I. Were the Records "Compiled for Law Enforcement Purposes"?

Records are “compiled for law enforcement purposes” if they “were compiled for adjudicative or enforcement purposes” related to the enforcement of criminal and civil laws.² This requirement is not limited to federal laws as courts have accepted investigations of crimes under foreign and state law enforcement proceedings as satisfying this requirement.³

There are several ways to challenge an agency’s position that the records you requested were “compiled for law enforcement purposes.”

First, you may argue that the agency does not have law enforcement powers, and therefore cannot invoke Exemption 7.⁴ For example, the U.S. Court of Appeals for the District of Columba has held that records from a CIA investigation were not “compiled for law enforcement purposes” because the law creating the CIA — the National Security Act of 1947 — specifically provides that the agency has no law enforcement powers.⁵

However, federal appeals courts are split on how to determine whether records are “compiled for law enforcement purposes.” The First,⁶ Second,⁷ Sixth,⁸ Eighth,⁹ and Tenth¹⁰ Circuit Courts of Appeal have ruled that records from law enforcement agencies, such as the FBI and Bureau of Prisons, areper se — that is, assumed to be   — “compiled for law enforcement purposes,” reasoning that the phrase describes “the type of agency” to which the exemption applies.¹¹

In these circuits, “agencies whose primary function is not law enforcement” may still “rely on Exemption 7.”¹² With respect to these agencies, at least one federal appeals court has explicitly declined to provide a “theory as to which burden such agencies bear in establishing that records or information were compiled for law enforcement purposes.”¹³ The law remains somewhat unclear as to how “per se” jurisdictions handle the question of what constitutes a “law enforcement purpose” where the agency at issue is one whose primary function is not law enforcement. In such cases, however, the logic of the rational nexus test may provide an effective argument.

In contrast, the District of Columbia,¹⁴ Third,¹⁵ and Ninth Circuit¹⁶ Courts of Appeal have adopted a two-part “rational nexus test” to determine if a record was “compiled for law enforcement purposes.” First, the investigatory activity giving rise to the documents must relate “to the enforcement of federal laws or to the maintenance of national security.”¹⁷ To demonstrate this, the agency must identify both “a particular individual or a particular incident as the object of its investigation and the connection between that individual or incident and a possible security risk or violation of federal law.”¹⁸ This requires the agency to establish that it “acted within its principal function of law enforcement, rather than merely engaging in a general monitoring of private individuals' activities.”¹⁹

Second, the agency must establish the nexus between that investigation and one of its law enforcement duties through “information sufficient to support at least ‘a colorable claim’ of its rationality.”²⁰ That is, the agency must provide more than a “pretextual or wholly unbelievable” basis for that connection, although it is not necessarily required that the investigation lead to an enforcement proceeding.²¹ Additionally, if the claim of “law enforcement purpose” is being made by a criminal law enforcement agency, courts “may apply a more deferential attitude toward” that agency’s claim.²²

In your appeal, you should challenge — where possible — whether the government has specifically pinpointed the subject or target of its investigation. Next, you may argue that the agency has not adequately established the connection between the subject of that investigation, the possible illegal conduct or security risk, and an agency duty to investigate it. You also may counter the agency’s claim that the documents were “compiled for a law enforcement purpose” by — where possible — providing evidence that its claimed law enforcement purpose is merely a pretext, or is unbelievable for other reasons.

Another basis on which you can attack an agency’s claims that documents were “compiled for law enforcement purposes” may arise where an internal investigation is involved. Where an agency conducts an internal investigation of its “own activities and employees,” you may argue that it engaged in “general internal monitoring of its own employees to insure compliance with the agency’s statutory mandate and regulations,” rather than “for a law enforcement purpose” as required under Exemption 7.²³

If an agency’s investigation of its employees does not focus “directly on specifically alleged illegal acts, illegal acts of particular identified officials, acts which could, if proved, result in civil or criminal sanctions,” then it does not meet the “law enforcement purpose” requirement.²⁴ That is, an agency cannot rely on Exemption 7 for investigations intended to determine “whether to discipline employees for activity which does not constitute a violation of law.”²⁵ 

Moreover, where an agency attempts to withhold documents under Exemption 7 that relate to an investigation of its own employee(s), you should argue — if possible — that the improper action being investigated would not constitute a violation of any law.

² Stern v. F.B.I., 737 F.2d 84, 88-9 (D.C. Cir. 1984).

³ See Bevis v. Dep’t of State, 801 F.2d 1386, 1388 (D.C. Cir. 1986).

⁴ Weissman v. CIA, 565 F.2d 692, 695-96 (D.C. Cir. 1977).

⁵ Id.

⁶ Irons v. Bell, 596 F.2d 468, 474-76 (1st Cir. 1979).

⁷ Ferguson v. F.B.I., 957 F.2d 1059, 1070 (2d Cir. 1992).

⁸ Jones v. F.B.I., 41 F.3d 238, 245-46 (6th Cir. 1994).

⁹⁹ Kuehnert v. F.B.I., 620 F.2d 662, 666-67 (8th Cir. 1980).

¹⁰ Jordan v. U.S. Dep’t of Justice, 668 F.3d 1188, 1195-97 (10th Cir. 2011), cert. denied, 132 S.Ct. 2400 (2012).

¹¹ Irons, 596 F.2d at 474.

¹² Jordan, 668 F.3d at 1197 n.5.

¹³ Id.

¹⁴ Pratt v. Webster, 673 F.2d 408, 419-21 (D.C. Cir. 1982).

¹⁵ Abdelfattah v. U.S. Dep’t of Homeland Sec., 488 F.3d 178, 184-86 (3d Cir. 2007).

¹⁶ Church of Scientology v. U.S. Dep’t of Def., 611 F.2d 738, 748 (9th Cir. 1979).

¹⁷ Pratt, 673 F.2d at 420.

¹⁸ Id.

¹⁹ Id.

²⁰ Id. at 421.

²¹ Id.

²² Id. at 418.

²³ Stern, 737 F.2d at 89.                                                                                    

²⁴ Id. (quoting Rural Housing Alliance v. U.S. Dep’t of Agric., 498 F.2d 73, 81 (D.C. Cir. 1974) (internal quotation marks omitted)).

²⁵ Stern, 737 F.2d at 90.