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FOIA Update: FOIA Counselor: Questions & Answers

FOIA Update
Vol. V, No. 2

FOIA Counselor:  Questions & Answers

Can an agency withhold under Exemption 7(E) investigative techniques and procedures that are not completely secret?

Yes. Although the legislative history of Exemption 7(E) specifies that it was not intended to protect "routine techniques and procedures," Conf. Rep. No. 1200, 93d Cong., 2d Sess. 12, reprinted in 1974 U.S. Code Cong. & Ad. News 6285, 6291, this should not be taken as an absolute secrecy requirement. Rather, the courts have construed Exemption 7(E) as "extend[ing] to investigative techniques and procedures generally unknown to the public." Malloy v. United States Department of Justice, 457 F. Supp. 543, 545 (D.D.C. 1978) (emphasis added). See also, e.g., Jaffe v. CIA, 573 F. Supp. 377, 387 (D.D.C. 1983) ("[Exemption 7(E)] extends to information regarding obscure or secret techniques.") (emphasis added). Indeed, Exemption 7(E) was recently found applicable even to certain procedures conceded to be commonly known, where it was shown that "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 to insure its future effectiveness." Martinez v. FBI, Civil No. 82-1547, slip op. at 16 (D.D.C. Oct. 11, 1983).

Can the identities of law enforcement personnel always be withheld under Exemption 7(C)?

No, not as an absolute rule, but such identities are usually found entitled to Exemption 7(C) protection. The courts have for several years now recognized in FOIA cases that a public servant is entitled to privacy protection "even with respect to the discharge of his official duties." Nix v. United States, 572 F.2d 998, 1006 (4th Cir. 1978). In the law enforcement area, such privacy interests are particularly acute because, as the D.C. Circuit has put it, "disclosure of the names of individual agents could subject these agents to personal harassment or discomfort." Baez v. United States Department of Justice, 647 F.2d 1328, 1339 (D.C. Cir. 1980). Consequently, the identities of FBI agents and comparable law enforcement personnel have consistently been found properly withheld pursuant to Exemption 7(C). See, e.g., Ingle v. Department of Justice, 698 F.2d 259, 269 (6th Cir. 1983); Miller v. Bell, 661 F.2d 623, 629-31 (7th Cir. 1981), cert. denied, 456 U.S. 960 (1982); Ferguson v. Kelley, 455 F. Supp. 324, 327 (N.D. Ill. 1978) (on reconsideration) (protecting names of FBI agents and local law enforcement personnel). Indeed, the First Circuit Court of Appeals recently extended such protection to investigators in the Department of Labor's Office of Inspector General. See New England Apple Council v. Donovan, 725 F.2d 139, 142-44 (1st Cir. 1984). See also Casteneda v. United States, Civil No. 83-0969 (S.D. Cal. Nov. 16, 1983) (USDA Food and Nutrition Service investigator).

However, it must be remembered that Exemption 7(C) necessarily involves a balancing of private and public interests on a case-by-case basis; there thus exists no "blanket exemption for the names of all [law enforcement] personnel in all documents." Lesar v. United States Department of Justice, 636 F.2d 472, 487 (D.C. Cir. 1980); see also Baez v. United States Department of Justice, 647 F.2d at 1339. Consequently, it is always possible that in a given case a court may be reluctant to accord Exemption 7(C) protection to the identity of a law enforcement officer. See, e.g., Canadian Javelin, Ltd. v. SEC, 501 F. Supp. 898, 904 (D.D.C. 1980) (names of SEC investigators ordered disclosed); see also Iglesias v. CIA, 525 F. Supp. 547, 563 (D.D.C. 1981). In such cases, though, the possible applicability of Exemption 7(F) should be considered. See, e.g., Stassi v. Department of the Treasury, Civil No. 78-0533, slip op. at 6, 11-12 (D.D.C. Mar. 30, 1979) (Exemption 7(F) applied in lieu of Exemption 7(C) to protect Customs personnel).

Can Exemption 7 be invoked for information not initially compiled for law enforcement purposes?

Yes, if the information is subsequently compiled into a legitimate law enforcement file. When records not initially compiled for law enforcement purposes "become an important part of the record compiled . . . for an ongoing investigation," Exemption 7 becomes applicable. Fedders Corp. v. FTC, 494 F. Supp. 325, 328 (S.D.N.Y.), aff'd mem., 646 F.2d 560 (2d Cir. 1980). In Lesar v. United States Department of Justice, 636 F.2d 472, 487 (D.C. Cir. 1980), for example, the D.C. Circuit held that even if certain FBI information gathered on Dr. Martin Luther King arguably was not initially compiled for legitimate law enforcement purposes, it nevertheless fell within Exemption 7 when subsequently compiled into an unquestionably proper law enforcement file. See also, e.g., Cohen v. EPA, 575 F. Supp. 425, 427 (D.D.C. 1983). Indeed, to exclude such information from Exemption 7 coverage "would exalt form over substance." Fedders Corp. v. FTC, 494 F. Supp. at 328. Cf. FBI v. Abramson, 456 U.S. 615, 624 (1982).

