What specific FOIA exemptions do DOJ and FBI typically invoke to withhold undercover videotapes and recordings?
Executive summary
DOJ and the FBI most commonly rely on the law‑enforcement‑focused Exemption 7 and its subparts to withhold undercover videotapes and recordings, and they supplement those claims with other FOIA exemptions — notably Exemptions 1 (national security), 5 (deliberative process/work product), and 6 (personal privacy) — as well as narrow statutory exclusions that allow some law‑enforcement records to be treated as not subject to FOIA at all [1] [2] [3] [4].
1. The primary tool: FOIA Exemption 7 and its subparts
When recordings were “compiled for law enforcement purposes,” agencies invoke Exemption 7 to justify withholding, and then point to specific harms spelled out in 7(A)‑(E) — for example 7(A) to prevent interference with ongoing or prospective enforcement proceedings, 7(C) to prevent unwarranted invasions of personal privacy, 7(D) to protect the identity and records of confidential sources, and 7(E) to avoid revealing techniques, procedures, or guidelines that would risk circumvention of the law — all of which are expressly applied to law enforcement records like undercover video [1] [5] [6].
2. How 7(A), 7(C), 7(D) and 7(E) map to undercover tapes
Practically, DOJ/FBI argue 7(A) covers tapes that could tip off subjects or compromise prosecutions if released; 7(C) and 6 are used where recordings include identifiable private individuals whose privacy outweighs public interest; 7(D) is invoked when tapes show confidential informants or undercover officers whose identities could be exposed; and 7(E) is cited when the video reveals investigative techniques (camera placement, tradecraft, or interrogation approaches) that could be replicated or defeated by wrongdoers [1] [7] [8].
3. Additional exemptions agencies commonly pair with Exemption 7
Beyond Exemption 7, agencies routinely assert Exemption 1 where release would touch classified foreign‑intelligence or counterintelligence material and even the “existence” of such FBI records (or their classification) can be treated as excluded under statutory rules tied to Exemption 1 [2]; Exemption 5 (deliberative process/attorney work product) may be used to withhold internal analyses or agent notes embedded in recordings or accompanying memoranda [9]; and Exemption 6 is invoked to shield individual privacy in raw video showing bystanders or victims [3] [10].
4. Statutory exclusions, internal codes, and “treat as not subject” doctrine
Separate from the nine exemptions, Congress created narrow statutory exclusions that let criminal law‑enforcement components (and the FBI for certain national security records) treat specified records as not subject to FOIA at all — a tool the DOJ has recommended components notify requesters about and use in limited circumstances to avoid revealing the very existence of sensitive records [4] [2]. The FBI and other DOJ components also rely on internal confidentiality practices (e.g., informant codes or nonpublic file indexing) and Exemption 2 for internal identifiers tied to law‑enforcement systems [7] [8].
5. Accountability, litigation friction, and competing narratives
The agencies’ use of these exemptions is routine, but contested: news organizations and watchdogs have sued over broad withholdings and redactions, arguing agencies sometimes fail to provide sufficient justification for exemptions or adequate searches (the Reporters Committee/AP litigation is a recent example where the court scrutinized the FBI/DOJ justifications and search adequacy) [11]. The DOJ’s FOIA guidance and federal courts require agencies to identify the specific exemption and show how disclosure would cause the claimed harm, yet courts often grant deference in national security or ongoing‑investigation contexts — a tension that fuels repeated litigation over undercover recordings [12] [9] [11].