I. Subject of Criminal Investigation

The first exclusion applies to requests for records that would properly fall under Exemption 7(A), and a) “the investigation or proceeding involves a possible violation of criminal law,” and b) “there is reason to believe that (i) the subject of the investigation or proceeding is not aware of its pendency, and (ii) disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings.”⁶

An agency “cannot . . . refuse to acknowledge requested records under this authority unless the records concern a criminal, rather than civil, law enforcement proceeding.”⁷ This exclusion is designed “to prevent a ‘tipoff’ of investigatory activity to someone using the FOIA to find out if such activity is underway.”⁸

The FOIA provides that this exclusion can apply “during only such time as that circumstance continues.”⁹ In contesting a possible application of this exclusion, you should argue — where possible — that “there is reason to believe that the subject of an investigation or proceeding is aware of its pendency,” as this exclusion could no longer apply at that point.¹⁰

The legislative history of this exclusion provides examples of “certain publicly demonstrable facts” a requester can produce to establish “a heavy presumption of the subject’s awareness” of the proceedings:¹¹

• “public statements by law enforcement officials relating to an ongoing or contemplated investigation”;

• “returns of subpoenas and search warrants against subjects or other persons from whom the subject could reasonably be expected to learn of the subpoenas or search warrants”;

• “public statements by subjects or persons associated with subjects”;

• “arrests of subjects or persons associated with subjects”;

• “grand jury investigations of which subjects and/or the general public are aware”; and

• “any other incident or statement that brings the existence of an investigation to public attention.”¹²

You should — if possible — provide the agency with documentation of any of the above or similar facts, such as news articles or relevant court records. As stated in the legislative history of the exclusion, “[r]equesters who present such publicly demonstrable facts to an agency are to receive due consideration or reconsideration of their requests within the administrative process.”¹³

In your appeal letter, it may be helpful to remind the agency that “[a] showing by a requester that an agency had in its possession such publicly demonstrable facts, but withheld records from normal search and review processes without justification will raise a strong inference of an arbitrary and capricious withholding.”¹⁴