7. Law enforcement records

This exemption is primarily designed to protect documents when untimely disclosure would jeopardize criminal or civil investigations or cause harm to persons who help law enforcement officials or are otherwise involved in law enforcement matters. The exemption covers:

records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information

A. could reasonably be expected to interfere with enforcement proceedings

B. would deprive a person of a right to a fair trial or an impartial adjudication

C. could reasonably be expected to constitute an unwarranted invasion of personal privacy

D. could reasonably be expected to disclose the identity of a confidential source, including a state, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source

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, or

F. could reasonably be expected to endanger the life or physical safety of any individual.

Congress significantly expanded the law enforcement exemption in 1986 in response to government complaints that it could not adequately protect confidential sources, ongoing investigations or procedure manuals.

Generally, in order to withhold information, agencies must demonstrate that one of the enumerated harms “could reasonably be expected” to occur.

Agencies need not show that files are investigatory in order to withhold records, but they must show that the documents were compiled for criminal, civil or other law enforcement purposes. In addition, information originally compiled for law enforcement purposes does not lose its Exemption 7 protection merely because it is summarized in a new document created for a non-law enforcement purpose.⁶⁷

Even if documents were originally prepared for a law enforcement purpose, passage of time may have eroded any perceived need for secrecy. Old records may be more readily available than recent records.

The exemption covers most types of records related to investigations of crimes or violations of laws, if disclosure would interfere with ongoing or potential enforcement proceedings. These records include interviews with witnesses, affidavits and notes compiled by investigative officers.

In withholding information under subsection (A), agencies often claim that disclosure will interfere with enforcement proceedings. But the exemption is generally applied when an enforcement proceeding has actually begun, or when there is a “concrete prospect” that an ongoing investigation will lead to an enforcement proceeding. It does not apply to information developed after enforcement proceedings have ended. A trial, conviction or sentencing may free records for disclosure.

In the aftermath of Sept. 11, 2001, a divided appeals court allowed the government to withhold under 7(A) the names of hundreds of detainees and their attorneys and details of the detainees’ arrests and incarceration, because disclosure might affect “national security.”⁶⁸

Subsection (B) primarily concerns prejudicial publicity in criminal, not civil or administrative, proceedings. It cannot be invoked simply to curtail the amount of publicity given to an enforcement proceeding.

As with the Act’s main privacy exemption (Exemption 6), under subsection (C) agencies must balance the degree of intrusion into individual privacy against the public interest in disclosure in deciding whether to withhold information. The only public interest in disclosure that agencies will consider, at least when they are looking at Exemption 7(C), is the public’s interest in government operations and activities. If a requester is seeking law enforcement pictures or other data concerning a mysterious death, survivors may have a right of privacy to be left alone in their grief.⁶⁹ For the public interest to outweigh that privacy interest, the requester must present evidence of government officials’ wrongdoing. The evidence does not have to be “clear evidence,” but it must be sufficient to make a reasonable person believe that an impropriety has occurred. (See discussion under Exemption 6.)

The privacy interests that can be protected in law enforcement records are broader than those protected under Exemption 6. In 2004, the Supreme Court found a “survivor’s privacy” interest in photographic death images or other data located in law enforcement records. The court also required requesters seeking law enforcement data when privacy interests are at issue to present evidence the government had acted improperly.⁷⁰

This subsection has been used to withhold the identity of an informant who may not technically qualify as a “confidential source” whose identity might be protected by Subsection (D).

Subsection (D) is designed to protect the identities of confidential sources. It applies to people who are expressly promised confidential treatment, but it does not automatically protect sources who do not receive that promise. The Supreme Court ruled that the government may not presume that every source providing information in a criminal investigation is a confidential source. The government must instead look at the nature of the crime investigated and the source’s relationship to it in deciding whether a source had a likely expectation of confidentiality.⁷¹

Courts have generally interpreted the provision broadly by holding that it protects the identity of a confidential informant even though the individual is dead and even if the person’s status as an informant was known.⁷² The protection extends to information provided by confidential sources in criminal and national security intelligence investigations. If disclosures would not harm the confidential source involved in 7(D), the agency could make discretionary disclosures of information and, as a requester, you may want to point this out in an appeal if the information is withheld. The statute provides that state, local and foreign agencies, and even private institutions, may be considered confidential sources.

Subsection (E) exempts from disclosure “investigative techniques and procedures for law enforcement investigations or prosecutions.” This provision has generally been applied only to secret techniques and procedures not well known to the public. Routine scientific tests, like fingerprinting, are not covered. Agencies have some discretion on whether to invoke the first clause of Exemption 7(E) if harm could not occur from release of the information. Guidelines for conducting investigations and prosecutions are exempt if disclosure could reasonably be expected to risk circumvention of the law. This clause is often invoked along with Exemption 2’s protection against circumvention of laws. During the Bush administration, it became an important vehicle for shielding information about aspects of the war on terrorism. The government repeatedly contended that terrorists might make use of information about vulnerabilities if it were provided in response to a FOIA request.⁷³

Under subsection (F), information can be withheld if disclosure could reasonably be expected to endanger life or physical safety. Agencies invoke 7(F) most frequently to bar the release of names of law enforcement officers — federal or state — or others mentioned in criminal investigative files. It does not generally protect information that is public in another forum, such as a list of witnesses at trial.

The Defense Department attempted to block the release of photos taken at Abu Ghraib, the notorious Baghdad prison, using Exemption 7(F). However, the U.S. Court of Appeals in Manhattan (2nd Cir.) expressly rejected the argument that release of the prison abuse photos could endanger the lives or physical safety of Americans abroad, stating that without identifying “at least one individual with reasonable specificity” who might be endangered, exempting records from release under 7(F) was simply not justified.⁷⁴

The 1986 amendments state that some law enforcement records are “excluded” from coverage under FOIA. An agency need not acknowledge that records exist if they concern ongoing, undisclosed criminal investigations; identify confidential informants of a criminal law enforcement agency; or include classified FBI information about foreign intelligence, counterintelligence or international terrorism investigations. To appropriately exclude the records, agencies should tell requesters that they “neither confirm nor deny” their existence, invoking a “Glomar” response. (See discussion of Exemption 1.) However, several agencies view the privilege as allowing them to deny that records exist even if they do, in fact, exist. Because of this, requesters who suspect the use of an exclusion should appeal an agency’s claim that records do not exist just as if it had denied them.

Requesters have a right to appeal if they believe the agency has excluded records from FOIA coverage, and the courts have jurisdiction to review an agency’s claims under the exclusions. However, in response to a requester’s court challenge, agencies will submit secret affidavits justifying secrecy for in-chambers review by the judge, whether or not the records actually exist.

⁶⁷ Fed. Bureau of Investigation v. Abramson, 456 U.S. 615 (1982).

⁶⁸ Center for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918 (D.C. Cir. 2003), cert. denied, 124 S.Ct. 1041 (2004).

⁶⁹ See Nat’l Archives & Records Admin. v. Favish, above.

⁷⁰ See Nat’l Archives & Records Admin. v. Favish, above.

⁷¹ Dep’t of Justice v. Landano, 508 U.S. 165 (1993).

⁷² Kiraly v. Fed. Bureau of Investigation, 728 F.2d 273 (6th Cir. 1984).

⁷³ See Living Rivers, Inc. v. U.S. Bureau of Reclamation, above; see also Coastal Delivery Corp. v. U.S. Customs Serv., above.

⁷⁴ American Civil Liberties Union v. Dep’t of Defense, 543 F.3d 59 (2nd Cir. 2008).