January 26, 2016 | By Aaron Mackey

The Case of the Missing Comma: Why Congress Must Fix FOIA’s Law Enforcement Exemption

As Congress considers big changes to the Freedom of Information Act, a court’s decision on Monday underscores how some of the best ways to fix the ailing transparency statute are really small—like adding a comma.

Last fall in Naji Hamdan v. U.S. Department of Justice, the U.S. Court of Appeals for the Ninth Circuit read the lack of a comma in FOIA’s law enforcement exemption to limit public access to investigatory techniques and procedures.

EFF thought that decision was wrong, both because it misread FOIA’s text and legislative history and because it emphasized technical form over the statute’s goal of ensuring robust access to government records.  We filed a brief asking the court to reconsider its decision, but the court denied the effort in a summary opinion on Monday.

For Mr. Hamdan, the denial means that an American citizen may never learn the extent to which law enforcement and national security agencies knew about or were otherwise complicit in his detention and torture abroad. For the broader public, however, the decision could result in greater secrecy surrounding law enforcement’s use of controversial investigatory techniques and procedures.

Court Vexed by the Absence of a Comma

Like many laws, the text of FOIA tries to distill abstract principles—in this case, government transparency—into plain English that the public, government agencies, and courts can apply to particular cases. Just like any writing, however, statutes can suffer from poor drafting, bad grammar, and incorrect punctuation that courts must then parse.

This issue was front and center in Hamdan, as the court had to decide how to interpret FOIA Exemption 7(E), which allows agencies to withhold law enforcement records that:

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

Courts have interpreted the exemption in two ways. The first interpretation, which EFF believes is the right one, reads the entire sentence as being subject to the last clause that states "if such disclosure could reasonably be expected to risk circumvention of the law." In other words, records concerning both "techniques and procedures for law enforcement investigations or prosecutions" and "guidelines for law enforcement investigations or prosecutions" can only be withheld if "disclosure could reasonably be expected to risk circumvention of the law."

Courts following this interpretation have required agencies to show that the particular techniques and procedures at issue in the FOIA request would, if disclosed, potentially give lawbreakers a roadmap on how to evade law enforcement or otherwise break the law.

The second interpretation, which the Ninth Circuit adopted in Hamdan, starts by noting that there is a comma between "techniques and procedures for law enforcement investigations or prosecutions" and "guidelines for law enforcement investigations or prosecutions." Because of that comma, the courts reason, the two categories of records are distinct. Next, the courts note that there is no comma between "guidelines for law enforcement investigation or prosecutions" and the phrase "if such disclosure could reasonably be expected to risk circumvention of the law."

Under this interpretation, the Hamdan court reasoned that because there is no comma between the circumvention risk clause, and because Exemption 7(E) treats "techniques and procedures" and "guidelines" as two distinct categories of records, the circumvention risk clause applies only to the "guidelines" category of records. Or, to put it another way, the lack of a comma in the second half of the exemption means that "techniques and procedures" can be withheld without agencies having to show that "disclosure could reasonably be expected to risk circumvention of the law."

Confused? So were we. The upshot of the Hamdan court’s intense focus on punctuation (or the lack thereof) means that law enforcement agencies no longer have to explain why particular investigatory techniques and procedures should remain secret. Instead, agencies can just withhold them.

A Comma Will Dispel the Confusion

We think the court’s ruling was wrong, particularly given the history of Exemption 7(E) and FOIA’s guiding principles that presume all records are public and that the exemptions should be read narrowly.

That said, if the lack of a comma led to the absurd result in Hamdan, Congress could insert a comma into Exemption 7(E) (as seen below in red brackets) to reverse the decision and require agencies to once again justify their withholding of investigatory techniques and procedures. The statute would thus read as permitting law enforcement to withhold records that:

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

The comma would dispel ambiguity that the circumvention risk requirement applies to both categories of records described in Exemption 7(E). Agencies would thus have to provide a justification for withholding investigatory techniques and procedures.

The comma fix would still allow agencies to withhold legitimate techniques and procedures that might actually cause criminals to evade investigations—it just would not allow them to blithely assert Exemption 7(E).

We think the comma fix is one of the easiest changes Congress can make as it is considering a large overhaul of FOIA. That’s why we’ve included it in the list of amendments we’d like the Senate add to the current bill. It’s not a monumental change to FOIA, but it’s an important one that helps restore the public’s right to know what its government is doing.


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