Records may not be withheld under Exemption 7, however, merely because they became "commingled" in an investigatory file. See, e.g., Hatcher v. United States Postal Service, 556 F. Supp. 331, 334-35 (D.D.C. 1982) (routine administrative documents generated prior to investigation, but simply placed into investigatory file, held not entitled to Exemption 7 protection). See also Goldschmidt v. Department of Agriculture, 557 F. Supp. 274, 276-77 (D.D.C. 1983).

Can the information given to an agency by a confidential source be protected under Exemption 7(D) even if the source ultimately testifies?

Yes. The second clause of Exemption 7(D) authorizes the nondisclosure of all confidential information furnished by a source in any criminal or lawful national security intelligence investigation. See 5 U.S.C. § 552(b)(7)(D). It is well established that this broad confidential source protection is not lost once a source's identity becomes known through public testimony or some other such means. See, e.g., Radowich v. United States Attorney, District of Maryland, 658 F.2d 957, 960 & n.10 (4th Cir. 1981); Lame v. United States Department of Justice, 654 F.2d 917, 925 & n.9 (3d Cir. 1981); Lesar v. United States Department of Justice, 636 F.2d 472, 491 (D.C. Cir. 1980); Keeney v. FBI, 630 F.2d 114, 119 n.2 (2d Cir. 1980); Interstate Motor Freight System v. United States Department of Labor, 554 F. Supp. 692, 694 (W.D. Mich. 1982).

Indeed, as one court has stated it: "Because a person may have given testimony at a trial on a specific topic does not mean that all information offered by that source upon a guarantee of confidentiality automatically becomes available to the person to whom it relates. The nontestimonial information may be far more damaging than any testimony freely given and may place the source in great peril." Scherer v. Kelley, 584 F.2d 170, 176 n.7 (7th Cir. 1978), cert. denied, 440 U.S. 964 (1979). Cf. Kiraly v. FBI, 728 F.2d 273, 280 (6th Cir. 1984) ("The mere act of testifying at trial therefore should not open private files to public disclosure.") (Exemption 7(C)); see also id. at 281 (concurring on Exemption 7(D) basis).

Can Exemption 7(A) be used to protect the records of closed or dormant investigations?

Yes, under some circumstances. As a general rule, Exemption 7(A) is not designed to protect the records of closed investigations. In fact, it was the "blanket" nondisclosure of closed investigative files under the original version of Exemption 7 that most prompted Congress to amend it in 1974, leading to the current "interfere with law enforcement proceedings" language of Exemption 7(A). See, e.g., Title Guarantee Co. v. NLRB, 534 F.2d 484, 492 (2d Cir. 1976). Further, in the legislative history of the 1974 Amendments, Congress made quite clear that Exemption 7(A) was intended to protect against harm to "concrete prospective law enforcement proceeding[s]." 120 Cong. Rec. S9329 (daily ed. May 30, 1974) (remarks of Senator Hart) (emphasis added).

This standard, however, does not rule out the application of Exemption 7(A) to dormant investigations. For example, in National Public Radio v. Bell, 431 F. Sup 509 (D.D.C. 1977), a court considered the applicability Exemption 7(A) to the Department of Justice's investigative files on the mysterious death of plutonium worker Karen Silkwood. At that time, it was conceded that the investigation was "in a 'dormant' stage in that all available investigative leads ha[d] been pursued" without success. 431 F. Supp. at 514. Nevertheless, noting that the applicable statute of limitations had yet to expire, the court held the investigation to be "one which will hopefully lead to a 'prospective law enforcement proceeding'" within the meaning of Exemption 7(A). Id. (emphasis in original). In so holding, it stressed that Exemption 7(A) was aimed at preventing "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." Id. at 514-15. See also Erb v. United States Department of Justice, 572 F. Supp. 954, 956 (W.D. Mich. 1983) (Exemption 7(A) protection accorded even after investigation announced to be "concluded 'for the time being'"); ABC Home Health Services, Inc. v. United States Department of Health & Human Services, 548 F. Supp. 555, 559 (N.D. Ga. 1982) (Exemption 7(A) held applicable after settlement so long as "further proceedings are not foreclosed").

Finally, it should be remembered that the records of a closed investigation may be quite significant to one or more ongoing ones. As one court stated it, Exemption 7(A ) is properly applicable "where the closed file documents remain fully relevant to a specific pending enforcement proceeding, although, to be sure, not the one for which they were precisely intended." New England Medical Center Hospital v. NLRB, 548 F.2d 377, 385 (1st Cir 1976). Indeed, it is possible, under such circumstances that Exemption 7(A) can be "as fully applicable to the closed as to the open file records." Id. at 386. See also e.g., Ostrer v. FBI, Civil No. 83-0328, slip op. at 4-5 (D.D.C. Sept. 22, 1983) (appeal pending); Capital Times Co. v. NLRB, 483 F. Supp. 247, 250-51 (E.D. Wis. 1980); but cf. Nemacolin Mines Corp. v. NLRB, 467 F Supp. 521, 523-24 (W. D. Pa. 1979) (agency must actually intend to use information in related future enforcement matter).

