FOIA Update
Vol. V, No. 2
1984

FOIA Counselor

One of the most valuable FOIA protections available to members of the law enforcement community is Exemption 7(A), which protects "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A). The narrowing of Exemption 7's coverage through the 1974 FOIA Amendments reflected deep congressional concern over extending complete and indefinite protection to law enforcement records. Congress addressed this concern by limiting the "blanket" protection previously available under Exemption 7 to only the period during which law enforcement proceedings are actually contemplated or pending. Although the applicability of Exemption 7(A) is thus entirely temporal, its scope is broad enough to provide categorical or "generic" protection for most documents in an agency's open investigatory files.

In the leading Exemption 7(A) precedent, NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978), the Supreme Court found support in both the FOIA's statutory language and legislative history for its conclusion that "Congress did not intend to prevent the federal courts from determining that, with respect to particular kinds of enforcement proceedings, disclosure of particular kinds of investigatory records while a case is pending would generally 'interfere with enforcement proceedings.'" 437 U.S. at 236. The Court found that the release of various witness statements, when considered as a category or "particular kind" of material, would interfere with the government's unfair labor practice action by giving the adverse party "earlier and greater access" to the NLRB's case. Id. at 241. It thus specifically approved the use of "generic determinations" in Exemption 7(A) cases. Id. at 236.

Since Robbins Tire, almost all courts that have been requested to do so have accepted the principle of generic categorization under Exemption 7(A). See, e.g., J.P. Stevens & Co. v. Perry, 710 F.2d 136, 141-43 (4th Cir. 1983) (reversing document-by-document in camera review); Campbell v. HHS, 682 F.2d 256, 265 (D.C. Cir. 1982) (government may "focus upon categories of records"); Barney v. IRS, 618 F.2d 1268, 1273 (8th Cir. 1980) (specific factual showing regarding each withheld document not required); Freedberg v. Department of the Navy, 581 F. Supp. 3, 4 (D.D.C. 1982) (Exemption 7(A) generic determinations may be made).

Although at first glance a generic approach might seem at variance with the detailed document itemization customarily required by Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), a categorical Exemption 7(A) statement is actually the only effective method of addressing the contents of most large, open investigatory files while still protecting the agency from the risks of a premature disclosure. See Kacilauskas v. Department of Justice, 565 F. Supp. 546, 549 (N.D. Ill. 1983) (preparation of a detailed Vaughn index would create the "very risks" Exemption 7(A) was designed to prevent); Parker/Hunter, Inc. v. SEC, 2 GDS ¶ 81,167 at 81,443 (D.D.C. 1981) (motion for Vaughn index denied because requirements to justify nondisclosure under Exemption 7(A) are "quite different"); Murphy v. FBI, 490 F. Supp. 1138, 1143-45 (D.D.C.) (detailed Vaughn index would undercut purpose of claimed exemptions), summary judgment vacated as moot, No. 80-1612 (D.C. Cir. 1980).

Ironically, the circuit in which Robbins Tire originated is the only one which has wavered in following the line of cases applying the Robbins Tire generic Exemption 7(A) approach. In Stephenson v. IRS, 629 F.2d 1140, 1144-46 (5th Cir. 1980), the Fifth Circuit Court of Appeals flatly held that the government's generic affidavit was an insufficient substitute for sanitized indexing, random or representative sampling in camera, oral testimony, or combinations thereof. This is particularly puzzling in light of the Fifth Circuit's prior wholehearted acceptance of the categorical approach in Moorefield v. United States Secret Service, 611 F.2d 1021, 1026 (5th Cir.), cert. denied, 449 U.S. 909 (1980). Moreover, the Stephenson decision has been criticized as flowing against the "judicial tide" of "all post-Robbins district and appellate court decisions." Kacilauskas v. Department of Justice, 565 F. Supp. at 548-49. But see also Martinez v. FBI, 3 GDS ¶ 83,208 at 83,914-15 (D.D.C. 1983) (following Stephenson minority view).

For the most part, however, there is general accord that the generic affidavit is the appropriate format for justifying nondisclosure under Exemption 7(A). Such affidavits must list the specific categories or types of documents in the file and explain how disclosure would "interfere" with the pending enforcement proceeding, giving clear statements of potential harm, but only category by category. Examples of categories that have been judicially approved include interviews with potential witnesses, agent notes, laboratory tests, consultant's reports and prosecution memoranda. In fact, a number of courts have specifically set forth the categories within their opinions. See, e.g., J.P. Stevens & Co. v. Perry, 710 F.2d at 142-43; Barney v. IRS, 618 F.2d at 1272 n.9; Kacilauskas v. Department of Justice, 565 F. Supp. at 547-48; Steinberg v. IRS, 463 F. Supp. 1272, 1273 (S.D. Fla. 1979). But see also Eisenberg v. Department of Justice, 2 GDS ¶ 81,034 at 81,088 (D.D.C. 1980) (government prevailed even without dividing the documents into "manageable parts"), aff'd, No. 81-1314 (D.C. Cir. Nov. 27, 1981). While overly broad categories should be eschewed, care must always be taken not to be so specific as to cause the very harm sought to be avoided. See Kacilauskas v. Department of Justice, 565 F. Supp. at 549.

As for the potential harms properly cognizable under Exemption 7(A), the Supreme Court found in Robbins Tire, for example, that premature release of information to a target would allow it to harass or intimidate witnesses. See 437 U.S. at 241. Subsequent Exemption 7(A) cases have involved a wider range of potential harms. See, e.g., J.P. Stevens & Co. v. Perry, 710 F.2d at 143 ("chilling effect" on potential witnesses, interference with free flow of information between agencies, lessened ability to "shape and control" investigation, more difficulty for the agency in performing future investigations); Ostrer v. FBI, Civil No. 83-0328, slip op. at 5 (D.D.C. Sept. 22, 1983) (suspect could engage in "destruction or alteration of evidence that remains to be discovered" and could "establish fraudulent alibis") (appeal pending); Murphy v. FBI, 490 F. Supp. at. 1143 (disclosure would "alert other potential defendants as to the nature of the evidence held against them").

Where an agency fails to provide a satisfactory categorization of the documents or explanation of potential harm, the courts typically request a supplemental affidavit. See, e.g., Campbell v. HHS, 682 F.2d at 265 (remanded with respect to one of several categories of records for further explanation of potential harm); Hatcher v. United States Postal Service, 556 F. Supp. 331, 332 (D.D.C. 1982) (more specific categorization found necessary); Parker/Hunter, Inc. v. SEC, 2 GDS ¶ 81,168 at 81,445-48 (D.D.C. 1981) (agency permitted to submit supplemental affidavit stating more specifically how disclosure would cause harm, category by category).

Because it provides a unique opportunity to treat large, pending investigatory files in manageable segments, the generic approach -- both as to the nature of the documents and as to the potential harms likely to result from their release -- is an extremely economical one. Such a valuable technique, especially now that it has enjoyed growing acceptance in the courts, should be carefully considered for possible use at both the administrative and litigative levels in all Exemption 7(A) cases.

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