The Freedom of Information Act (FOIA) is one of the main tools used by the American public to investigate the actions of its government. Congress created FOIA in an attempt to make most government documents available to the public. Today, the FOIA process favors government withholding. This bias comes from institutional issues in courts’ review of FOIA challenges.
In the environmental and administrative law context, federal agencies use many exemptions to withhold government records from citizen and non-profit groups. Agencies that are tasked with permitting and regulating energy pipelines and other environmentally-sensitive infrastructure now regularly cite Exemption 7(F). These agencies claim that the release of certain infrastructure documents could be used to facilitate terrorism.
This Note contends that agencies are using Exemption 7(F) in a way contrary to congressional intent. Further, this Note argues that courts should reinterpret Exemption 7(F) in light of its legislative history and precedent. At Step 1, mixed agencies should have to show that there is a direct link between the withheld document and a law enforcement purpose. At Step 2, agencies should be required to show a threat of harm to at least one reasonably specified individual. In the alternative, this Note also considers a potential balancing test based on Exemption 7(C) that is outside of traditional Exemption 7(F) jurisprudence. Finally, this Note will also address the consequences of a reinterpreted Exemption 7(F).
How Safe Is Too Safe? Exemption 7(F) and the Withholding of Critical Documents,
Mich. J. Envtl. & Admin. L.
Available at: https://repository.law.umich.edu/mjeal/vol8/iss1/6