U.S. Department
of Justice
FOIA Guide, 2004 Edition: Exemption 7(E)
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Freedom of Information Act Guide, May 2004 |
Exemption 7(E)
Exemption 7(E) affords protection to all law enforcement information that "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." (1) It is worth noting at the outset that homeland security-related information, insofar as it meets the law enforcement threshold requirement for all of Exemption 7, (2) qualifies for protection under Exemption 7(E) as highly sensitive information to be shielded from disclosure if it also satisfies one of the two distinct protective clauses that constitute this exemption. (3)
The first clause of Exemption 7(E) permits the withholding of "records or information compiled for law enforcement purposes . . . [that] would disclose techniques and procedures for law enforcement investigations or prosecutions." (4) This clause is phrased in such a way so as to not require a showing of any particular determination of harm -- or risk of circumvention of law -- that would be caused by disclosure of the records or information within its coverage. (5) Rather, it is designed to provide "categorical" protection of the information so described. (6)
Notwithstanding the broad scope of Exemption 7(E)'s protection, in order for the exemption to apply, the technique or procedure at issue ordinarily must not be well known to the public. (7) Accordingly, techniques such as "wiretapping," (8) "mail covers" and the "use of post office boxes," (9) "'security flashes' or the tagging of fingerprints," (10) pretext telephone calls, (11) and "planting transponders on aircraft suspected of smuggling" (12) have been denied protection under Exemption 7(E) when courts have found them to be generally known to the public.
In some cases, however, even commonly known procedures have been protected from disclosure when "'the circumstances of their usefulness . . . may not be widely known,'" (13) or "their use in concert with other elements of an investigation and in their totality directed toward a specific investigative goal constitute a 'technique' which merits protection." (14) Increasingly, moreover, courts have endorsed the withholding of a wide variety of commonly known procedures -- for example, polygraph examinations, (15) undercover operations, (16) and surveillance techniques (17) -- on the basis that disclosure of their details could reduce or even nullify their effectiveness. (18)
More recent case law continues a trend apparent in older cases (19) of allowing agencies to describe the general nature of the technique while withholding the full details. (20) Often, however, it is not possible to describe secret law enforcement techniques, even in general terms, without disclosing the very information sought to be withheld. (21) A court's in camera review of the documents at issue may be required to demonstrate the propriety of nondisclosure in such cases. (22)
Prior to the enactment of the Freedom of Information Reform Act of 1986, (23) Exemption 7(E) protected law enforcement techniques and procedures only when they could be regarded as "investigatory" or "investigative" in character, (24) but this limitation was removed by those FOIA amendments. Exemption 7(E), as amended in 1986, simply covers "techniques and procedures for law enforcement investigations or prosecutions." (25) As such, it authorizes the withholding of information consisting of, or reflecting, a law enforcement "technique" or a law enforcement "procedure," wherever it is used "for law enforcement investigations or prosecutions" generally. (26) Law enforcement manuals, including those that pertain to the "prosecutions" stage of the law enforcement process, accordingly meet the requirements for withholding under Exemption 7(E) to the extent that they consist of, or reflect, law enforcement techniques and procedures that are confidential and must remain so in order to preserve their effectiveness. (27)
The second clause of Exemption 7(E) protects "guidelines for law enforcement investigations or prosecutions if [their] disclosure could reasonably be expected to risk circumvention of the law." (28) As such, it has a distinct harm standard built into it -- not unlike the "anti-circumvention," "high 2" aspect of Exemption 2. (29) (See the discussion under Exemption 2, "High 2": Risk of Circumvention, above.) This distinct protection is intended to ensure proper protection for the type of law enforcement guideline information found ineligible to be withheld in the en banc decision of the Court of Appeals for the District of Columbia Circuit in Jordan v. Department of Justice, (30) a case involving guidelines for prosecutions. It reflects a dual concern with the need to remove any lingering effect of that decision, while at the same time ensuring that agencies do not unnecessarily maintain "secret law" establishing standards that are used to regulate societal behavior. (31)
This clause of Exemption 7(E) therefore is available to protect any "law enforcement guideline" information of the type involved in Jordan, whether it pertains to the prosecution or basic investigative stage of a law enforcement matter, whenever it is determined (32) that its disclosure "could reasonably be expected to risk circumvention of the law." (33) In choosing this particular harm formulation, Congress employed the more relaxed harm standard now used widely throughout Exemption 7, and it obviously "was guided by the 'circumvention of the law' standard that the D.C. Circuit established in its en banc decision" (34) in Crooker v. ATF. (35)
Accordingly, in applying this second clause of Exemption 7(E) to law enforcement manuals, agencies should focus on the portions of those guidelines that correlate to particular harm to law enforcement efforts (36) and at the same time should make every effort to meet their obligations to disclose all reasonably segregable, nonexempt information. (37) (See the further discussions of this point under Procedural Requirements, "Reasonably Segregable" Obligation, above, and Litigation Considerations, "Reasonably Segregable" Requirements, below.)
