Second Circuit Reaffirms No-Legitimacy-Inquiry Rule under FOIA Exemption 7 and Treats Unit Identifiers as Protected “Guidelines” under Exemption 7(E); Strict Showing Required for Catalyst-Fees Claims

Case: Buckley v. U.S. Department of Justice, No. 24-3192-cv (2d Cir. Oct. 14, 2025) (summary order)

Court: United States Court of Appeals for the Second Circuit

Panel: Judges Guido Calabresi, Denny Chin, Eunice C. Lee

Disposition: Affirmed (district court’s grant in part/denial in part of cross-motions for summary judgment; denial of attorneys’ fees)

Note on precedential status: This is a Summary Order, which under FRAP 32.1 and Second Circuit Local Rule 32.1.1 is citable but non-precedential. It nonetheless offers persuasive guidance on FOIA Exemption 7(D) and 7(E), and on catalyst-theory fee claims.

Introduction

This Freedom of Information Act (FOIA) appeal arises from plaintiff-appellant Nathaniel J. Buckley’s efforts to obtain FBI records concerning a domestic terrorism investigation involving him and a bookshop he co-owns. The investigation concluded without charges. The Department of Justice (DOJ) and the FBI initially released 14 partially redacted pages out of 16 identified. After Buckley filed suit, the DOJ produced another 54 partially redacted pages out of 58 identified. The magistrate judge’s summary-judgment ruling did not compel additional disclosures and denied Buckley’s request for attorneys’ fees.

On appeal, Buckley pressed two core issues: (1) whether FOIA Exemption 7 allowed the DOJ to withhold unit/squad/division identifiers and confidential informant information (including confidential source symbol numbers), and (2) whether he was eligible for attorneys’ fees under the “catalyst theory” given the post-suit release of additional records. The Second Circuit affirmed, reinforcing the Circuit’s distinctive threshold approach to Exemption 7 and clarifying how Exemption 7(E)’s “guidelines” prong can encompass unit identifiers, while also underscoring the rigorous causation showing necessary to obtain catalyst-based fees.

Summary of the Opinion

Exemption 7 threshold (law enforcement purpose): The court reaffirmed that, in the Second Circuit, when records are sought from a law enforcement agency, courts do not examine the legitimacy of the investigation. Courts assume the records were “compiled for law enforcement purposes” even if the investigation might be “unwise, meritless, or even illegal.”
Exemption 7(D) (confidential sources): Information that would reveal confidential informant identities or information furnished by a confidential source is categorically protected. There is no balancing test, and subsequent disclosures or alleged waivers do not defeat the exemption.
Exemption 7(E) (techniques, procedures, and guidelines): On these facts, the DOJ met its burden to withhold unit/squad/division identifiers because revealing them would disclose “guidelines” relating to resource allocation and could reasonably be expected to risk circumvention of the law.
Attorneys’ fees (catalyst theory): Although Buckley plausibly suggested that litigation—not later-submitted release forms—prompted additional disclosures, he failed to present that argument (specifically, his 2018 release forms) to the district court. Given that omission, he did not carry his burden to show the lawsuit was the catalyst, and denial of fees was not an abuse of discretion.

Analysis

Precedents Cited and Their Role

Ferguson v. FBI, 957 F.2d 1059 (2d Cir. 1992): Reaffirmed the Second Circuit’s categorical approach to Exemption 7’s threshold: courts will not probe the “legitimacy” of the agency’s law-enforcement purpose when records are from a law enforcement agency. Also cited for the description of Exemption 7(D) as part of a “scheme of categorical exclusion.”
Williams v. FBI, 730 F.2d 882 (2d Cir. 1984): Provides the oft-quoted formulation that courts must assume FBI investigatory records are for law-enforcement purposes, even if the underlying investigation was “unwise, meritless or even illegal.”
FBI v. Abramson, 456 U.S. 615 (1982): Quoted for the notion that Exemption 7(D) participates in a categorical scheme; balancing or source behavior does not undermine the exemption.
Allard K. Lowenstein Int’l Human Rights Project v. DHS, 626 F.3d 678 (2d Cir. 2010): Key to Exemption 7(E): “guidelines,” in this context, refers to resource allocation. The Buckley panel relied on this to treat unit identifiers as disclosing protected “guidelines.”
Jabar v. DOJ, 62 F.4th 44 (2d Cir. 2023) (per curiam): Cited for the de novo standard of review governing FOIA Exemption 7 determinations at summary judgment.
Wilson v. FBI, 91 F.4th 595 (2d Cir. 2024) (per curiam): Cited on fee review standards: abuse of discretion for denial of fees, with legal questions reviewed de novo.
Contrasting approaches in other circuits: The panel acknowledged contrary authority requiring a “rational nexus” between the records and a legitimate law-enforcement purpose (D.C. Circuit in Pratt v. Webster, Ninth Circuit in Binion, Third Circuit in Davin as later modified). The panel remarked “there is much to be said” for that approach, but it remains bound by Second Circuit precedent.

