SUMMARY OF ARGUMENT
Exemption 7(F) of the FOIA, 5 U.S.C. § 552 (7)(F), does not permit the
government to hide records of its own misconduct, or of the misconduct of its agents,
based upon a fear of violent public reaction to the disclosure. Amici do not dispute, as a
general matter, the legitimacy of the governmentâs interest in the safety of its military
personnel, or even in the safety of foreigners living in American zones of conflict
overseas. Amici do object, however, to the governmentâs misdirected effort to
undermine the FOIA by asserting, in essence, that its own misconduct has created an
indictment too damning for the public to see.
The government erroneously proposes a novel and distasteful application of
Exemption 7(F) based upon the degree of outrage disclosure might provoke.
Historically, Exemption 7(F) has been used most frequently to protect names from
disclosure when that publicity would ostensibly endanger individualsâ personal safety.
Two district courts have also allowed the use of Exemption 7(F) to suppress dam
inundation maps and machine gun plans under the theory that the disclosure of technical
information could be directly utilized to commit terrorism or crime. Living Rivers, Inc.
v. United States Bureau of Reclamation, 272 F. Supp. 2d 1313, 1321-22 (D.Utah 2003);
LaRouche v. Webster, No. 75 Civ. 6010 (MJL), 1984 WL 1061 at *8 (S.D.N.Y. Oct. 23,
1984). There is no precedent for the construction the government proposes.
The governmentâs new request for secrecy appears to be based upon dubious
reasoning and suspect timing, coming as it did literally within hours of its court-ordered
deadline to finally hand records over to the ACLU and other FOIA requesters. Notably,
the court order was issued in response to the governmentâs loss on a first argument, its
unsuccessful reliance upon an argument that disclosure of the records violated detainees
âprivacy.â Regardless of whether the government technically has the right to claim a
new FOIA exemption after fully arguing and losing its claims to other exemptions, its
latest action creates further and unnecessary delay, violating the right of the ACLU and
the public to a timely resolution of this access dispute.
Enlarging Exemption 7(F) to accommodate the governmentâs new argument
would significantly undermine both the intent of the exemption and the integrity of the
Act as a whole for two reasons. First, the governmentâs interpretation would result in a
perverse outcome by rewarding state actors who commit illegal activities so atrocious as
to provoke fears of violent retribution should those acts be uncovered. Second, the
governmentâs justification is both so vague and overbroad with regard to improper
military conduct that Exemption 7(F) would fast become an exception that entirely
swallows the rule.
