NCJ Number
85579
Journal
Minnesota Law Review Volume: 65 Issue: 5 Dated: (1981) Pages: 1139-1168
Date Published
1981
Length
30 pages
Annotation
This article describes the focus of the Freedom of Information Act, summarizes the development of Exemption 7, analyzes judicial application of the exemption, and proposes an alternative approach to application.
Abstract
The basic mandate of the Freedom of Information Act is that each Federal agency must, upon request, disclose its records to any person unless the information contained in the records is specifically exempted by the act. Exemption 7 protects investigatory records compiled for law enforcement purposes if their disclosure would result in one of six specified harms. Application of the exemption has presented the courts with a difficult but fundamental issue of public access to Government-controlled information. Primarily because Congress has not expressly indicated whether the products of unlawful FBI investigations should fall under Exemption 7, the courts have reached vastly different results in case application. One leading circuit has determined that all records from unlawful investigations must be disclosed even though such disclosure may cause harm to third parties. Other circuits have applied Exemption 7 to permit FBI withholding of information regardless of whether the material was collected in an unlawful investigation. Neither approach is adequate. It is suggested that the courts consider the nexus between withheld documents and the asserted lawful investigatory purpose. When that nexus is weak or tenuous, courts should then examine whether disclosure would result in one of the specific harms protected by Exemption 7. Unless there is a serious risk of harm of this type, disclosure should be ordered. The article provides 156 footnotes. (Author summary modified)