure if it also satisfies one of the two distinct
protective clauses that constitute this exemption. (3)

The first clause of Exemption 7(E) permits the withholding of "records or
information compiled for law enforcement purposes . . . [that] would disclose
techniques and procedures for law enforcement investigations or prosecutions." (4)
This clause is phrased in such a way so as to not require a showing of any particular
determination of harm -- or risk of circumvention of law -- that would be caused by
disclosure of the records or information within its coverage. (5) Rather, it is designed
to provide "categorical" protection of the information so described. (6)

Notwithstanding the broad scope of Exemption 7(E)'s protection, in order for
the exemption to apply, the technique or procedure at issue ordinarily must not be
well known to the public. (7) Accordingly, techniques such as "wiretapping," (8) "mail
covers" and the "use of post office boxes," (9) "'security flashes' or the tagging of
fingerprints," (10) pretext telephone calls, (11) and "planting transponders on aircraft
suspected of smuggling" (12) have been denied protection under Exemption 7(E) when
courts have found them to be generally known to the public.

In some cases, however, even commonly known procedures have been
protected from disclosure when "'the circumstances of their usefulness . . . may not
be widely known,'" (13) or "their use in concert with other elements of an investigation
and in their totality directed toward a specific investigative goal constitute a
'technique' which merits protection." (14) Increasingly, moreover, courts have endorsed
the withholding of a wide variety of commonly known procedures -- for example,
polygraph examinations, (15) undercover operations, (16) and surveillance techniques (17) --
on the basis that disclosure of their details could reduce or even nullify their
effectiveness. (18)

More recent case law continues a trend apparent in older cases (19) of allowing
agencies to describe the general nature of the technique while withholding the full
details. (20) Often, however, it is not possible to describe secret law enforcement
techniques, even in general terms, without disclosing the very information sought to
be withheld. (21) A court's in camera review of the documents at issue may be required
to demonstrate the propriety of nondisclosure in such cases. (22)

Prior to the enactment of the Freedom of Information Reform Act of 1986, (23)
Exemption 7(E) protected law enforcement techniques and procedures only when
they could be regarded as "investigatory" or "investigative" in character, (24) but this
limitation was removed by those FOIA amendments. Exemption 7(E), as amended
in 1986, simply covers "techniques and procedures for law enforcement
investigations or prosecutions." (25) As such, it authorizes the withholding of
information consisting of, or reflecting, a law enforcement "technique" or a law
enforcement "procedure," wherever it is used "for law enforcement investigations or
prosecutions" generally. (26) Law enforcement manuals, including those that pertain to
the "prosecutions" stage of the law enforcement process, accordingly meet the
requirements for withholding under Exemption 7(E) to the extent that they consist
of, or reflect, law enforcement techniques and procedures that are confidential and
must remain so in order to preserve their effectiveness. (27)

The second clause of Exemption 7(E) protects "guidelines for law enforcement
investigations or prosecutions if [their] disclosure could reasonably be expected to
risk circumvention of the law." (28) As such, it has a distinct harm standard built into it -- not unlike the "anti-circumvention," "high 2" aspect of Exemption 2. (29) (See the
discussion under Exemption 2, "High 2": Risk of Circumvention, above.) This distinct
protection is intended to ensure proper protection for the type of law enforcement
guideline information found ineligible to be withheld in the en banc decision of the
Court of Appeals for the District of Columbia Circuit in Jordan v. Department of
Justice
, (30) a case involving guidelines for prosecutions. It reflects a dual concern with
the need to remove any lingering effect of that decision, while at the same time
ensuring that agencies do not unnecessarily maintain "secret law" establishing
standards that are used to regulate societal behavior. (31)

This clause of Exemption 7(E) therefore is available to protect any "law
enforcement guideline" information of the type involved in Jordan, whether it
pertains to the prosecution or basic investigative stage of a law enforcement matter,
whenever it is determined (32) that its disclosure "could reasonably be expected to risk
circumvention of the law." (33) In choosing this particular harm formulation, Congress
employed the more relaxed harm standard now used widely throughout Exemption
7, and it obviously "was guided by the 'circumvention of the law' standard that the
D.C. Circuit established in its en banc decision" (34) in Crooker v. ATF. (35)

Accordingly, in applying this second clause of Exemption 7(E) to law
enforcement manuals, agencies should focus on the portions of those guidelines that
correlate to particular harm to law enforcement efforts (36) and at the same time
should make every effort to meet their obligations to disclose all reasonably
segregable, nonexempt information. (37) (See the further discussions of this point
under Procedural Requirements, "Reasonably Segregable" Obligation, above, and
Litigation Considerations, "Reasonably Segregable" Requirements, below.)

