Previous posts have discussed some of the ways the  USPTO tries to deny FOIA requests, citing Exemption 6 for example.  Another exemption the USPTO often cites is Exemption 7(A).  In one example where I was requesting certain public records, an appeal was required explaining why the USPTO FOIA Office’s refusal to disclose the requested records under FOIA Exemption 7(A) was not justified because patent examinations are neither the type of “law enforcement proceeding” contemplated by Exemption 7, nor was the alleged harm in disclosure posited by the FOIA Office realistic.

The first issue was whether patent application examinations are the type of “law enforcement proceeding” to which Exemption 7 applies.  One would this that this is clear, but as noted, USPTO FOIA officers do cite this exemption.  

Under Exemption 7, FOIA exempts from disclosure “records or information compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7). Thus, as a threshold to any exemption from disclosure under subsections of FOIA Exemption 7, records must first be compiled for “law enforcement purposes.” See Abramson v. FBI, 456 U.S. 615, 622 (1982).  Hence, whether or not Exemption 7 has been held to apply more broadly than criminal law enforcement proceedings, it does not encompass all agency activities.  Where an agency does not exist exclusively to enforce criminal laws, an agency is termed a “mixed-function” agency and is held to more exacting scrutiny when determining whether the threshold for Exemption 7 is met.  See, e.g., Irons v. Bell, 596 F.2d 468, 473 (1st Cir. 1979) (determining that mixed-function agency must demonstrate purpose falling within its sphere of enforcement authority).  In this case, at best the USPTO falls within the category of mixed function agencies, and thus at a minimum has a higher burden to meet to show that records requested pursuant to FOIA were compiled as part of its law enforcement function.

The types of mixed-function government agency “enforcement” activities in which Exemption 7 has been found to apply include cases involving inspections pursuant to the Occupational Health and Safety Act to investigate violations of federal law (Cooper Cameron Corp. v. Dep’t of Labor, 280 F.3d 539 (5th Cir. 2002)); the authority of the Bureau of Reclamation to “maintain law and order and protect persons and property within Reclamation projects and on Reclamation lands” (Living Rivers v. U.S. Bureau of Reclamation, 272 F. Supp. 2d 1313, 1319 (D. Utah 2003)); and investigations related to violations of federal income tax laws (Lewis v. IRS, 823 F.2d 375, 379 (9th Cir. 1987). These types of agency law enforcement activities, which could ultimately result in civil or criminal sanctions, have a distinctly different character than the more cooperative patent examination process that may ultimately enable an applicant to obtain a U.S. patent.

So the next time the USPTO denies your FOIA request citing Exemption 7, remind the FOIA officer as to the actual requirements.