When Agencies Misuse FOIA’s Law Enforcement Exemption

(Illustration: Leslie Garvey / POGO)

The Freedom of Information Act (FOIA) is a powerful tool to compel the federal government to produce information about policies, programs, spending, and inner workings. Anyone can request information by sending an email, letter, or message through an online portal to a federal executive branch agency and asking for records. But baked into the law are nine exemptions that allow the government to withhold or redact records. Among the nine is one exemption that allows classified information to be withheld and another that shields trade secrets from disclosure.

The exemption used the most, by far, is the law enforcement exemption, which broadly exists to shield certain information whose release could undermine law enforcement interests. And it has sometimes been used beyond its expiration date to conceal information that should have been released.

Out of all FOIA exemptions used in fiscal year 2020, the law enforcement exemption was used 58.6% of the time, according to a Project On Government Oversight (POGO) analysis of data on A January report by the Government Accountability Office revealed a similar rate of 55.5% for fiscal year 2019, and independent researchers have found it was among the most commonly used in prior years. Use of the law enforcement exemption even surpasses use of the exemption allowing for the withholding of deliberative and pre-decisional information, which, as POGO wrote last year, is especially prone to abuse (and a recent Supreme Court decision may embolden agencies to use it even more).

The law enforcement exemption, known as Exemption 7, details six categories of information that can be withheld. Underscoring the distinct legal analysis that applies to each of these categories, there are multiple chapters on them in the Justice Department’s guide to FOIA. When a federal agency invokes the law enforcement exemption, it cites the subsection of the exemption being used, such as 7(A) or 7(C).

Out of all FOIA exemptions used in fiscal year 2020, the law enforcement exemption was used 58.6% of the time.

In the last fiscal year, the top three law enforcement exemption categories invoked by agencies were those used to protect personal privacy information in law enforcement records (exemption 7(C)); to protect law enforcement techniques and procedures (exemption 7(E)); and to protect information that could interfere with law enforcement proceedings (exemption 7(A)).

Regarding exemption 7(A), the Justice Department’s FOIA guidance states, citing a 1978 federal appeals court decision, “It is beyond question that Exemption 7(A) is temporal in nature and is not intended to ‘endlessly protect material simply because it [is] in an investigatory file.’”

Even if a law enforcement proceeding is active, the Justice Department also says agencies need to assess “whether release of information about it could reasonably be expected to cause some articulable harm” before invoking 7(A). It also bears mentioning that even after an agency is no longer invoking 7(A) for certain records or information, it can still withhold that material on the basis of other exemptions.

But there have been instances where agencies appear to have used the 7(A) exemption to shield records from release after law enforcement cases have been closed or where an agency may not have checked to determine if the case is still open. While courts have allowed the exemption to be used in some situations where an investigation is closed, if there is no “ongoing agency oversight or continuing enforcement-related responsibility, courts do not permit an agency to continue the use of Exemption 7(A) to protect information,” according to the Justice Department.

One case involves a FOIA request sent by BuzzFeed News reporter Jason Leopold to the FBI for records pertaining to threatening calls made in 2009 to an attorney representing investors who collectively lost over a billion dollars they poured into Donald Trump’s casino business in the 1990s. Some of the documents Leopold received from the FBI were “tagged with a code indicating that the bureau was withholding information because its investigation into the incident was ongoing,” according to a 2017 article by Leopold. That code is exemption 7(A). But, according the article, “a day after Buzzfeed News asked for confirmation that the investigation was still continuing, the FBI sent a letter saying that use of the code indicating an ongoing investigation had been ‘inadvertent.’”

It is beyond question that Exemption 7(A) is temporal in nature and is not intended to ‘endlessly protect material simply because it [is] in an investigatory file.’

Justice Department guidance on FOIA

In March 2017, the FBI invoked 7(A) in response to a FOIA request by the nonprofit MuckRock for records related to the 1991 death of journalist Danny Casolaro. After MuckRock appealed, the FBI changed its position in a letter dated August 23, 2017 and stated that 7(A) no longer applied. The FBI never explained to MuckRock why its position changed, though the group sought clarification, and experts were split on whether the decades-old case might have just happened to have closed in the intervening eight months or whether the FBI improperly invoked the exemption. However, MuckRock’s Emma North-Best wrote that, “every explanation except the investigation remaining open until 2017 involves the FBI acting improperly or incompetently.” (Emphasis MuckRock’s.)

In a FOIA matter that led the nonprofit Citizens for Responsibility and Ethics in Washington (CREW) to sue, the Justice Department withheld records related to former FBI Deputy Director Andrew McCabe. The Justice Department cited 7(A) into late 2019 to withhold the records even though the department’s Office of Inspector General had finished its investigation in 2018 into McCabe’s role in disclosing “certain law enforcement sensitive information” to the press. After a federal judge ordered a Justice Department prosecutor to explain the rationale for the continuing use of 7(A) to withhold records, the department changed its position and filed a motion saying it would no longer cite 7(A).

“The government’s conduct and its months-long insistence that disclosing documents from the long-closed IG investigation would harm an ongoing investigation raise serious questions about the government’s conduct and the extent to which it may have abused court processes to advance its own interests over those of the public,” wrote CREW attorneys Anne Weismann and Adam Rappaport in a court filing. (Weismann is now an outside FOIA counsel for POGO.)

POGO had its own recent confounding run-in with 7(A). On January 26, the Pentagon’s Defense Logistics Agency (DLA) fully denied a FOIA request by POGO for records in the possession of the agency’s watchdog office related to a company known as Atlantic Diving Supply, or ADS, Inc. The agency cited a “law enforcement proceeding pending” as the basis for the denial.

It shouldn’t take FOIA appeals and press coverage for agencies to provide information to the public.

POGO sought more details about the pending law enforcement proceeding from the agency. In an emailed statement sent by a DLA public affairs officer on February 11, the agency told POGO that it had provided “investigative support based on requests from a federal and a defense criminal investigative organization.” The statement did not provide details on the role, if any, of the subjects of the document request in the matter.

“We were informed their investigations remain active,” the agency spokesperson said in the emailed statement. “Therefore, any DLA records that may be responsive to your request remain unreleasable at this time.”

But then the DLA changed its tune. In a statement sent to the Washington Post the next week, the agency stated that its support to law enforcement agencies “was initiated in 2016 and no investigative support has been provided since 2018. We hold this type of action in an open status until the supported agency reports no further assistance is required.”

“While DLA understands that these actions remain open, we are unaware of whether these actions are currently being actively investigated,” the agency stated. It is unclear if DLA did not check, if it had been provided inaccurate or unclear information, or if there is some other explanation.

The company, ADS, adamantly denied it was under investigation. “I can say unequivocally that ADS is not the subject or target of any investigation by a federal and defense criminal investigation,” the company’s general counsel Adam Casagrande stated in an email to POGO. In response to the Washington Post, Casagrande said “members of the United States Government that would or should know of any such investigations” told ADS it is not under active investigation.

A thread running through at least some of these instances of law enforcement exemption cases relates to agencies not adequately checking on the status of an investigation before withholding information. It shouldn’t take FOIA appeals and press coverage for agencies to provide information to the public. The burden is on the government, but too often the default setting is to deny access and hope that people go away.