Additionally, in the current post-September 11, 2001 environment, law
enforcement information that might be covered by the provisions of Exemption 7(E)
should be viewed in light of its potential for causing harm -- or risking danger -- to
individuals or to the public collectively. (38) Thus, information such as emergency
action plans, (39) guidelines for response to terrorist attacks, (40) and analyses of security
procedures (41) may well be protected from disclosure under more than one FOIA
exemption. (42) (See the discussions of this point under Exemption 2, above, and
Exemption 7(F), below.) It is vitally important in all instances to conduct a careful
review of any information of homeland security sensitivity in order to evaluate any
likelihood of disclosure harm, either in the form of potential danger to a person or
persons or as a consequence of circumvention of law or regulation. (43)

In sum, law enforcement agencies -- including the wide range of agencies that
discharge homeland security-related responsibilities (44) -- may avail themselves of the
distinct protections provided in Exemption 7(E)'s two clauses. (45) Their
"noninvestigatory" law enforcement records, to the extent that they can be regarded
as reflecting techniques or procedures, are entitled to categorical protection under
Exemption 7(E)'s first clause. (46) In addition, law enforcement guidelines that satisfy
the broad "could reasonably be expected to risk circumvention of law" standard can
be protected under Exemption 7(E)'s second clause. (47) (See the discussion of
Exemption 2's overlapping "anti-circumvention" protection under Exemption 2, "High
2": Risk of Circumvention, above.)

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

    2. See, e.g., Living Rivers, Inc. v. United
    States Bureau of Reclamation
    , 272 F. Supp. 2d 1313, 1318 (D. Utah 2003)
    (determining that agency's use of flood maps to develop emergency action
    plans for homeland security purposes readily met "compiled for law enforcement
    purpose" requirement); see also, e.g., Coastal Delivery Corp.
    v. United States Customs Serv.
    , 272 F. Supp. 2d 958, 964-65 (C.D. Cal.
    2003) (readily acknowledging Customs Service's law enforcement purpose),
    reconsideration denied, No. 02-3838, 2002 WL 21507775 (C.D. Cal.
    June 13, 2003), appeal dismissed voluntarily, No. 03-55833 (9th Cir.
    Aug. 26, 2003).

    3. See, e.g., Ctr. for Nat'l Sec. Studies
    v. INS
    , No. 87-2068, slip op. at 14 (D.D.C. Dec. 19, 1990) (upholding
    agency decision to protect final contingency plan in event of attack on
    United States, as one of several documents that agency withheld that "relate
    directly to . . . agency's law enforcement duties"); see also FOIA
    Post
    , "FOIA Officers Conference Held on Homeland Security" (posted
    7/3/03) (summarizing recent authority for protecting homeland security-related
    information).

    4. 5 U.S.C. § 552(b)(7)(E).

    5. See, e.g., Coleman v. FBI, No. 89-2773,
    slip op. at 25 (D.D.C. Dec. 10, 1991), summary affirmance granted,
    No. 92-5040, 1992 WL 373976 (D.C. Cir. Dec. 4, 1992); see also Burke
    v. United States Dep't of Justice
    , No. 96-1739, 1999 WL 1032814, at
    *8 (D.D.C. Sept. 30, 1999) (noting that Exemption 7(E) "does not require
    the FBI to show that disclosure of [FBI Form FD-515] ratings [of effectiveness
    of investigative techniques] would cause any particular harm"). But see
    Davin v. United States Dep't of Justice, 60 F.3d 1043, 1064 (3d Cir.
    1995) (requiring in an aberrational decision, that an agency submit "evidence
    that specific documents it has withheld contain secret information about
    techniques for recruiting informants [the disclosure of which] would risk
    circumvention of the law").

    6. See Attorney General's Memorandum on the
    1986 Amendments to the Freedom of Information Act
    16 n.27 (Dec. 1987)
    [hereinafter Attorney General's 1986 Amendments Memorandum]; see,
    e.g.
    , Summers v. United States Dep't of Justice, No. 87-3168,
    slip op. at 11, 12, 15 (D.D.C. Apr. 19, 2000) (finding technical information
    about FBI's telephone surveillance to be protected by Exemption 7(E), in
    language implying categorical protection), on remand from 140 F.3d
    1077 (D.C. Cir. 1998); Rivera v. FBI, No. 98-0649, slip op. at 9-10
    (D.D.C. Aug. 31, 1999) (upholding categorical protection for bank security
    measures); ACLU Found. v. United States Dep't of Justice, 833 F.
    Supp. 399, 407 (S.D.N.Y. 1993) (The first clause of Exemption 7(E) does
    not "necessarily require an individualized showing for each document.");
    Fisher v. United States Dep't of Justice, 772 F. Supp. 7, 12 n.9
    (D.D.C. 1991) (explicitly recognizing categorical protection for law enforcement
    techniques and procedures), aff'd, 968 F.2d 92 (D.C. Cir. 1992) (unpublished
    table decision); see also FOIA Update, Vol. XV, No. 2, at
    3 (distinguishing between Exemption 7(E)'s two clauses).

    7. See Attorney General's 1986 Amendments
    Memorandum
    at 16 n.27 (citing S. Rep. No. 98-221, at 25 (1983) (citing,
    in turn, H.R. Rep. No. 93-180, at 12 (1974), reprinted in 1974 U.S.C.C.A.N.
    6267)); see also Campbell v. United States Dep't of Justice,
    No. 89-3016, slip op. at 6 (D.D.C. Aug. 6, 1997) (declaring that Exemption
    7(E) applies to "obscure or secret techniques"), rev'd & remanded
    on other grounds
    , 164 F.3d 20 (D.C. Cir. 1998); Albuquerque Publ'g
    Co. v. United States Dep't of Justice
    , 726 F. Supp. 851, 858 (D. Ariz.
    1989) (stating that agencies "should avoid burdening the Court with techniques
    commonly described in movies, popular novels, stories or magazines or television");
    cf. Don Ray Drive-A-Way Co. v. Skinner, 785 F. Supp. 198,
    200 (D.D.C. 1992) (finding that computer algorithm used by Department of
    Transportation to determine safety rating of motor carriers "does not simply
    involve investigative techniques or procedures" because "it has same status
    as regulations or agency law" and "is regularly followed in all ratings").

