by Matthew Clarke

On February 1, 2018, the Ninth Circuit Court of Appeals held that generalized law enforcement records such as training manuals and guidelines could fall under Exemption 7 of the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b)(7), without requiring the agency seeking to withhold the documents to show a linkage to the enforcement of a particular federal law.

The American Civil Liberties Union of Northern California, Asian Law Caucus and San Francisco Bay Guardian (collectively, "the ACLU”) became concerned about FBI surveillance of Muslim-Americans and submitted a FOIA request for documents about surveillance and infiltration, including records of "[t]raining for FBI agents regarding Islam, Muslim culture, and/or Muslim, Arab, South Asian, or Middle Eastern communities in the United States."

After receiving no disclosures, the ACLU filed suit. The FBI then released more than 50,000 pages of redacted materials, but withheld 47,794 pages while providing an index identifying the withheld documents and reason for withholding.

After finding that the FBI had failed to show a " 'rational nexus' between the enforcement of a federal law and the documents it claims are exempt from disclosure," the court granted summary judgment to the ACLU. The FBI appealed.

The Ninth Circuit noted that an agency claiming exemption from disclosure of investigative materials must show a nexus between the materials and enforcement of a federal law. However, the documents in question were not investigative, but training materials and guidelines. For such non-investigative documents, the FBI "need only establish a rational nexus between the withheld document and its authorized law enforcement activities. If such a showing is made, the district court can then determine whether disclosure would cause any of the specific harms identified in Exemptions 7(A)-(F), 5 U.S.C. § 552(b)(7)(A)-(F)."

Therefore, the judgment was vacated and the case remanded to the district court for further proceedings.

See: America Civil Liberties Union of Northern California v. Federal Bureau of Investigation, F.3d (9th Cir. 2018), No. 16-1517

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