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FOIA Update: Protecting Law Enforcement Data

FOIA Update
Vol. V, No. 2

Protecting Law Enforcement Data

When the Freedom of Information Act was enacted in 1966, it had very little impact in the area of federal law enforcement, primarily due to the extremely broad "investigatory files" exemption originally contained in it. That changed drastically, however, when Congress enacted the 1974 Amendments to the Freedom of Information Act almost ten years ago.

During the past decade, the FOIA has had a dramatic effect upon many aspects of federal law enforcement. On a day-to-day basis, federal officers and those with whom they deal are now necessarily concerned with the prospects of law enforcement information disclosure under the FOIA. All across the government, FOIA officials and document analysts process tens of thousands of requests for highly sensitive investigatory records annually, often struggling with the subtle delineations required under the six subparts of the amended Exemption 7. At the FBI alone, hundreds of employees are so occupied.

This issue of FOIA Update is devoted to the theme of protecting law enforcement information under the FOIA. In this area, certainly no legal issue is more topical and controversial than the question of whether the broad criminal law enforcement exemption contained in Privacy Act subsection (j)(2) can serve as a FOIA Exemption 3 statute. The Supreme Court has now agreed to decide this complex disclosure issue (see "Supreme Court Update" on pages 12-13) and it is explored further in the "Guest Article" appearing on pages 8-9.

Far less controversial, but similarly economical for law enforcement agencies, is the "generic Exemption 7(A)" approach recommended in the "FOIA Counselor" discussion on pages 3-4. And in the expanded "FOIA Counselor Q&A" section on pages 5-7, eight additional law enforcement data topics are addressed.

Finally, the subject of this issue's "FOIA Focus" feature (see pages 14-15) is senior FBI official Tom Bresson, who has personally overseen the FBI's FOIA activities since the time of the 1974 Amendments, becoming over the past decade the acknowledged "dean" of law enforcement information disclosure.

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Updated August 13, 2014