    8. Pub. Employees for Envtl. Responsibility v. EPA,
    978 F. Supp. 955, 963 (D. Colo. 1997), appeal dismissed voluntarily,
    No. 97-1384 (10th Cir. Nov. 25, 1997).

    9. Dunaway v. Webster, 519 F. Supp. 1059, 1082-83
    (N.D. Cal. 1981).

    10. Ferguson v. Kelley, 448 F. Supp. 919, 926
    (N.D. Ill. 1977), reconsideration denied in pertinent part, 455 F.
    Supp. 324 (N.D. Ill. 1978) (reiterating that methods used that are generally
    well known to the public do not warrant Exemption 7(E) protection).

    11. Rosenfeld v. United States Dep't of Justice,
    57 F.3d 803, 815 (9th Cir. 1995); see also Struth v. FBI,
    673 F. Supp. 949, 970 (E.D. Wis. 1987) (dismissing pretext as merely "garden
    variety ruse or misrepresentation"). But see Nolan v. United States
    Dep't of Justice
    , No. 89-A-2035, 1991 WL 36547, at *8 (D. Colo. Mar.
    18, 1991) (concluding that disclosure of information surrounding pretext
    phone call may harm ongoing investigations), aff'd on other grounds,
    973 F.2d 843 (10th Cir. 1992).

    12. Hamilton v. Weise, No. 95-1161, 1997 U.S.
    Dist. LEXIS 18900, at *30 (M.D. Fla. Oct. 1, 1997).

    13. Wickline v. FBI, No. 92-1189, 1994 WL 549756,
    at *5 (D.D.C. Sept. 30, 1994) (quoting Parker v. United States Dep't
    of Justice
    , No. 88-0760, slip op. at 8 (D.D.C. Feb. 28, 1990), aff'd
    in pertinent part
    , No. 90-5070 (D.C. Cir. June 28, 1990)); see, e.g.,
    Coleman v. FBI, 13 F. Supp. 2d 75, 83 (D.D.C. 1998) (protecting "manner
    and circumstances," but not the identities, of various techniques that are
    "generally known to the public"); Del Viscovo v. FBI, 903 F. Supp.
    1, 3 (D.D.C. 1995) (declaring withholding of FBI accomplishment report (containing
    information on use and effectiveness of investigative techniques) to be
    "well established" and "proper"), summary affirmance granted, No.
    95-5388 (D.C. Cir. Jan. 24, 1997); Buffalo Evening News, Inc. v. United
    States Border Patrol
    , 791 F. Supp. 386, 392 n.5, 393 n.6 (W.D.N.Y. 1992)
    (finding that Exemption 7(E) protects fact of whether alien's name is listed
    in INS Lookout Book); Wagner v. FBI, No. 90-1314, 1991 U.S. Dist.
    LEXIS 7506, at *7 (D.D.C. June 4, 1991) (holding that exemption protects
    detailed surveillance and undercover investigative methods and techniques),
    summary affirmance granted, No. 91-5220 (D.C. Cir. Aug. 3, 1992);
    see also Biase v. Office of Thrift Supervision, No. 93-2521,
    slip op. at 12 (D.N.J. Dec. 16, 1993) (upholding protection of "investigative
    techniques and procedures that are either not commonly known to the public,
    or if publicly known, their disclosure could lessen their effectiveness").
    But see Goldstein v. Office of Indep. Counsel, No. 87-2028,
    1998 WL 570862, at *14 (D.D.C. July 29, 1998) (finding that portions of
    two documents were improperly withheld, because they did not contain "a
    secret or an exceptional investigative technique," nor would their disclosure
    risk circumvention of law, and treating the age of the documents (ten and
    sixteen years old) as a significant factor); Campbell, No. 89-3016,
    slip op. at 7 (D.D.C. Aug. 6, 1997) (refusing to approve nondisclosure of
    particular circumstances surrounding use of "basic" techniques).

    14. PHE, Inc. v. United States Dep't
    of Justice
    , No. 90-1461, slip op. at 7 (D.D.C. Jan. 31, 1991), aff'd
    in pertinent part, rev'd in part & remanded
    , 983 F.2d 248 (D.C.
    Cir. 1993); see, e.g., Shores v. FBI, 185 F. Supp. 2d 77,
    84 (D.D.C. 2002) (protecting details of surveillance operations at federal
    prison, including information about telephone system); Hassan v. FBI,
    No. 91-2189, 1992 U.S. Dist. LEXIS 22655, at *12 (D.D.C. July 13, 1992)
    (protecting common techniques used with uncommon technique to achieve unique
    investigative goal), summary affirmance granted, No. 92-5318 (D.C.
    Cir. Mar. 17, 1993); Beck v. United States Dep't of the Treasury,
    No. 88-493, slip op. at 26 (D.D.C. Nov. 8, 1989) (approving nondisclosure
    of certain documents, including map, because disclosure would reveal surveillance
    technique used by Customs Service, as well as why certain individuals were
    contacted with regard to investigations), aff'd, 946 F.2d 1563 (D.C.
    Cir. 1992) (unpublished table decision).