Additionally, in the current post-September 11, 2001 environment, law enforcement information that might be covered by the provisions of Exemption 7(E) should be viewed in light of its potential for causing harm -- or risking danger -- to individuals or to the public collectively. (38) Thus, information such as emergency action plans, (39) guidelines for response to terrorist attacks, (40) and analyses of security procedures (41) may well be protected from disclosure under more than one FOIA exemption. (42) (See the discussions of this point under Exemption 2, above, and Exemption 7(F), below.) It is vitally important in all instances to conduct a careful review of any information of homeland security sensitivity in order to evaluate any likelihood of disclosure harm, either in the form of potential danger to a person or persons or as a consequence of circumvention of law or regulation. (43)
In sum, law enforcement agencies -- including the wide range of agencies that discharge homeland security-related responsibilities (44) -- may avail themselves of the distinct protections provided in Exemption 7(E)'s two clauses. (45) Their "noninvestigatory" law enforcement records, to the extent that they can be regarded as reflecting techniques or procedures, are entitled to categorical protection under Exemption 7(E)'s first clause. (46) In addition, law enforcement guidelines that satisfy the broad "could reasonably be expected to risk circumvention of law" standard can be protected under Exemption 7(E)'s second clause. (47) (See the discussion of Exemption 2's overlapping "anti-circumvention" protection under Exemption 2, "High 2": Risk of Circumvention, above.)
1. 5 U.S.C. § 552(b)(7)(E) (2000).
2. See, e.g., Living Rivers, Inc. v. United States Bureau of Reclamation, 272 F. Supp. 2d 1313, 1318 (D. Utah 2003) (determining that agency's use of flood maps to develop emergency action plans for homeland security purposes readily met "compiled for law enforcement purpose" requirement); see also, e.g., Coastal Delivery Corp. v. United States Customs Serv., 272 F. Supp. 2d 958, 964-65 (C.D. Cal. 2003) (readily acknowledging Customs Service's law enforcement purpose), reconsideration denied, No. 02-3838, 2002 WL 21507775 (C.D. Cal. June 13, 2003), appeal dismissed voluntarily, No. 03-55833 (9th Cir. Aug. 26, 2003).
3. See, e.g., Ctr. for Nat'l Sec. Studies v. INS, No. 87-2068, slip op. at 14 (D.D.C. Dec. 19, 1990) (upholding agency decision to protect final contingency plan in event of attack on United States, as one of several documents that agency withheld that "relate directly to . . . agency's law enforcement duties"); see also FOIA Post, "FOIA Officers Conference Held on Homeland Security" (posted 7/3/03) (summarizing recent authority for protecting homeland security-related information).
4. 5 U.S.C. § 552(b)(7)(E).
5. See, e.g., Coleman v. FBI, No. 89-2773, slip op. at 25 (D.D.C. Dec. 10, 1991), summary affirmance granted, No. 92-5040, 1992 WL 373976 (D.C. Cir. Dec. 4, 1992); see also Burke v. United States Dep't of Justice, No. 96-1739, 1999 WL 1032814, at *8 (D.D.C. Sept. 30, 1999) (noting that Exemption 7(E) "does not require the FBI to show that disclosure of [FBI Form FD-515] ratings [of effectiveness of investigative techniques] would cause any particular harm"). But see Davin v. United States Dep't of Justice, 60 F.3d 1043, 1064 (3d Cir. 1995) (requiring in an aberrational decision, that an agency submit "evidence that specific documents it has withheld contain secret information about techniques for recruiting informants [the disclosure of which] would risk circumvention of the law").
6. See Attorney General's Memorandum on the 1986 Amendments to the Freedom of Information Act 16 n.27 (Dec. 1987) [hereinafter Attorney General's 1986 Amendments Memorandum]; see, e.g., Summers v. United States Dep't of Justice, No. 87-3168, slip op. at 11, 12, 15 (D.D.C. Apr. 19, 2000) (finding technical information about FBI's telephone surveillance to be protected by Exemption 7(E), in language implying categorical protection), on remand from 140 F.3d 1077 (D.C. Cir. 1998); Rivera v. FBI, No. 98-0649, slip op. at 9-10 (D.D.C. Aug. 31, 1999) (upholding categorical protection for bank security measures); ACLU Found. v. United States Dep't of Justice, 833 F. Supp. 399, 407 (S.D.N.Y. 1993) (The first clause of Exemption 7(E) does not "necessarily require an individualized showing for each document."); Fisher v. United States Dep't of Justice, 772 F. Supp. 7, 12 n.9 (D.D.C. 1991) (explicitly recognizing categorical protection for law enforcement techniques and procedures), aff'd, 968 F.2d 92 (D.C. Cir. 1992) (unpublished table decision); see also FOIA Update, Vol. XV, No. 2, at 3 (distinguishing between Exemption 7(E)'s two clauses).
