B. Reliance on 7(E)

Following Milner, some law enforcement agencies in pending FOIA cases that previously relied on “High 2” to withhold records have cited (or continued to invoke) Exemption 7(E) to justify the withholding of the same records at issue. This is not surprising given the similar “High 2” language contained in Exemption 7(E) regarding law enforcement records.

Under Exemption 7(E), an agency may withhold law enforcement information the release of which “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.”⁴⁰ For example, in one post-Milner case, the Department of Justice withdrew its Exemption 2 argument to justify its withholding of unredacted chapters of the FBI Domestic Investigations and Operations Guide, but maintained its reliance on 7(E) for the same records.⁴¹

For more information on appealing Exemption 7(E) withholdings, see the section on appealing Exemption 7 denials.