    15. See, e.g., Hale v. United States Dep't
    of Justice
    , 973 F.2d 894, 902-03 (10th Cir. 1992) (concluding that disclosure
    of "polygraph matters" could lessen effectiveness), cert. granted, vacated
    & remanded on other grounds
    , 509 U.S. 918 (1993); Piper v. United
    States Dep't of Justice
    , 294 F. Supp. 2d 16, 30 (D.D.C. 2003) (declaring
    that polygraph materials were properly withheld because their release would
    reveal sensitive "logistical considerations"), reconsideration denied,
    No. 98-1161, 2004 U.S. Dist. LEXIS 5624 (D.D.C. Mar. 26, 2004); Edmonds
    v. FBI
    , 272 F. Supp. 2d 35, 56 (D.D.C. 2003) (deciding that the FBI's
    declaration "convincingly describes how the release of this information
    might create a risk of circumvention of the law"); Shores, 185 F.
    Supp. 2d at 85 (determining that FBI properly withheld polygraph information
    to preserve effectiveness of polygraph examinations); Blanton v. United
    States Dep't of Justice
    , 63 F. Supp. 2d 35, 49-50 (D.D.C. 1999) (finding
    that disclosing certain polygraph information -- e.g., "sequence of questions"
    -- would allow individuals to employ countermeasures), aff'd, 64
    Fed. Appx. 787 (D.C. Cir. 2003); Coleman, 13 F. Supp. 2d at 83 (holding
    that disclosure of behavioral science analysis and details of polygraph
    examination would frustrate enforcement of law); Perrone v. FBI,
    908 F. Supp. 24, 28 (D.D.C. 1995) (finding that release of precise polygraph
    questions and their sequence would allow circumvention of examination).

    16. See, e.g., LaRouche v. United States
    Dep't of Justice
    , No. 90-2753, slip op. at 21 (D.D.C. Nov. 17, 2000)
    (rejecting plaintiff's argument that information regarding techniques for
    undercover work must be released, because even "widely known techniques"
    are entitled to protection when their disclosure would negatively impact
    future investigations); Rosenberg v. Freeh, No. 97-0476, slip op.
    at 17 (D.D.C. May 13, 1998) (protecting "information on the use of false
    identities for undercover special agents," because disclosure "could significantly
    reduce [the] future effectiveness of this investigative technique"), aff'd,
    No. 99-5209, 1999 WL 1215961 (D.C. Cir. Nov. 12, 1999).

    17. See, e.g., Burke v. DEA, No. 96-1739,
    slip op. at 9 (D.D.C. Mar. 30, 1998) (upholding Postal Service's refusal
    to disclose detailed description of surveillance techniques); Steinberg
    v. United States Dep't of Justice
    , No. 93-2409, slip op. at 15-16 (D.D.C.
    July 14, 1997) (approving nondisclosure of precise details of telephone
    and travel surveillance despite fact that criminals know that such techniques
    are used generally); Butler v. Dep't of the Treasury, No. 95-1931,
    1997 WL 138720, at *4 (D.D.C. Jan. 14, 1997) (reasoning that disclosing
    methods of monitoring and type of equipment used could enable future targets
    to avoid surveillance).

    18. See, e.g., Hale, 973 F.2d at 902-03
    (concluding that disclosure of use of security devices and their modus operandi
    could lessen their effectiveness); Bowen v. FDA, 925 F.2d 1225, 1228
    (9th Cir. 1991) (deciding that release of specifics of cyanide-tracing techniques
    would present serious threat to future product-tampering investigations);
    Piper, 294 F. Supp. 2d at 31 (finding that FBI's invocation of Exemption
    7(E) was proper in order to protect utility of sensitive electronic monitoring
    devices not widely known to public); Sinito v. United States Dep't of
    Justice
    , No. 87-0814, slip op. at 27-29 (D.D.C. July 12, 2000) (holding
    that disclosure of information about "electronic recording device" (a body
    microphone) "would impair FBI's ability to conduct future investigations"),
    summary affirmance granted, No. 00-5321 (D.C. Cir. Apr. 11, 2001);
    Burke, No. 96-1739, 1999 WL 1032814, at *8 (D.D.C. Sept. 30, 1999)
    (finding FBI redaction of Form FD-515 ratings to be necessary to prevent
    criminals from developing countermeasures against FBI techniques); Peralta
    v. United States Attorney's Office
    , 69 F. Supp. 2d 21, 35 (D.D.C. 1999)
    (upholding redaction of FBI Forms FD-515, as well as information that would
    identify radio channels used during surveillance and transmitter numbers
    used to monitor conversations, in order "to prevent potential harm to future
    law enforcement activities"); Pons v. United States Customs Serv.,
    No. 93-2094, 1998 U.S. Dist. LEXIS 6084, at *18 (D.D.C. Apr. 23, 1998) (protecting
    "cooperative arrangements between Customs and other law enforcement agencies"
    to keep them effective); Code v. FBI, No. 95-1892, 1997 WL 150070,
    at *8 (D.D.C. Mar. 26, 1997) (recognizing that disclosure of criminal personality
    profiles could assist criminals in evading detection); Pray v. Dep't
    of Justice
    , 902 F. Supp. 1, 4 (D.D.C. 1995) (concluding that release
    of information about particular investigative techniques and their effectiveness
    in FBI accomplishment report could enable criminals to employ countermeasures
    to neutralize their effectiveness), summary affirmance granted in pertinent
    part
    , 1996 WL 734142 (D.C. Cir. Nov. 20, 1996); Fisher, 772 F.
    Supp. at 12 (finding that disclosure could alert subjects of investigation
    about FBI techniques); see also FOIA Update, Vol. V, No. 2,
    at 5 (discussing scope of Exemption 7(E) protection as encompassing "obscure
    or secret techniques"); cf. Billington v. United States Dep't
    of Justice
    , 69 F. Supp. 2d 128, 140 (D.D.C. 1999) (granting summary
    judgment to FBI where "plaintiff . . . offer[ed] no more than an unsubstantiated
    guess that a 'photo album' or common technique [was] withheld"), aff'd
    in pertinent part & remanded
    , 233 F.3d 581 (D.C. Cir. 2000). But
    cf.
    Linn v. United States Dep't of Justice, No. 92-1406, 1995
    WL 417810, at *26 (D.D.C. June 5, 1995) (rejecting invocation of Exemption
    7(E) because no justification was provided to show how release of commonly
    known technique could interfere with future law enforcement efforts).