7. See Attorney General's 1986 Amendments Memorandum at 16 n.27 (citing S. Rep. No. 98-221, at 25 (1983) (citing, in turn, H.R. Rep. No. 93-180, at 12 (1974), reprinted in 1974 U.S.C.C.A.N. 6267)); see also Campbell v. United States Dep't of Justice, No. 89-3016, slip op. at 6 (D.D.C. Aug. 6, 1997) (declaring that Exemption 7(E) applies to "obscure or secret techniques"), rev'd & remanded on other grounds, 164 F.3d 20 (D.C. Cir. 1998); Albuquerque Publ'g Co. v. United States Dep't of Justice, 726 F. Supp. 851, 858 (D. Ariz. 1989) (stating that agencies "should avoid burdening the Court with techniques commonly described in movies, popular novels, stories or magazines or television"); cf. Don Ray Drive-A-Way Co. v. Skinner, 785 F. Supp. 198, 200 (D.D.C. 1992) (finding that computer algorithm used by Department of Transportation to determine safety rating of motor carriers "does not simply involve investigative techniques or procedures" because "it has same status as regulations or agency law" and "is regularly followed in all ratings").
8. Pub. Employees for Envtl. Responsibility v. EPA, 978 F. Supp. 955, 963 (D. Colo. 1997), appeal dismissed voluntarily, No. 97-1384 (10th Cir. Nov. 25, 1997).
9. Dunaway v. Webster, 519 F. Supp. 1059, 1082-83 (N.D. Cal. 1981).
10. Ferguson v. Kelley, 448 F. Supp. 919, 926 (N.D. Ill. 1977), reconsideration denied in pertinent part, 455 F. Supp. 324 (N.D. Ill. 1978) (reiterating that methods used that are generally well known to the public do not warrant Exemption 7(E) protection).
11. Rosenfeld v. United States Dep't of Justice, 57 F.3d 803, 815 (9th Cir. 1995); see also Struth v. FBI, 673 F. Supp. 949, 970 (E.D. Wis. 1987) (dismissing pretext as merely "garden variety ruse or misrepresentation"). But see Nolan v. United States Dep't of Justice, No. 89-A-2035, 1991 WL 36547, at *8 (D. Colo. Mar. 18, 1991) (concluding that disclosure of information surrounding pretext phone call may harm ongoing investigations), aff'd on other grounds, 973 F.2d 843 (10th Cir. 1992).
12. Hamilton v. Weise, No. 95-1161, 1997 U.S. Dist. LEXIS 18900, at *30 (M.D. Fla. Oct. 1, 1997).
13. Wickline v. FBI, No. 92-1189, 1994 WL 549756, at *5 (D.D.C. Sept. 30, 1994) (quoting Parker v. United States Dep't of Justice, No. 88-0760, slip op. at 8 (D.D.C. Feb. 28, 1990), aff'd in pertinent part, No. 90-5070 (D.C. Cir. June 28, 1990)); see, e.g., Coleman v. FBI, 13 F. Supp. 2d 75, 83 (D.D.C. 1998) (protecting "manner and circumstances," but not the identities, of various techniques that are "generally known to the public"); Del Viscovo v. FBI, 903 F. Supp. 1, 3 (D.D.C. 1995) (declaring withholding of FBI accomplishment report (containing information on use and effectiveness of investigative techniques) to be "well established" and "proper"), summary affirmance granted, No. 95-5388 (D.C. Cir. Jan. 24, 1997); Buffalo Evening News, Inc. v. United States Border Patrol, 791 F. Supp. 386, 392 n.5, 393 n.6 (W.D.N.Y. 1992) (finding that Exemption 7(E) protects fact of whether alien's name is listed in INS Lookout Book); Wagner v. FBI, No. 90-1314, 1991 U.S. Dist. LEXIS 7506, at *7 (D.D.C. June 4, 1991) (holding that exemption protects detailed surveillance and undercover investigative methods and techniques), summary affirmance granted, No. 91-5220 (D.C. Cir. Aug. 3, 1992); see also Biase v. Office of Thrift Supervision, No. 93-2521, slip op. at 12 (D.N.J. Dec. 16, 1993) (upholding protection of "investigative techniques and procedures that are either not commonly known to the public, or if publicly known, their disclosure could lessen their effectiveness"). But see Goldstein v. Office of Indep. Counsel, No. 87-2028, 1998 WL 570862, at *14 (D.D.C. July 29, 1998) (finding that portions of two documents were improperly withheld, because they did not contain "a secret or an exceptional investigative technique," nor would their disclosure risk circumvention of law, and treating the age of the documents (ten and sixteen years old) as a significant factor); Campbell, No. 89-3016, slip op. at 7 (D.D.C. Aug. 6, 1997) (refusing to approve nondisclosure of particular circumstances surrounding use of "basic" techniques).