Legal Reasoning

1) Exemption 7’s Threshold: No Inquiry into Legitimacy of Purpose

Buckley posited that the records were compiled for political rather than legitimate law-enforcement reasons, seeking to block the government’s reliance on Exemption 7. The Second Circuit flatly rejected that framing as foreclosed by circuit law. When the agency is a law-enforcement body (here, the FBI), the court does not conduct a factual inquiry into whether the investigation was “legitimate.” Instead, it assumes investigatory records were “compiled for law enforcement purposes,” even if the investigation might be criticized as “unwise, meritless or even illegal.” This is the Second Circuit’s established approach, anchoring the threshold inquiry in the identity of the agency and the nature of the records, rather than in a case-by-case assessment of investigative propriety.

By reaffirming Ferguson and Williams, the panel also highlighted an ongoing circuit split: other circuits apply a “rational nexus” test that interrogates the link between the records and a legitimate purpose. The panel acknowledged the appeal of that test but adhered to binding Second Circuit precedent.

2) Exemption 7(D): Categorical Protection for Confidential Sources

Buckley sought the identities of confidential informants and their confidential source symbol numbers, arguing that source behavior or FBI practices undermined the need for secrecy. The panel rejected those arguments: Exemption 7(D) contains no balancing test and no waiver exception based on later disclosures or agency conduct. As part of a “scheme of categorical exclusion,” Exemption 7(D) protects both the identity of a confidential source and information furnished by a confidential source (in criminal or national security investigations). Once the exemption applies, “such considerations are not relevant.” On that basis, the court sustained the withholdings of informant-related information, including standardized identifiers like source symbol numbers, which would tend to reveal the existence or identity of confidential human sources.

3) Exemption 7(E): Unit/Squad/Division Names as Protected “Guidelines”

Exemption 7(E) has two prongs: (i) techniques and procedures, and (ii) guidelines whose disclosure could reasonably be expected to risk circumvention of the law. Buckley argued unit names are not “techniques” or “procedures.” The panel did not need to reach that contention because it found unit names fell within the “guidelines” prong, drawing on Allard K. Lowenstein’s gloss that “guidelines,” in this context, refer to resource allocation. On “these particular facts,” the DOJ carried its burden to show that revealing which units were involved in FBI counterterrorism work would effectively disclose resource allocation information, and that disclosure could reasonably be expected to facilitate circumvention of the law. The court thus permitted withholding of unit/squad/division identifiers.

Two nuances sharpen the holding’s contours: (1) The court’s rationale hinged on counterterrorism context and evidentiary showings that unit identification meaningfully reveals resource allocation; and (2) the opinion’s phrasing—“on these particular facts”—signals that similar claims will remain fact-dependent, turning on declarations and Vaughn submissions that articulate concrete circumvention risks.

4) Catalyst Theory for Attorneys’ Fees: Causation Must Be Shown and Preserved

FOIA authorizes fees to a prevailing party. Without a favorable judgment, plaintiffs may still qualify under the “catalyst theory” by showing a voluntary change in agency position caused by a “not insubstantial” claim. Buckley argued that the DOJ’s additional releases after suit showed litigation was the catalyst. The DOJ countered that the real catalyst was the submission of release forms from third parties—but acknowledged similar forms were submitted pre-suit in 2018. The panel agreed that Buckley’s inference—that litigation, not merely post-suit forms, prompted the releases—was “plausible.”

Nevertheless, Buckley lost because he did not present the dispositive 2018-forms argument to the district court. The plaintiff bears the burden to show causation—i.e., that the release would not have occurred but for the lawsuit. The magistrate judge concluded that Buckley failed to establish such causation, and the Second Circuit saw no clear error or abuse of discretion in that determination, especially given Buckley’s failure to raise the 2018-forms point below. Because he did not establish eligibility, the court did not reach the separate “entitlement” factors (e.g., public benefit, commercial benefit, reasonableness of agency position).