Can Exemption 7 be invoked for records compiled by the federal government in connection with a nonfederal investigation?

Yes. Exemption 7's threshold requirement that investigatory records be compiled for "law enforcement purposes" makes no reference to federal investigations, nor can any such limitation logically be inferred. Indeed, in every case to have considered this question thus far, it has been held that "there is no implied 'federal law' limit in Exemption 7." Peterzell v. Department of Justice, 576 F. Supp. 1492, 1494 (D.D.C. 1983) (appeal pending). See also Donovan v. FBI, 579 F. Supp. 1111, 1117-20 (S.D.N.Y. 1983) (appeal pending) (foreign law enforcement investigation); Bevis v. Department of State, 575 F. Supp. 1253, 1256 (D.D.C. 1983) (appeal pending) (same); Wojtczak v. United States Department of Justice, 548 F. Supp. 143, 146-48 (E.D. Pa. 1982) ("Exemption 7 applies to all law enforcement records, federal, state, or local, that lie within the possession of the federal government.").

Can Exemption 5 be invoked for criminal law enforcement records?

Yes. At first blush, the application of Exemption 5 to criminal law enforcement records might seem a bit odd. To be sure, Exemption 5 incorporates civil discovery privileges and is typically invoked in connection with noncriminal matters. Even the Supreme Court has noted the somewhat nebulous posture of the government with respect to Exemption 5 claims: "[W]e do not know whether the government is to be treated as though it were a prosecutor, a civil plaintiff, or a defendant." EPA v. Mink, 410 U.S. 73, 86 (1973). See also Ferri v. United States Department of Justice, 573 F. Supp. 852, 864 n.33 (W.D. Pa. 1983).

However, there is no logical reason why Exemption 5 privileges could not arise in the context of a criminal law enforcement investigation. After all, as the Supreme Court has stressed, the legislative intent underlying Exemption 5 was to shield certain internal governmental deliberations and consultations from public view where necessary to avoid harm to agency functioning. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975); EPA v. Mink, 410 U.S. at 87. Nowhere in that legislative history was it suggested that this objective is any less vital for criminal law enforcement matters; consequently, the courts have not refrained from upholding an otherwise applicable Exemption 5 claim for such records.

For example, criminal investigative files quite commonly contain recommendations by subordinate personnel as to "possible approaches to be taken" in such proceedings, which can certainly qualify for deliberative process privilege protection under Exemption 5. Afshar v. Department of State, 702 F.2d 1125, 1140 (D.C. Cir. 1983). Likewise, such law enforcement files can easily contain many documents qualifying for broad attorney work-product or attorney-client privilege protection, even if prepared by criminal investigators. See, e.g., Conoco Inc. v. United States Department of Justice, 687 F.2d 724, 728-29 (3d Cir. 1982). See also FOIA Update, Summer 1983, at 6. Indeed, one court has observed that Exemption 5 is "tailor-made" for protecting sensitive discussions of investigatory data compiled during the criminal investigative and prosecutorial processes. Fund for Constitutional Government v. National Archives & Records Service, 485 F. Supp. 1, 13 (D.D.C. 1978), aff'd on other grounds, 656 F.2d 856 (D.C. Cir. 1981). See also Antonelli v. Sullivan, 732 F.2d 560, 561 (7th Cir. 1984).

Can one federal agency ever be treated as a "confidential source" of another federal agency?

No. Although the courts have generally been quite expansive in extending the protections of Exemption 7(D), there is no basis for treating a federal agency as a "confidential source" within the meaning of this exemption. See Retail Credit Co. v. FTC, 1976-1 Trade Cas. (CCH) ¶ 60,727 at 68,127 n.3 (D.D.C. 1976) ("Certainly [one federal agency] cannot be a confidential source [of another federal agency]."). However, when one federal agency supplies another with information obtained from the first agency's own confidential source, the protection afforded by Exemption 7(D) is in no way impaired. As one court put it: "The text of the FOIA protects without qualification every 'confidential source' and does not draw a distinction between a direct and an indirect 'confidential source.'" Sands v. Murphy, 633 F.2d 968, 970 (1st Cir. 1980). It should also be remembered that the courts have now uniformly held that all nonfederal law enforcement authorities--foreign, state, or local -- can be considered confidential sources under Exemption 7(D). See, e.g., Lesar v. United States Department of Justice, 636 F.2d 472, 491 (D.C. Cir. 1980); Church of Scientology v. United States Department of Justice, 612 F.2d 417, 427 (9th Cir. 1979).


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Updated December 9, 2022