14. PHE, Inc. v. United States Dep't of Justice, No. 90-1461, slip op. at 7 (D.D.C. Jan. 31, 1991), aff'd in pertinent part, rev'd in part & remanded, 983 F.2d 248 (D.C. Cir. 1993); see, e.g., Shores v. FBI, 185 F. Supp. 2d 77, 84 (D.D.C. 2002) (protecting details of surveillance operations at federal prison, including information about telephone system); Hassan v. FBI, No. 91-2189, 1992 U.S. Dist. LEXIS 22655, at *12 (D.D.C. July 13, 1992) (protecting common techniques used with uncommon technique to achieve unique investigative goal), summary affirmance granted, No. 92-5318 (D.C. Cir. Mar. 17, 1993); Beck v. United States Dep't of the Treasury, No. 88-493, slip op. at 26 (D.D.C. Nov. 8, 1989) (approving nondisclosure of certain documents, including map, because disclosure would reveal surveillance technique used by Customs Service, as well as why certain individuals were contacted with regard to investigations), aff'd, 946 F.2d 1563 (D.C. Cir. 1992) (unpublished table decision).
15. See, e.g., Hale v. United States Dep't of Justice, 973 F.2d 894, 902-03 (10th Cir. 1992) (concluding that disclosure of "polygraph matters" could lessen effectiveness), cert. granted, vacated & remanded on other grounds, 509 U.S. 918 (1993); Piper v. United States Dep't of Justice, 294 F. Supp. 2d 16, 30 (D.D.C. 2003) (declaring that polygraph materials were properly withheld because their release would reveal sensitive "logistical considerations"), reconsideration denied, No. 98-1161, 2004 U.S. Dist. LEXIS 5624 (D.D.C. Mar. 26, 2004); Edmonds v. FBI, 272 F. Supp. 2d 35, 56 (D.D.C. 2003) (deciding that the FBI's declaration "convincingly describes how the release of this information might create a risk of circumvention of the law"); Shores, 185 F. Supp. 2d at 85 (determining that FBI properly withheld polygraph information to preserve effectiveness of polygraph examinations); Blanton v. United States Dep't of Justice, 63 F. Supp. 2d 35, 49-50 (D.D.C. 1999) (finding that disclosing certain polygraph information -- e.g., "sequence of questions" -- would allow individuals to employ countermeasures), aff'd, 64 Fed. Appx. 787 (D.C. Cir. 2003); Coleman, 13 F. Supp. 2d at 83 (holding that disclosure of behavioral science analysis and details of polygraph examination would frustrate enforcement of law); Perrone v. FBI, 908 F. Supp. 24, 28 (D.D.C. 1995) (finding that release of precise polygraph questions and their sequence would allow circumvention of examination).
16. See, e.g., LaRouche v. United States Dep't of Justice, No. 90-2753, slip op. at 21 (D.D.C. Nov. 17, 2000) (rejecting plaintiff's argument that information regarding techniques for undercover work must be released, because even "widely known techniques" are entitled to protection when their disclosure would negatively impact future investigations); Rosenberg v. Freeh, No. 97-0476, slip op. at 17 (D.D.C. May 13, 1998) (protecting "information on the use of false identities for undercover special agents," because disclosure "could significantly reduce [the] future effectiveness of this investigative technique"), aff'd, No. 99-5209, 1999 WL 1215961 (D.C. Cir. Nov. 12, 1999).
17. See, e.g., Burke v. DEA, No. 96-1739, slip op. at 9 (D.D.C. Mar. 30, 1998) (upholding Postal Service's refusal to disclose detailed description of surveillance techniques); Steinberg v. United States Dep't of Justice, No. 93-2409, slip op. at 15-16 (D.D.C. July 14, 1997) (approving nondisclosure of precise details of telephone and travel surveillance despite fact that criminals know that such techniques are used generally); Butler v. Dep't of the Treasury, No. 95-1931, 1997 WL 138720, at *4 (D.D.C. Jan. 14, 1997) (reasoning that disclosing methods of monitoring and type of equipment used could enable future targets to avoid surveillance).