    19. See, e.g., Cohen v. Smith, No. 81-5365,
    slip op. at 8 (9th Cir. Mar. 25, 1983) (protecting details of telephone
    interviews); Laroque v. United States Dep't of Justice, No. 86-2677,
    1988 WL 75942, at *3 (D.D.C. July 12, 1988) (protecting "reason codes" and
    "source codes" in State Department "lookout notices"); U.S. News &
    World Report v. Dep't of the Treasury
    , No. 84-2303, 1986 U.S. Dist.
    LEXIS 27634, at *8 (D.D.C. Mar. 26, 1986) (protecting Secret Service's contract
    specifications for President's armored limousine); Windels, Marx, Davies
    & Ives v. Dep't of Commerce
    , 576 F. Supp. 405, 413-14 (D.D.C. 1983)
    (alternative holding) (shielding computer program used to detect antidumping
    law violations); Hayward v. United States Dep't of Justice, 2 Gov't
    Disclosure Serv. (P-H) ¶ 81,231, at 81,646 (D.D.C. July 14, 1981) (protecting
    methods and techniques used by U.S. Marshals Service to relocate protected
    witnesses); Malloy v. United States Dep't of Justice, 457 F. Supp.
    543, 545 (D.D.C. 1978) (protecting details concerning "bait money" and "bank
    security devices"); Ott v. Levi, 419 F. Supp. 750, 752 (E.D. Mo.
    1976) (protecting laboratory techniques used in arson investigation).

    20. See, e.g., Bowen, 925 F.2d at 1228
    (ruling that release of specifics of cyanide-tracing techniques would present
    serious threat to future product-tampering investigations); Judicial
    Watch, Inc. v. FBI
    , No. 00-745, slip op. at 15-17 (D.D.C. Apr. 20, 2001)
    (protecting the "identities of two types of [FBI] records concerning prison
    inmates," the release of which would enable inmates "to alter their activities[,]
    thus hindering the effectiveness of this technique"); Peyton v. Reno,
    No. 98-1457, 2000 U.S. Dist. LEXIS 873, at *3 (D.D.C. Jan. 6, 2000) (protecting
    Discriminant Function Scores used to select tax returns for evaluation);
    Klunzinger v. IRS, 27 F. Supp. 2d 1015, 1027-28 (W.D. Mich. 1998)
    (upholding protection of documents which, if disclosed, would "reveal confidential
    information regarding when the IRS would undertake compliance activity");
    Becker v. IRS, No. 91-C-1203, 1992 WL 67849, at *6 (N.D. Ill. Mar.
    27, 1992) (protecting techniques used by IRS to identify and investigate
    tax protestors), aff'd, 34 F.3d 398 (7th Cir. 1994).

    21. See, e.g., McQueen v. United States,
    264 F. Supp. 2d 502, 521 (S.D. Tex. 2003) (finding that requested documents
    show "details [that], by themselves, would reveal law enforcement techniques"
    and thus were properly withheld) (appeal pending); Butler, 1997 WL
    138720, at *4 (observing that "[i]t is sometimes impossible" to describe
    secret law enforcement techniques without disclosing information sought
    to be withheld); Soto v. DEA, No. 90-1816, slip op. at 7 (D.D.C.
    Apr. 13, 1992) (concluding that detailed description of technique pertaining
    to detection of drug traffickers would effectively disclose it); cf.
    Prescott v. Dep't of Justice, No. 00-187, slip op. at 5, 11 (D.D.C.
    Aug. 10, 2001) (upholding the redaction of FBI Form FD-515 because the FBI
    specified the potential harm in release, while rejecting another agency's
    invocation of Exemption 7(E) to withhold other "'information regarding investigative
    techniques and procedures'" (quoting agency's declaration) because the other
    agency "merely reiterated the statutory language").