Impact and Practical Implications

Although non-precedential, this summary order is a pointed reminder of several enduring Second Circuit FOIA principles and some practical lessons:

Exemption 7 threshold remains agency-centric in the Second Circuit: FOIA requesters cannot defeat Exemption 7 by arguing an FBI investigation was political, improper, or even unlawful. That threshold challenge remains viable in some other circuits, but not here.
Exemption 7(D) is exceptionally robust: Confidential source identities and information (including symbol numbers) remain categorically protected. Post hoc source disclosures or alleged agency laxity are immaterial to applicability.
Unit identifiers can be protected under Exemption 7(E): Where unit/squad/division names reveal resource allocation in sensitive operations and would risk circumvention, withholding may be justified as “guidelines.” Agencies should substantiate this link with detailed declarations; requesters should be prepared to challenge the connection between mere naming and genuine circumvention risks.
Fee claims demand preserved, record-supported causation: The sequence “lawsuit then release” is insufficient. Plaintiffs must present, in the district court, concrete evidence showing the suit was the catalyst. Failing to raise key facts (like earlier, adequate release forms) can be fatal to fee eligibility.
Circuit split endures: The panel’s express acknowledgment that “there is much to be said” for the contrary “rational nexus” approach may invite en banc or Supreme Court attention in an appropriate case. Until then, the Second Circuit’s no-legitimacy-inquiry rule governs within the Circuit.

Complex Concepts Simplified

FOIA Exemption 7 (5 U.S.C. § 552(b)(7)): Protects “records or information compiled for law enforcement purposes” if one of six sub-exemptions applies, including 7(D) and 7(E). In the Second Circuit, when the records come from a law enforcement agency, courts assume the threshold is met without probing the “legitimacy” of the investigation.
Exemption 7(D): Shields the identity of a confidential source and, in criminal or national security investigations, information furnished by such a source. It is “categorical,” meaning no balancing test and no defeat by later disclosures or argued waivers.
Exemption 7(E): Has two prongs: (i) techniques/procedures and (ii) investigative guidelines whose disclosure could reasonably be expected to risk circumvention of the law. In this case, unit/squad/division identifiers were treated as revealing “guidelines” in the form of resource allocation, with an associated circumvention risk.
Confidential source symbol numbers: Internal identifiers the FBI uses to track confidential human sources. Disclosing these numbers can reveal the existence or identity of a confidential source and is typically protected by Exemption 7(D).
“Catalyst theory” for fees: A plaintiff can “prevail” for fee eligibility without a merits judgment by showing the lawsuit caused the agency to change position and release records, and that the claim was not insubstantial. The plaintiff bears the burden of demonstrating causation; arguments must be preserved in the district court.
Summary order: A non-precedential decision. It can be cited under FRAP 32.1 and Local Rule 32.1.1 if properly noted as a “summary order,” but it does not bind future panels.

Conclusion

This summary order reinforces three durable features of Second Circuit FOIA jurisprudence. First, the Exemption 7 threshold remains unaffected by challenges to the legitimacy of the underlying investigation when records come from a law enforcement agency. Second, Exemption 7(D) retains its categorical force: confidential source identities and related information—including source symbol numbers—are protected, unaffected by subsequent source conduct or agency practices. Third, in a targeted application of Exemption 7(E), the court accepted that naming investigative units can disclose protected “guidelines” about resource allocation and risk circumvention in the counterterrorism context.

On fees, the decision underscores that catalyst-theory eligibility hinges on a well-developed and preserved record showing the lawsuit caused the release. The court acknowledged the plausibility of Buckley’s causation theory but affirmed the denial of fees because the key argument (2018 release forms) was not raised below.

While non-precedential, Buckley offers practical guidance to both requesters and agencies. Requesters should expect stiff headwinds when seeking to (i) contest Exemption 7’s threshold on legitimacy grounds, (ii) obtain confidential-source information, or (iii) compel disclosure of unit identifiers tied to sensitive operations. Agencies, for their part, should carefully document how disclosing seemingly benign metadata—like unit names—can reveal resource allocation and enable circumvention. Finally, litigants seeking fees must marshal and present their causation evidence in the district court or risk forfeiture. In sum, Buckley persuasively consolidates the Second Circuit’s deferential posture toward law-enforcement sensitivity under Exemption 7 and its exacting approach to catalyst-fee claims.