An individual who was the subject of an investigation by the Department of Homeland Security filed a FOIA request (with assistance from the Heartland Alliance National Immigrant Justice Center) seeking information from the Department about the identify of Tier III terrorist groups. The federal agency denied the request, citing section 7(E) of the Federal FOIA which exempts records that would reveal techniques and procedures for law enforcement investigations or prosecutions. The Justice Center subsequently filed a lawsuit with the district court to appeal the Department's denial. That court ruled in favor of the federal agency and dismissed the lawsuit.
The case was appealed to the Seventh Circuit Court of Appeals, which upheld the district court's decision and agreed with the agency that withholding of names of Tier III terrorist organizations falls squarely within the 7(E) exemption. The court acknowledged the Department's need to obtain more information about these Tier III groups before making their identites public. The Seventh Circuit distinguished between Tier I, II, and III terrorist groups as follows:
Tier I and Tier II organizations are publicly identified terrorist groups such as ISIS and al‐Qaeda. Tier III organizations are defined in 8 U.S.C. § 1182(a)(3)(B)(vi)(III) as any group of two or more people that engages in terrorist activity (as defined in 8 U.S.C. § 1182(a)(3)(B)(iv)), even if their terrorist activity is conducted exclusively against regimes that are enemies of the United States. Tier III organizations tend to have a lower profile than Tier I’s or Tier II’s, not only because the government does not publish their names but also because they tend to be groups about which the U.S. government does not have good intelligence.
Heartland Alliance Nat'l Immigrant Justice Center v. U.S. Dept. of Homeland Security, No. 16-1840 (7th Cir. October 21, 2016)
Post Authored by Julie Tappendorf