Legal Issues

by Tim Cushing


Filed Under:
7(e), comma, exemptions, foia, foia reform



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

from the a-comma-more-controversial-than-the-Oxford dept

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.
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."
The EFF's solution to the disparate interpretations is to hand the list of exemptions back to Congress and have it insert a comma, bringing both sets of records under the same standard for rejections.
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
Now is the time to do it. Congress is once again considering FOIA reform legislation. The EFF has sent a list of suggested fixes to the bill to Congressional representatives. FOIA reform is a yearly tradition, the EFF notes, but has generally resulted in yet another year of FOIA status quo, despite proposed legislation routinely arriving at the start of every new Congressional session with broad bipartisan support.

This particular version contains some much-needed alterations to the government's favorite exemption: b(5). If passed intact, the new law would forbid the use of this exemption on documents more than 25 years old and, more importantly, prohibit use on so-called "deliberative process" documents that, in reality, carry the force of law or otherwise affect the same public that isn't being allowed to see this information.

Considering the amount of work facing Congress in its reform efforts, asking for the addition of a comma seems like very little to ask. Of course, it will have to go up against foes of FOIA reform like the DOJ, which would likely very much prefer the exemption maintain its current level of punctuation.


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    Anonymous Coward, 27 Jan 2016 @ 12:23pm

    Grammar

    A simple case of a missing "Oxford Comma", it would appear...

    reply to this | link to this | view in chronology ]

  • identicon
    the grammarian, 27 Jan 2016 @ 12:35pm

    words mean things

    ...punctuation provides clarity or obfuscation or cover, if you will...

    reply to this | link to this | view in chronology ]

  • icon
    TechDescartes (profile), 27 Jan 2016 @ 1:02pm

    Putting the "Pun" in "Punctuation"

    Considering the amount of work facing Congress in its reform efforts, asking for the addition of a comma seems like very little to ask.
    Unfortunately, it's the comma before the storm.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Anonymous Coward, 27 Jan 2016 @ 1:12pm

      Re: Putting the "Pun" in "Punctuation"

      Congress and work don't seem to be compatible.

      Lobbyists write legislation and congress-critters vote the way the party tells them to. Reading that legislation would be actual work, especially when the bills run to several thousand pages, and we know that probably does not happen. Then there is the issue of having the wherewithal to know when a comma should be placed, and where.

      Now the really sad part is that many of them passed a bar exam at one point in their life.

      reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 28 Jan 2016 @ 4:20am

      Re: Putting the "Pun" in "Punctuation"

      If by comma you mean reduced brain activity you bet it is! I mean, we are talking about the Congress!

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Jan 2016 @ 1:08pm

    Better to restructure the whole paragraph

    Although I generally dislike trying to read laws written to have subsections (a-f), each of which has subpoint (1-6), each of which has sub-subsection (I-VI), etc., this is a perfect case of where that form of drafting would make the language unambiguous.

    "Agencies may withhold documents listed in list (a), provided that they satisfy clauses (b) and (c).

    List (a) is: [methods], [guidelines];
    Clause (b) provides for withholding for [protection of a specific ongoing investigation];
    Clause (c) provides ..."

    reply to this | link to this | view in chronology ]

  • icon
    PlagueSD (profile), 27 Jan 2016 @ 1:28pm

    The power of the comma

    The comma can definitely change the context of a sentence. For example, "Let's eat Grandma!!" is completely different than "Let's eat, Grandma!!" Without the comma, Grandma's life is in danger.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Jan 2016 @ 2:22pm

    Damned retards, making those of us that are mentally challenged look good.

    reply to this | link to this | view in chronology ]

  • identicon
    somyongguy, 27 Jan 2016 @ 10:37pm

    Neil young wrote about this years ago

    I've seen the comma and the damage done, a little part of it to everyone...

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Techdirt Gear
Shop Now: Techdirt Logo Gear
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.