18. See, e.g., Hale, 973 F.2d at 902-03 (concluding that disclosure of use of security devices and their modus operandi could lessen their effectiveness); Bowen v. FDA, 925 F.2d 1225, 1228 (9th Cir. 1991) (deciding that release of specifics of cyanide-tracing techniques would present serious threat to future product-tampering investigations); Piper, 294 F. Supp. 2d at 31 (finding that FBI's invocation of Exemption 7(E) was proper in order to protect utility of sensitive electronic monitoring devices not widely known to public); Sinito v. United States Dep't of Justice, No. 87-0814, slip op. at 27-29 (D.D.C. July 12, 2000) (holding that disclosure of information about "electronic recording device" (a body microphone) "would impair FBI's ability to conduct future investigations"), summary affirmance granted, No. 00-5321 (D.C. Cir. Apr. 11, 2001); Burke, No. 96-1739, 1999 WL 1032814, at *8 (D.D.C. Sept. 30, 1999) (finding FBI redaction of Form FD-515 ratings to be necessary to prevent criminals from developing countermeasures against FBI techniques); Peralta v. United States Attorney's Office, 69 F. Supp. 2d 21, 35 (D.D.C. 1999) (upholding redaction of FBI Forms FD-515, as well as information that would identify radio channels used during surveillance and transmitter numbers used to monitor conversations, in order "to prevent potential harm to future law enforcement activities"); Pons v. United States Customs Serv., No. 93-2094, 1998 U.S. Dist. LEXIS 6084, at *18 (D.D.C. Apr. 23, 1998) (protecting "cooperative arrangements between Customs and other law enforcement agencies" to keep them effective); Code v. FBI, No. 95-1892, 1997 WL 150070, at *8 (D.D.C. Mar. 26, 1997) (recognizing that disclosure of criminal personality profiles could assist criminals in evading detection); Pray v. Dep't of Justice, 902 F. Supp. 1, 4 (D.D.C. 1995) (concluding that release of information about particular investigative techniques and their effectiveness in FBI accomplishment report could enable criminals to employ countermeasures to neutralize their effectiveness), summary affirmance granted in pertinent part, 1996 WL 734142 (D.C. Cir. Nov. 20, 1996); Fisher, 772 F. Supp. at 12 (finding that disclosure could alert subjects of investigation about FBI techniques); see also FOIA Update, Vol. V, No. 2, at 5 (discussing scope of Exemption 7(E) protection as encompassing "obscure or secret techniques"); cf. Billington v. United States Dep't of Justice, 69 F. Supp. 2d 128, 140 (D.D.C. 1999) (granting summary judgment to FBI where "plaintiff . . . offer[ed] no more than an unsubstantiated guess that a 'photo album' or common technique [was] withheld"), aff'd in pertinent part & remanded, 233 F.3d 581 (D.C. Cir. 2000). But cf. Linn v. United States Dep't of Justice, No. 92-1406, 1995 WL 417810, at *26 (D.D.C. June 5, 1995) (rejecting invocation of Exemption 7(E) because no justification was provided to show how release of commonly known technique could interfere with future law enforcement efforts).
19. See, e.g., Cohen v. Smith, No. 81-5365, slip op. at 8 (9th Cir. Mar. 25, 1983) (protecting details of telephone interviews); Laroque v. United States Dep't of Justice, No. 86-2677, 1988 WL 75942, at *3 (D.D.C. July 12, 1988) (protecting "reason codes" and "source codes" in State Department "lookout notices"); U.S. News & World Report v. Dep't of the Treasury, No. 84-2303, 1986 U.S. Dist. LEXIS 27634, at *8 (D.D.C. Mar. 26, 1986) (protecting Secret Service's contract specifications for President's armored limousine); Windels, Marx, Davies & Ives v. Dep't of Commerce, 576 F. Supp. 405, 413-14 (D.D.C. 1983) (alternative holding) (shielding computer program used to detect antidumping law violations); Hayward v. United States Dep't of Justice, 2 Gov't Disclosure Serv. (P-H) ¶ 81,231, at 81,646 (D.D.C. July 14, 1981) (protecting methods and techniques used by U.S. Marshals Service to relocate protected witnesses); Malloy v. United States Dep't of Justice, 457 F. Supp. 543, 545 (D.D.C. 1978) (protecting details concerning "bait money" and "bank security devices"); Ott v. Levi, 419 F. Supp. 750, 752 (E.D. Mo. 1976) (protecting laboratory techniques used in arson investigation).
20. See, e.g., Bowen, 925 F.2d at 1228 (ruling that release of specifics of cyanide-tracing techniques would present serious threat to future product-tampering investigations); Judicial Watch, Inc. v. FBI, No. 00-745, slip op. at 15-17 (D.D.C. Apr. 20, 2001) (protecting the "identities of two types of [FBI] records concerning prison inmates," the release of which would enable inmates "to alter their activities[,] thus hindering the effectiveness of this technique"); Peyton v. Reno, No. 98-1457, 2000 U.S. Dist. LEXIS 873, at *3 (D.D.C. Jan. 6, 2000) (protecting Discriminant Function Scores used to select tax returns for evaluation); Klunzinger v. IRS, 27 F. Supp. 2d 1015, 1027-28 (W.D. Mich. 1998) (upholding protection of documents which, if disclosed, would "reveal confidential information regarding when the IRS would undertake compliance activity"); Becker v. IRS, No. 91-C-1203, 1992 WL 67849, at *6 (N.D. Ill. Mar. 27, 1992) (protecting techniques used by IRS to identify and investigate tax protestors), aff'd, 34 F.3d 398 (7th Cir. 1994).
21. See, e.g., McQueen v. United States, 264 F. Supp. 2d 502, 521 (S.D. Tex. 2003) (finding that requested documents show "details [that], by themselves, would reveal law enforcement techniques" and thus were properly withheld) (appeal pending); Butler, 1997 WL 138720, at *4 (observing that "[i]t is sometimes impossible" to describe secret law enforcement techniques without disclosing information sought to be withheld); Soto v. DEA, No. 90-1816, slip op. at 7 (D.D.C. Apr. 13, 1992) (concluding that detailed description of technique pertaining to detection of drug traffickers would effectively disclose it); cf. Prescott v. Dep't of Justice, No. 00-187, slip op. at 5, 11 (D.D.C. Aug. 10, 2001) (upholding the redaction of FBI Form FD-515 because the FBI specified the potential harm in release, while rejecting another agency's invocation of Exemption 7(E) to withhold other "'information regarding investigative techniques and procedures'" (quoting agency's declaration) because the other agency "merely reiterated the statutory language").