    22. See, e.g., Jones v. FBI, 41 F.3d
    238, 249 (6th Cir. 1994) (concluding, upon in camera review, that investigative
    techniques were properly withheld); Palacio v. United States Dep't of
    Justice
    , No. 00-1564, 2002 U.S. Dist. LEXIS 2198, at *29 (D.D.C. Feb.
    11, 2002) (ordering FBI to submit for in camera review either documents
    at issue or detailed declaration), summary affirmance granted on other
    grounds
    , No. 02-5247, 2003 U.S. App. LEXIS 1804 (D.C. Cir. Jan. 31,
    2003); Allnutt v. Dep't of Justice, No. 98-901, 2000 WL 852455, at
    *2 (D. Md. Oct. 23, 2000) (finding, upon in camera review, that computer
    command codes used to access federal databases were properly deleted), aff'd
    sub nom.
    Allnutt v. Handler, 8 Fed. Appx. 225 (4th Cir. 2001);
    Pub. Employees for Envtl. Responsibility, 978 F. Supp. at 961 (concluding,
    upon in camera review, that certain documents must be released while others
    may be withheld); Campbell v. United States Dep't of Justice, No.
    89-3016, 1996 WL 554511, at *10 (D.D.C. Sept. 19, 1996) (directing in camera
    submission of technique information at issue); Linn v. United States
    Dep't of Justice
    , No. 92-1406, 1997 WL 577586, at *4 (D.D.C. May 29,
    1997) (determining that in camera inspection was necessary because DEA had
    not provided specific, nonconclusory explanation to justify withholding
    of material it identified as law enforcement technique); Rojem v. United
    States Dep't of Justice
    , 775 F. Supp. 6, 12 (D.D.C. 1991) (ordering
    in camera inspection), subsequent decision, No. 90-3021 (D.D.C. Oct.
    31, 1991) (upholding Exemption 7(E) upon in camera inspection), appeal
    dismissed for failure to timely file
    , No. 92-5088 (D.C. Cir. Nov. 4,
    1992); cf. Smith v. ATF, 997 F. Supp. 496, 501 (D.D.C. 1997)
    (requiring an in camera declaration to address "why the release of the information
    deleted . . . would compromise law enforcement").

    23. Pub. L. No. 99-570, § 1802, 100 Stat. 3207, 3207-48,
    3207-49.

    24. Pub. L. No. 93-502, 88 Stat. 1561, 1563 (1974).

    25. 5 U.S.C. § 552(b)(7)(E).

    26. Id.; see Attorney General's 1986
    Amendments Memorandum
    at 15; see also Nowak v. IRS, No.
    98-56656, 2000 WL 60067, at **1-2 (9th Cir. 2000) (unpublished table decision)
    (affirming the district court's conclusion "that the redacted information,
    if disclosed, 'would significantly hamper the defendant's tax collection
    and law enforcement functions, and facilitate taxpayer circumvention of
    federal Internal Revenue laws'"); Tran v. United States Dep't of Justice,
    No. 01-0238, 2001 WL 1692570, at *3 (D.D.C. Nov. 20, 2001) (concluding that
    INS form -- used when agencies share information from immigration records
    -- was properly withheld because it would reveal law enforcement techniques);
    Unger v. Dist. Disclosure Office IRS, No. 99-698, 2000 U.S. Dist.
    LEXIS 5260, at *5 (N.D. Ohio Mar. 28, 2000) (finding that IRS properly withheld
    references to "specific dollar tolerance" used as "threshold in determining
    whether to prosecute"); Guerrero v. DEA, No. 93-2006, slip op. at
    14-15 (D. Ariz. Feb. 22, 1996) (holding that Exemption 7(E) properly protects
    portions of DEA Agents Manual concerning undercover operations, confidential
    informant codes, surveillance devices, and enforcement and security procedures);
    Hammes v. United States Customs Serv., No. 94 Civ. 4868, 1994 WL
    693717, at *1 (S.D.N.Y. Dec. 9, 1994) (protecting Customs Service criteria
    used to determine which passengers to stop and examine). But see
    Feshbach v. SEC, 5 F. Supp. 2d 774, 786 & n.11 (N.D. Cal. 1997)
    (finding the SEC's reasons for withholding checklists and internal database
    to be conclusory and insufficient); Cowsen-El v. United States Dep't
    of Justice
    , 826 F. Supp. 532, 533-34 (D.D.C. 1992) (finding Bureau of
    Prisons program statement to be internal policy document wholly unrelated
    to investigations or prosecutions).

