The Freedom of Information Act (FOIA) gives the public the right to access records from any federal agency, subject to nine limited exemptions. Exemption 7 allows the Government to withhold certain “records or information compiled for law enforcement purposes.” But the courts of appeals have disagreed on how broadly to interpret this exemption.
Several circuits have adopted a “per se” rule that any documents compiled by a law enforcement agency are automatically compiled for law enforcement purposes—no further analysis required. In those circuits, an FBI agent could even admit that he compiled a dossier to sell to a private party, to intimidate or bully, or for some other non-law enforcement purpose—and Exemption 7 would still apply.
But this approach is incompatible with the text of FOIA. By its plain terms, Exemption 7 asks about the “purpose” for which specific records were compiled—not the nature of the agency that compiled them. That is why some circuits have rejected this per se rule, instead asking agencies to demonstrate that the particular documents at issue were compiled for a legitimate law enforcement purpose, not just by a law enforcement agency.
Now the Supreme Court has a chance to resolve this circuit split and vindicate the plain text of FOIA.
This week, the Court will meet and decide whether to take the case of Nathaniel Buckley, who co-owns a bookstore in Buffalo, New York. Mr. Buckley is involved in political activism for anti-war and environmental causes, and his bookstore frequently hosts speakers and screens documentaries critical of the government, particularly the FBI. After finding out that undercover FBI agents were monitoring bookstore events, Mr. Buckley submitted a FOIA request seeking records relating to himself, his lawyer, and several friends, colleagues, and family members.
After three years and multiple rounds of administrative appeals, the FBI identified 58 pages of information responsive to Mr. Buckley’s request. But the FBI turned over only three pages in full. The only justification the FBI gave for withholding the rest of the information was a form letter with boxes checked next to the claimed statutory exemptions. The FBI invoked Exemption 7 for every one of the 55 pages it failed to release in full.
Buckley sued the government for the release of the remaining documents, but he lost in both the district and circuit courts because the Second Circuit applies the per se rule, and the FBI is a law enforcement agency. Buckley then asked the Supreme Court to take his case, and Cato filed an amicus brief supporting his petition (with thanks to Steve Art, Matt Topic, Justin Hill, Aaron Tucek, and Annalise Wagner of Loevy & Loevy for drafting the brief).
In our brief, we explain why FOIA is critical to democratic governance and why the per se rule improperly narrows its scope and interferes with that important function. Permitting government misdeeds to be shielded from the public based on a broad and atextual reading of Exemption 7 turns the statute on its head. If a law enforcement agency is using the government’s resources and authority for improper purposes, the public is entitled to know. Likewise, the threat that governmental abuses will be made public if they occur can head off any temptation to improperly exercise executive power. At bottom, public access to information about potential abuses of power is an essential tool to stymie those abuses.
Further, our brief notes that the long history of the federal government’s surveillance of constitutionally protected activities underscores the need to reject the per se rule. As Cato has documented in our American Big Brother timeline, the targeting of those with whom federal bureaucrats disagree has a long history in the modern United States. Indeed, this history stretches all the way back to the earliest days of the FBI.
The task of deciding whether and how much domestic surveillance our laws ought to tolerate falls squarely within the political branches. But elected leaders, and the broader public to which they are accountable, cannot engage in informed debate on the subject if the federal government is permitted to keep such activities shrouded in secrecy. The per se rule allows the government to do exactly that.
The Supreme Court should take Buckley’s case, reverse the Second Circuit, and hold that FOIA’s exemption 7 only applies to documents compiled for legitimate law enforcement purposes.