22. See, e.g., Jones v. FBI, 41 F.3d 238, 249 (6th Cir. 1994) (concluding, upon in camera review, that investigative techniques were properly withheld); Palacio v. United States Dep't of Justice, No. 00-1564, 2002 U.S. Dist. LEXIS 2198, at *29 (D.D.C. Feb. 11, 2002) (ordering FBI to submit for in camera review either documents at issue or detailed declaration), summary affirmance granted on other grounds, No. 02-5247, 2003 U.S. App. LEXIS 1804 (D.C. Cir. Jan. 31, 2003); Allnutt v. Dep't of Justice, No. 98-901, 2000 WL 852455, at *2 (D. Md. Oct. 23, 2000) (finding, upon in camera review, that computer command codes used to access federal databases were properly deleted), aff'd sub nom. Allnutt v. Handler, 8 Fed. Appx. 225 (4th Cir. 2001); Pub. Employees for Envtl. Responsibility, 978 F. Supp. at 961 (concluding, upon in camera review, that certain documents must be released while others may be withheld); Campbell v. United States Dep't of Justice, No. 89-3016, 1996 WL 554511, at *10 (D.D.C. Sept. 19, 1996) (directing in camera submission of technique information at issue); Linn v. United States Dep't of Justice, No. 92-1406, 1997 WL 577586, at *4 (D.D.C. May 29, 1997) (determining that in camera inspection was necessary because DEA had not provided specific, nonconclusory explanation to justify withholding of material it identified as law enforcement technique); Rojem v. United States Dep't of Justice, 775 F. Supp. 6, 12 (D.D.C. 1991) (ordering in camera inspection), subsequent decision, No. 90-3021 (D.D.C. Oct. 31, 1991) (upholding Exemption 7(E) upon in camera inspection), appeal dismissed for failure to timely file, No. 92-5088 (D.C. Cir. Nov. 4, 1992); cf. Smith v. ATF, 997 F. Supp. 496, 501 (D.D.C. 1997) (requiring an in camera declaration to address "why the release of the information deleted . . . would compromise law enforcement").
23. Pub. L. No. 99-570, § 1802, 100 Stat. 3207, 3207-48, 3207-49.
24. Pub. L. No. 93-502, 88 Stat. 1561, 1563 (1974).
25. 5 U.S.C. § 552(b)(7)(E).
26. Id.; see Attorney General's 1986 Amendments Memorandum at 15; see also Nowak v. IRS, No. 98-56656, 2000 WL 60067, at **1-2 (9th Cir. 2000) (unpublished table decision) (affirming the district court's conclusion "that the redacted information, if disclosed, 'would significantly hamper the defendant's tax collection and law enforcement functions, and facilitate taxpayer circumvention of federal Internal Revenue laws'"); Tran v. United States Dep't of Justice, No. 01-0238, 2001 WL 1692570, at *3 (D.D.C. Nov. 20, 2001) (concluding that INS form -- used when agencies share information from immigration records -- was properly withheld because it would reveal law enforcement techniques); Unger v. Dist. Disclosure Office IRS, No. 99-698, 2000 U.S. Dist. LEXIS 5260, at *5 (N.D. Ohio Mar. 28, 2000) (finding that IRS properly withheld references to "specific dollar tolerance" used as "threshold in determining whether to prosecute"); Guerrero v. DEA, No. 93-2006, slip op. at 14-15 (D. Ariz. Feb. 22, 1996) (holding that Exemption 7(E) properly protects portions of DEA Agents Manual concerning undercover operations, confidential informant codes, surveillance devices, and enforcement and security procedures); Hammes v. United States Customs Serv., No. 94 Civ. 4868, 1994 WL 693717, at *1 (S.D.N.Y. Dec. 9, 1994) (protecting Customs Service criteria used to determine which passengers to stop and examine). But see Feshbach v. SEC, 5 F. Supp. 2d 774, 786 & n.11 (N.D. Cal. 1997) (finding the SEC's reasons for withholding checklists and internal database to be conclusory and insufficient); Cowsen-El v. United States Dep't of Justice, 826 F. Supp. 532, 533-34 (D.D.C. 1992) (finding Bureau of Prisons program statement to be internal policy document wholly unrelated to investigations or prosecutions).
