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Rational Rose Enterprise Edition V 70 ((NEW))



The Court of Appeals for the District of Columbia Circuit adopted this majority approach when the full court addressed the issue in Crooker v. ATF, a case involving a law enforcement agents' training manual. (65) Although not explicitly overruling its earlier en banc decision in Jordan v. United States Department of Justice, which held that guidelines for the exercise of prosecutorial discretion were not properly withholdable, (66) the en banc decision in Crooker specifically rejected the rationale of Jordan that Exemption 2 could not protect law enforcement manuals or other documents whose disclosure would risk circumvention of the law. (67) The Crooker decision thus stands at the head of a long line of cases interpreting Exemption 2 to encompass protection for internal agency information the sensitivity of which is readily recognized. (68)




Rational Rose Enterprise Edition V 70


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Under some circumstances, Exemption 2 may be applied to prevent potential circumvention through a "mosaic" approach -- information which would not by itself reveal sensitive law enforcement information can nonetheless be protected to prevent damage that could be caused by the assembly of different pieces of similar information by a requester. (127) This circumstance arose in a case involving a request for "Discriminant Function Scores" used by the IRS to select tax returns for examination. (128) Although the IRS conceded that release of any one individual's tax score would not disclose how returns are selected for audit, it took the position that the routine release of such scores would enable the sophisticated requester to discern, in the aggregate, its audit criteria, thus facilitating circumvention of the tax laws. The court accepted this rationale as an appropriate basis for affording protection under Exemption 2. (129) In a related case, one court upheld the denial of access to an IRS memorandum containing tolerance criteria used by the agency in its investigations, finding that disclosure would "undermine the enforcement of . . . internal revenue laws." (130) 076b4e4f54


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