A Single Comma Is All That Stands Between The Public And FOIA'ed Law Enforcement Documents

The terrible tale of the missing comma and the damage done may soon come to an end. The EFF is calling on Congress to legislate this apparently missing punctuation back into its list of FOIA exemptions. FOIA Exemption 7(E) reads as follows, in reference to the withholding of documents:

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

Some courts have read this paragraph as a continuation of a single thought.

The first interpretation, which EFF believes is the right one, reads the entire sentence as being subject to the last clause that states "if such disclosure could reasonably be expected to risk circumvention of the law." In other words, records concerning both "techniques and procedures for law enforcement investigations or prosecutions" and "guidelines for law enforcement investigations or prosecutions" can only be withheld if "disclosure could reasonably be expected to risk circumvention of the law."

This subjects FOIA rejections to a higher standard, requiring both sets of documents ("techniques and procedures," "guidelines") to be proven to be circumvention risks if released. The other reading of this sentence with the crucial missing comma affords the first set of documents ("techniques and procedures") blanket protection from FOIA requests.

The second interpretation, which the Ninth Circuit adopted in Hamdan, starts by noting that there is a comma between "techniques and procedures for law enforcement investigations or prosecutions" and "guidelines for law enforcement investigations or prosecutions." Because of that comma, the courts reason, the two categories of records are distinct. Next, the courts note that there is no comma between "guidelines for law enforcement investigation or prosecutions" and the phrase "if such disclosure could reasonably be expected to risk circumvention of the law." Under this interpretation, the Hamdan court reasoned that because there is no comma between the circumvention risk clause, and because Exemption 7(E) treats "techniques and procedures" and "guidelines" as two distinct categories of records, the circumvention risk clause applies only to the "guidelines" category of records. Or, to put it another way, the lack of a comma in the second half of the exemption means that "techniques and procedures" can be withheld without agencies having to show that "disclosure could reasonably be expected to risk circumvention of the law."

The EFF's solution to the disparate interpretations is to hand the list of exemptions back to Congress and have it insert a comma, bringing both sets of records under the same standard for rejections.

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

Now is the time to do it. Congress is once again considering FOIA reform legislation. The EFF has sent a list of suggested fixes to the bill to Congressional representatives. FOIA reform is a yearly tradition, the EFF notes, but has generally resulted in yet another year of FOIA status quo, despite proposed legislation routinely arriving at the start of every new Congressional session with broad bipartisan support. This particular version contains some much-needed alterations to the government's favorite exemption: b(5). If passed intact, the new law would forbid the use of this exemption on documents more than 25 years old and, more importantly, prohibit use on so-called "deliberative process" documents that, in reality, carry the force of law or otherwise affect the same public that isn't being allowed to see this information. Considering the amount of work facing Congress in its reform efforts, asking for the addition of a comma seems like very little to ask. Of course, it will have to go up against foes of FOIA reform like the DOJ, which would likely very much prefer the exemption maintain its current level of punctuation.