27. See Attorney General's 1986 Amendments Memorandum at 16; accord Attorney General's Memorandum for Heads of All Federal Departments and Agencies Regarding the Freedom of Information Act (Oct. 12, 2001) [hereinafter Attorney General Ashcroft's FOIA Memorandum], reprinted in FOIA Post (posted 10/15/01) (emphasizing the fundamental societal value of "enhancing the effectiveness of our law enforcement agencies"); see, e.g., Guerrero, No. 93-2006, slip op. at 14-15 (D. Ariz. Feb. 22, 1996) (approving nondisclosure of portions of DEA Agents Manual); Church of Scientology Int'l v. IRS, 845 F. Supp. 714, 723 (C.D. Cal. 1993) (concluding that parts of IRS Law Enforcement Manual concerning "procedures for handling applications for tax exemption and examinations of Scientology entities" and memorandum regarding application of such procedures were properly withheld); Williston Basin Interstate Pipeline Co. v. FERC, No. 88-592, 1989 WL 44655, at *2 (D.D.C. Apr. 17, 1989) (finding portions of regulatory audit describing significance of each page in audit report, investigatory technique utilized, and auditor's conclusions to constitute "the functional equivalent of a manual of investigative techniques").
28. 5 U.S.C. § 552(b)(7)(E).
29. See, e.g., Schwarz v. United States Dep't of Treasury, 131 F. Supp. 2d 142, 150 (D.D.C. 2000) (finding Secret Service information evaluating personal characteristics and threat potential of individuals to be "clearly exempt from disclosure" under both Exemptions 2 and 7(E)), summary affirmance granted, No. 00-5453 (D.C. Cir. May 10, 2001); see also Berg v. Commodity Futures Trading Comm'n, No. 93 C 6741, slip op. at 11 n.2 (N.D. Ill. June 23, 1994) (magistrate's recommendation) ("[I]t would appear that exemption (b)(7)(E) is essentially a codification of the 'high 2' exemption."), accepted & dismissed per stipulation (N.D. Ill. July 26, 1994); see also FOIA Update, Vol. XV, No. 2, at 3.
30. 591 F.2d 753, 771 (D.C. Cir. 1978) (en banc).
31. See S. Rep. No. 98-221, at 25 (1983); see Attorney General's 1986 Amendments Memorandum at 16-17; see also Don Ray Drive-A-Way, 785 F. Supp. at 200 & n.1 (finding that disclosure of safety ratings system is necessary to permit regulated entities to know what agency considers to be most serious safety breaches).
32. See Buckner v. IRS, 25 F. Supp. 2d 893, 899 (N.D. Ind. 1998) (noting that "the age of the [DIF] scores is of no consequence" in upholding protection of Discriminant Function Scores used to evaluate tax returns).
33. See, e.g., PHE, 983 F.2d at 251 (holding "release of FBI guidelines as to what sources of information are available to its agents might encourage violators to tamper with those sources of information and thus inhibit investigative efforts"); Carp v. IRS, No. 00-5992, 2002 U.S. Dist. LEXIS 2921, at *16 (D.N.J. Jan. 28, 2002) (concluding, after in camera review, that disclosure "would risk circumvention of the law by exposing specific, non-routine investigative techniques used by the IRS to uncover tax fraud"); Tax Analysts v. IRS, 152 F. Supp. 2d 1, 17 (D.D.C. 2001) (determining that disclosure of summary of tax-avoidance scheme, "including identification of vulnerabilities" in IRS operations, could risk circumvention of law); Wishart v. Comm'r, No. 97-20614, 1998 WL 667638, at *17 (N.D. Cal. Aug. 6, 1998) (protecting Discriminant Function Scores to avoid possibility that "taxpayers could manipulate" return information to avoid IRS audits), aff'd, 199 F.3d 1334 (9th Cir. 1999) (unpublished table decision); Voinche v. FBI, 940 F. Supp. 323, 331 (D.D.C. 1996) (alternative holding) (upholding nondisclosure of Criminal Intelligence Digest used to assist and guide FBI personnel), aff'd per curiam, No. 96-5304, 1997 U.S. App. LEXIS 19089 (D.C. Cir. June 19, 1997); Jimenez v. FBI, 938 F. Supp. 21, 27 (D.D.C. 1996) (approving invocation of Exemption 7(E) to protect gang-validation criteria used by Bureau of Prisons to determine whether individual is gang member); Foster v. United States Dep't of Justice, 933 F. Supp. 687, 693 (E.D. Mich. 1996) (holding that release of techniques and guidelines used in undercover operations would diminish their effectiveness); Pully v. IRS, 939 F. Supp. 429, 437 (E.D. Va. 1996) (finding that release of discriminant function scores would enable taxpayers to "flag" IRS computers); Silber v. United States Dep't of Justice, No. 91-876, transcript at 25 (D.D.C. Aug. 13, 1992) (bench order) (ruling that disclosure of monograph on fraud litigation "would present the specter of circumvention of the law"); Ctr. for Nat'l Sec. Studies, No. 87-2068, slip op. at 14 (D.D.C. Dec. 19, 1990) (recognizing that release of INS plans to be deployed in event of attack on U.S. could assist terrorists in circumventing border control). But see also Church of Scientology v. IRS, 816 F. Supp. 1138, 1162 (W.D. Tex. 1993) (holding that IRS did not establish how release of records "regarding harassment of Service employees" written during investigation "could reasonably be expected to circumvent the law"), appeal dismissed per stipulation, No. 93-8431 (5th Cir. Oct. 21, 1993).
