Gary Sebastian Brown, III v. Federal Bureau of Investigation

The Freedom of Information Act embodies a presumption of disclosure. In 2016, Congress enacted the FOIA Improvement Act, 5 U.S.C. § 552(a)(8)(A), which requires an agency, before withholding, to determine that disclosure of the particular information would foreseeably harm an interest protected by a FOIA exemption (or that disclosure is prohibited by law) and to release all reasonably segregable nonexempt material. The Act was intended to promote transparency and curb reflexive use of exemptions by requiring context-specific justifications. Exemption 7(D) protects “records or information compiled for law-enforcement purposes” to the extent disclosure “could reasonably be expected to disclose the identity of a confidential source,” or information furnished by such a source. Congress enacted this provision to preserve source anonymity and cooperation in criminal and analogous investigations, including protection against retaliation, harassment, or intimidation. I. Whether, after the FOIA Improvement Act of 2016, an agency invoking Exemption 7(D) must, in addition to establishing that the exemption applies, separately demonstrate that disclosure of the particular information would foreseeably harm an interest protected by that exemption. II. Whether Exemption 7(D) permits withholding consistent with FOIA’s 2016 foreseeable-harm requirement when the agency’s asserted risk is recognition of a witness’s account by other victims, witnesses, or investigators—rather