Home Browse Media Law Resources Guides Federal FOIA Appeals Guide Exemption 7 II. Harm from Disclosure

E. 7(E)

“. . . 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.”

In appealing an Exemption 7(E) denial, you may argue that an agency failed to show “logically” how releasing the requested information would “create a risk of circumvention of the law.”138 For example, one court held that U.S. Customs and Border Protection failed to explain how releasing its official definition of types of transit nodes or its historical staffing statistics could be expected to risk circumvention of the law.139

This exemption does not apply to “garden-variety legal analysis,” which includes discussion and digests of caselaw.140 For example, the U.S. Court of Appeals for the District of Columbia Circuit held that an agency could not rely on Exemption 7(E) to withhold portions of an agency manual that merely discussed case law and statutes related to obscenity.141 The court reasoned that the agency’s explanation for why Exemption 7(E) applied — that the information would give defendants “a crystal ball view of what they will face from the prosecution” — was too vague.142

Additionally, Exemption 7(E) does not apply to those investigative techniques that are “routine” and “generally known to the public.”143 As one court explained, these would include “techniques that are commonly described or depicted in movies, popular novels, stories or magazines, or on television.”144 This includes, for example, “techniques such as eavesdropping, wiretapping, and surreptitious tape recording and photographing,” which “the government should release . . . to [the requester] voluntarily.”145

The exemption also does not apply to materials within the scope of 5 U.S.C. § 552(a)(2), such as administrative staff manuals.146 Further, it may be helpful to argue for a discretionary disclosure of materials withheld under this exemption, particularly if the techniques at issue have been abandoned. OIP guidance provides that “agencies should consider whether records which reference a law enforcement technique or procedure are now outdated, or no longer sensitive, or not specific enough to cause harm.”147

138 Mayer Brown LLP v. IRS, 562 F.3d 1190, 1194 (D.C. Cir. 2009) (quoting PHE, Inc. v. DOJ, 983 F.2d 248, 251 (D.C. Cir. 1993)).

139 Families for Freedom v. U.S. Customs & Border Prot., No. 10 Civ. 2705(SAS), 2011 WL 6780896 at *8 (S.D.N.Y. Dec. 27, 2011).

140 Mayer Brown LLP, 562 F.3d at 1194 n.1.

141 PHE, Inc., 983 F.2d at 251-52.

142 Id. at 252.

143 Rosenfeld v. U.S. Dep’t of Justice, 57 F.3d 803, 815 (9th Cir. 1995).

144 Albuquerque Publ’g Co. v. U.S. Dep’t of Justice, 726 F.Supp. 851, 858 (D.D.C. 1989).

145 Id.

146 See 5 U.S.C. § 552(a)(2).

147 Memorandum from the White House Office of the Press Sec’y for the Heads of Executive Dep’ts and Agencies, Freedom of Information Act (Jan. 29, 2009).