Heartland Alliance Nat'l Immigrant Justice Ctr. v. DHS, 840 F.3d 419 (7th Cir. 2016) (Posner, J.)

Friday, October 21, 2016

Heartland Alliance Nat'l Immigrant Justice Ctr. v. DHS, 840 F.3d 419 (7th Cir. 2016) (Posner, J.)

Re: Request for records concerning Tier III terrorist organizations

Disposition: Affirming district court's grant of government's motion for summary judgment

  • Exemption 7(E): The Court of Appeals for the Seventh Circuit holds that "[t]he withholding of the name of a terrorist organization from an alien who is being questioned is . . . a technique of a law enforcement investigation that is squarely within the 7(E) exemption." The court finds that "[i]f the alien doesn't know that a terrorist organization that he has belonged to, been affiliated with, or maybe simply has provided supplies or money to, has been identified by our government as a terrorist organization, he is likely to be less guarded in answering questions about his activities in or associations with the organization." "But if he knows that the organization he belonged to or was associated with is deemed a terrorist organization, he is likely to deny having ever had any connection to it or even having ever heard of it." "And if his denials are believed he may – even if he is a past and prospective future terrorist – not only escape the government's net but also cost the government an opportunity to obtain information about the organization that might in the future help in identifying terrorists." Responding to the requester's arguments, the court finds that "[t]he government makes mistakes, but the [requester] has not shown that they're willful, or that Exemption 7(E), on which this litigation pivots, is either invalid – in fact the [requester] concedes that the exemption is valid – or inapplicable to the withheld names."

    Judge Manion, writing separately but concurring, states that the court "need not go beyond affirming the decision of the district court" which "properly granted summary judgment on the grounds that the list of Tier III names was a guideline within the meaning of 7(E)." Judge Manion argues that the "court goes on to hold that the names are law enforcement 'techniques'" which "leaves us with no better guidance for what constitutes a 'technique' or a 'guideline' under 7(E)." Judge Manion also writes to draw attention to humanitarian issues that might be highlighted by the disclosure of certain information. He notes that "Congress, through the exemptions to FOIA, has consciously made the decision to limit what governmental information is available to the public" and "Congress could choose to amend our nation's sunshine laws[.]"
Court of Appeals
Exemption 7E
Updated February 14, 2017