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FOIA News: A Single Comma Is All That Stands Between The Public And FOIA'ed Law Enforcement Documents

FOIA News (2015-16)Kevin SchmidtComment

A Single Comma Is All That Stands Between The Public And FOIA'ed Law Enforcement Documents

By Tim Cushing, techdirt, Jan. 28, 2016

The terrible tale of the missing comma and the damage done may soon come to an end. The EFF is calling on Congress to legislate this apparently missing punctuation back into its list of FOIA exemptions

FOIA Exemption 7(E) reads as follows, in reference to the withholding of documents:

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

Some courts have read this paragraph as a continuation of a single thought.

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."

This subjects FOIA rejections to a higher standard, requiring both sets of documents ("techniques and procedures," "guidelines") to be proven to be circumvention risks if released. The other reading of this sentence with the crucial missing comma affords the first set of documents ("techniques and procedures") blanket protection from FOIA requests.

Read more here.