    27. See Attorney General's 1986 Amendments
    Memorandum
    at 16; accord Attorney General's Memorandum for Heads
    of All Federal Departments and Agencies Regarding the Freedom of Information
    Act (Oct. 12, 2001) [hereinafter Attorney General Ashcroft's FOIA Memorandum],
    reprinted in FOIA Post (posted 10/15/01) (emphasizing the
    fundamental societal value of "enhancing the effectiveness of our law enforcement
    agencies"); see, e.g., Guerrero, No. 93-2006, slip op. at
    14-15 (D. Ariz. Feb. 22, 1996) (approving nondisclosure of portions of DEA
    Agents Manual); Church of Scientology Int'l v. IRS, 845 F. Supp.
    714, 723 (C.D. Cal. 1993) (concluding that parts of IRS Law Enforcement
    Manual concerning "procedures for handling applications for tax exemption
    and examinations of Scientology entities" and memorandum regarding application
    of such procedures were properly withheld); Williston Basin Interstate
    Pipeline Co. v. FERC
    , No. 88-592, 1989 WL 44655, at *2 (D.D.C. Apr.
    17, 1989) (finding portions of regulatory audit describing significance
    of each page in audit report, investigatory technique utilized, and auditor's
    conclusions to constitute "the functional equivalent of a manual of investigative
    techniques").

    28. 5 U.S.C. § 552(b)(7)(E).

    29. See, e.g., Schwarz v. United States
    Dep't of Treasury
    , 131 F. Supp. 2d 142, 150 (D.D.C. 2000) (finding Secret
    Service information evaluating personal characteristics and threat potential
    of individuals to be "clearly exempt from disclosure" under both Exemptions
    2 and 7(E)), summary affirmance granted, No. 00-5453 (D.C. Cir. May
    10, 2001); see also Berg v. Commodity Futures Trading Comm'n,
    No. 93 C 6741, slip op. at 11 n.2 (N.D. Ill. June 23, 1994) (magistrate's
    recommendation) ("[I]t would appear that exemption (b)(7)(E) is essentially
    a codification of the 'high 2' exemption."), accepted & dismissed
    per stipulation
    (N.D. Ill. July 26, 1994); see also FOIA Update,
    Vol. XV, No. 2, at 3.

    30. 591 F.2d 753, 771 (D.C. Cir. 1978) (en banc).

    31. See S. Rep. No. 98-221, at 25 (1983); see
    Attorney General's 1986 Amendments Memorandum at 16-17; see also
    Don Ray Drive-A-Way, 785 F. Supp. at 200 & n.1 (finding that
    disclosure of safety ratings system is necessary to permit regulated entities
    to know what agency considers to be most serious safety breaches).

    32. See Buckner v. IRS, 25 F. Supp.
    2d 893, 899 (N.D. Ind. 1998) (noting that "the age of the [DIF] scores is
    of no consequence" in upholding protection of Discriminant Function Scores
    used to evaluate tax returns).

    33. See, e.g., PHE, 983 F.2d at 251
    (holding "release of FBI guidelines as to what sources of information are
    available to its agents might encourage violators to tamper with those sources
    of information and thus inhibit investigative efforts"); Carp v. IRS,
    No. 00-5992, 2002 U.S. Dist. LEXIS 2921, at *16 (D.N.J. Jan. 28, 2002) (concluding,
    after in camera review, that disclosure "would risk circumvention of the
    law by exposing specific, non-routine investigative techniques used by the
    IRS to uncover tax fraud"); Tax Analysts v. IRS, 152 F. Supp. 2d
    1, 17 (D.D.C. 2001) (determining that disclosure of summary of tax-avoidance
    scheme, "including identification of vulnerabilities" in IRS operations,
    could risk circumvention of law); Wishart v. Comm'r, No. 97-20614,
    1998 WL 667638, at *17 (N.D. Cal. Aug. 6, 1998) (protecting Discriminant
    Function Scores to avoid possibility that "taxpayers could manipulate" return
    information to avoid IRS audits), aff'd, 199 F.3d 1334 (9th Cir.
    1999) (unpublished table decision); Voinche v. FBI, 940 F. Supp.
    323, 331 (D.D.C. 1996) (alternative holding) (upholding nondisclosure of
    Criminal Intelligence Digest used to assist and guide FBI personnel), aff'd
    per curiam
    , No. 96-5304, 1997 U.S. App. LEXIS 19089 (D.C. Cir. June
    19, 1997); Jimenez v. FBI, 938 F. Supp. 21, 27 (D.D.C. 1996) (approving
    invocation of Exemption 7(E) to protect gang-validation criteria used by
    Bureau of Prisons to determine whether individual is gang member); Foster
    v. United States Dep't of Justice
    , 933 F. Supp. 687, 693 (E.D. Mich.
    1996) (holding that release of techniques and guidelines used in undercover
    operations would diminish their effectiveness); Pully v. IRS, 939
    F. Supp. 429, 437 (E.D. Va. 1996) (finding that release of discriminant
    function scores would enable taxpayers to "flag" IRS computers); Silber
    v. United States Dep't of Justice
    , No. 91-876, transcript at 25 (D.D.C.
    Aug. 13, 1992) (bench order) (ruling that disclosure of monograph on fraud
    litigation "would present the specter of circumvention of the law"); Ctr.
    for Nat'l Sec. Studies
    , No. 87-2068, slip op. at 14 (D.D.C. Dec. 19,
    1990) (recognizing that release of INS plans to be deployed in event of
    attack on U.S. could assist terrorists in circumventing border control).
    But see also Church of Scientology v. IRS, 816 F. Supp. 1138,
    1162 (W.D. Tex. 1993) (holding that IRS did not establish how release of
    records "regarding harassment of Service employees" written during investigation
    "could reasonably be expected to circumvent the law"), appeal dismissed
    per stipulation
    , No. 93-8431 (5th Cir. Oct. 21, 1993).