34. S. Rep. No. 98-221, at 25 (1983); see Attorney General's 1986 Amendments Memorandum at 17; see also NARA v. Favish, 124 S. Ct. 1570, 1579 (2004) (evincing the Supreme Court's reliance on "the Attorney General's consistent interpretation of" the FOIA in successive such Attorney General memoranda).
35. 670 F.2d 1051 (D.C. Cir. 1981).
36. See, e.g., PHE, 983 F.2d at 252 (finding that the Department of Justice's National Obscenity Enforcement Unit failed to submit an affidavit containing "precise descriptions of the nature of the redacted material and providing reasons why releasing each withheld section would create a risk of circumvention of the law"); Leveto v. IRS, No. 98-285, 2001 U.S. Dist. LEXIS 5791, at *21 (W.D. Pa. Apr. 10, 2001) (protecting dollar amount budgeted for agency to investigate particular individual, because release could allow others to learn agency's monetary limits and undermine such investigations in future); Linn, 1995 WL 417810, at *32 (affirming nondisclosure of one page from Drug Agent's Guide to Forfeiture of Assets on basis that agency explained harm).
37. See PHE, 983 F.2d at 252 (finding that agency must "clearly indicate why disclosable material could not be segregated from exempted material"); see, e.g., Wightman v. ATF, 755 F.2d 979, 982-83 (1st Cir. 1985) (remanding for determination of segregability) (Exemption 2); Schreibman v. United States Dep't of Commerce, 785 F. Supp. 164, 166 (D.D.C. 1991) (requiring agency to segregate and release portions of documents that merely identify computer systems rather than contain security plans, which remain protected as vulnerability assessments) (Exemption 2); see also FOIA Update, Vol. XIV, No. 3, at 11-12 ("OIP Guidance: The 'Reasonable Segregation' Obligation").
38. See Attorney General Ashcroft's FOIA Memorandum, reprinted in FOIA Post (posted 10/15/01) (emphasizing that agencies should "carefully consider the protection of," inter alia, law enforcement interests when reviewing law enforcement records).
39. See, e.g., Living Rivers, 272 F. Supp. 2d at 1321 (concluding that maps of flooding likely to result from damage to Hoover Dam or Glen Canyon Dam were properly withheld under Exemption 7(F), instead of under Exemption 2 or Exemption 7(E), due largely to narrow interpretation of law within particular judicial circuit).
40. Ctr. for Nat'l Sec. Studies, No. 87-2068, slip op. at 14 (D.D.C. Dec. 19, 1990) (according Exemption 7(E) protection to final contingency plan in event of attack on United States, to guidelines for response to terrorist attacks, and to contingency plans for immigration emergencies).
41. Voinche, 940 F. Supp. at 328, 331 (approving the nondisclosure of information "relating to the security of the Supreme Court building and the security procedures for Supreme Court Justices "on the basis of both Exemptions 2 and 7(E)); U.S. News & World Report, 1986 U.S. Dist. LEXIS 27634, at *8 (upholding protection of Secret Service's contract specifications for President's armored limousine); Hayward, 2 Gov't Disclosure Serv. (P-H), at 81,646 (protecting methods and techniques used by Marshals Service to relocate protected witnesses).
42. See FOIA Post, "FOIA Officers Conference Held on Homeland Security" (posted 7/3/03) (summarizing recent authority for protecting homeland security-related information).
43. Accord Attorney General Ashcroft's FOIA Memorandum, reprinted in FOIA Post (posted 10/15/01) ("I encourage your agency to carefully consider the protection of all [applicable] values and interests when making disclosure determinations under the FOIA.").
44. See, e.g., Living Rivers, 272 F. Supp. 2d at 1320-22 (treating Department of the Interior's Bureau of Reclamation as readily falling into FOIA's law enforcement category, even though protection was afforded under Exemption 7(F) rather than under Exemption 7(E)); cf. FOIA Post, "New Attorney General FOIA Memorandum Issued" (posted 10/15/01) (discussing the "need to protect critical systems, facilities, stockpiles, and other assets from security breaches and harm -- and in some instances from their potential use as weapons of mass destruction in and of themselves," as well as "any agency information that could enable someone to succeed in causing the feared harm").
45. See Boyd v. DEA, No. 01-0524, slip op. at 7-8 (D.D.C. Mar. 8, 2002) (upholding protection under both clauses of Exemption 7(E) for highly sensitive research analysis in intelligence report properly withheld by FinCEN, Financial Crimes Enforcement Network of United States Department of the Treasury); see also Hammes, 1994 WL 693717, at *1 (protecting Customs Service criteria used to determine which passengers to stop and examine).
46. See Attorney General's 1986 Amendments Memorandum at 15-16 & n.27; see also Rivera, No. 98-0649, slip op. at 9-10 (D.D.C. Aug. 31, 1999) (upholding categorical protection for bank security measures).
47. See Attorney General's 1986 Amendments Memorandum at 17 & n.31.
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