FOIA Exemption 7(E)

January 13, 2014

To the MuckRock community:

If anybody can offer some insight on this I’d appreciate it.

I filed a FOIA request with ICE (U.S. Immigration and Customs Enforcement, part of the Department of Homeland Security) on September 26, 2011.

I asked for 2 broad categories of records. The first one started as follows:

“A) Documents that describe ICE’s policies and procedures (including training manuals, rules, guidelines, court rulings, administrative rulings, etc.) for conducting searches, in particular

1. Ensuring that ICE, its employees and agents comply with the 4th Amendment to the U.S. Constitution regarding searches.”

There were 10 other subparts to part A) of my request and they gave more details about the nature of the policies and procedures I was asking for.

In their final action (response) to my 2nd appeal they wrote, “With regard to your supplemental appeal dated November 18, 2013, please be advised that FOIA does not require agencies to do legal research, analyze data, answer questions or create records in response to a request.”

I had taken them to task in my 2nd appeal for completely ignoring and failing to acknowledge, let alone respond to, the arguments I had made in my first appeal. Their final response letter was entirely legalistic and the product of their own legal research, so they are kind of lying there.

ICE has invoked exemption 7(E) overly broadly. 7(E) says

“(b) This section does not apply to matters that are -

(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information

(E) 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,”

Police searches have been around as long as police have been around. The 4th Amendment prohibits unreasonable search and seizure. There have been decades of case law on searches in federal courts.

We know that agencies are supposed to segregate the exempt from the non exempt parts of their records responsive to a FOIA request and send the latter to the requester.

Here is the key question.

If a “technique or procedure” is already well known, as those for searches already are, then for ICE to send me the part(s) of their training manual(s), rules and guidelines etc. that describe their techniques or procedures for searches would not be “disclosing” anything. Would it?

These are the same techniques and procedures that police agencies at every level use.

Also, these techniques and procedures are well known to the public through several sources including TV, movies, personal experience, books, articles and websites. There is even a document called Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations, published by the Computer Crime and Intellectual Property Section, Criminal Division Published by Office of Legal Education Executive Office for United States Attorneys. The point is that Uncle Sam has already published this manual describing techniques and procedures for law enforcement investigations.

It is theoretically possible that ICE has some new and unusual twist to how to do a search but they must include the basics, which are well known and already disclosed. And if they have a new and unusual twist on how to do a search it still has to comply with the 4th Amendment.

Related questions:

Would you agree or disagree with the above argument? Why?

What sources can you refer me to on this point?

Are you aware of case law on this point?

Many thanks!

IH