    34. S. Rep. No. 98-221, at 25 (1983); see Attorney
    General's 1986 Amendments Memorandum
    at 17; 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).

    35. 670 F.2d 1051 (D.C. Cir. 1981).

    36. See, e.g., PHE, 983 F.2d at 252
    (finding that the Department of Justice's National Obscenity Enforcement
    Unit failed to submit an affidavit containing "precise descriptions of the
    nature of the redacted material and providing reasons why releasing each
    withheld section would create a risk of circumvention of the law"); Leveto
    v. IRS
    , No. 98-285, 2001 U.S. Dist. LEXIS 5791, at *21 (W.D. Pa. Apr.
    10, 2001) (protecting dollar amount budgeted for agency to investigate particular
    individual, because release could allow others to learn agency's monetary
    limits and undermine such investigations in future); Linn, 1995 WL
    417810, at *32 (affirming nondisclosure of one page from Drug Agent's Guide
    to Forfeiture of Assets on basis that agency explained harm).

    37. See PHE, 983 F.2d at 252 (finding
    that agency must "clearly indicate why disclosable material could not be
    segregated from exempted material"); see, e.g., Wightman v. ATF,
    755 F.2d 979, 982-83 (1st Cir. 1985) (remanding for determination of segregability)
    (Exemption 2); Schreibman v. United States Dep't of Commerce, 785
    F. Supp. 164, 166 (D.D.C. 1991) (requiring agency to segregate and release
    portions of documents that merely identify computer systems rather than
    contain security plans, which remain protected as vulnerability assessments)
    (Exemption 2); see also FOIA Update, Vol. XIV, No. 3, at 11-12
    ("OIP Guidance: The 'Reasonable Segregation' Obligation").

    38. See Attorney General Ashcroft's FOIA Memorandum,
    reprinted in FOIA Post (posted 10/15/01) (emphasizing that
    agencies should "carefully consider the protection of," inter alia, law
    enforcement interests when reviewing law enforcement records).

    39. See, e.g., Living Rivers, 272 F.
    Supp. 2d at 1321 (concluding that maps of flooding likely to result from
    damage to Hoover Dam or Glen Canyon Dam were properly withheld under Exemption
    7(F), instead of under Exemption 2 or Exemption 7(E), due largely to narrow
    interpretation of law within particular judicial circuit).

    40. Ctr. for Nat'l Sec. Studies, No. 87-2068,
    slip op. at 14 (D.D.C. Dec. 19, 1990) (according Exemption 7(E) protection
    to final contingency plan in event of attack on United States, to guidelines
    for response to terrorist attacks, and to contingency plans for immigration
    emergencies).

    41. Voinche, 940 F. Supp. at 328, 331 (approving
    the nondisclosure of information "relating to the security of the Supreme
    Court building and the security procedures for Supreme Court Justices "on
    the basis of both Exemptions 2 and 7(E)); U.S. News & World Report,
    1986 U.S. Dist. LEXIS 27634, at *8 (upholding protection of Secret Service's
    contract specifications for President's armored limousine); Hayward,
    2 Gov't Disclosure Serv. (P-H), at 81,646 (protecting methods and techniques
    used by Marshals Service to relocate protected witnesses).

    42. See FOIA Post, "FOIA Officers
    Conference Held on Homeland Security" (posted 7/3/03) (summarizing recent
    authority for protecting homeland security-related information).

    43. Accord Attorney General Ashcroft's FOIA
    Memorandum, reprinted in FOIA Post (posted 10/15/01) ("I
    encourage your agency to carefully consider the protection of all [applicable]
    values and interests when making disclosure determinations under the FOIA.").

    44. See, e.g., Living Rivers, 272 F.
    Supp. 2d at 1320-22 (treating Department of the Interior's Bureau of Reclamation
    as readily falling into FOIA's law enforcement category, even though protection
    was afforded under Exemption 7(F) rather than under Exemption 7(E)); cf.
    FOIA Post, "New Attorney General FOIA Memorandum Issued" (posted
    10/15/01) (discussing the "need to protect critical systems, facilities,
    stockpiles, and other assets from security breaches and harm -- and in some
    instances from their potential use as weapons of mass destruction in and
    of themselves," as well as "any agency information that could enable someone
    to succeed in causing the feared harm").

    45. See Boyd v. DEA, No. 01-0524, slip
    op. at 7-8 (D.D.C. Mar. 8, 2002) (upholding protection under both clauses
    of Exemption 7(E) for highly sensitive research analysis in intelligence
    report properly withheld by FinCEN, Financial Crimes Enforcement Network
    of United States Department of the Treasury); see also Hammes,
    1994 WL 693717, at *1 (protecting Customs Service criteria used to determine
    which passengers to stop and examine).

    46. See Attorney General's 1986 Amendments
    Memorandum
    at 15-16 & n.27; see also Rivera, No. 98-0649,
    slip op. at 9-10 (D.D.C. Aug. 31, 1999) (upholding categorical protection
    for bank security measures).

    47. See Attorney General's 1986 Amendments
    Memorandum
    at 17 & n.31.

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