Can we talk a little more about FD-209 forms, the official forms that FBI agents submit every time they interact with a confidential informant? I love FD-209 forms. I’m probably the number one fangirl of FD-209 forms these days…but not just any FD-209 forms. I’m unquenchably thirsty for the FD-209 forms concerning a confidential informant known as LV 366-PC.
To recap: LV 366-PC was an informant for the FBI’s Las Vegas Field Office who, in 1970, gave the FBI information concerning the whereabouts of a mobster named Marty Fenster. I would love to get my hands on LV 366-PC’s FD-209 forms because I also think that, in 1973, LV 366-PC gave the FBI information about Ron Tammen.
On May 27, 2026, I submitted a FOIA request for LV 366-PCs FD-209 forms. Just six days later, two of which fell on a weekend, the FBI refused my request. I’m not gonna lie—their words were intimidating.
In their reason for their denial, they cited subsections D and E of exemption 7, which applies to records compiled for law enforcement purposes. The acting section chief then spelled out the harm that I’d be inflicting if those FD-209s ever got into my impertinent little thirsty fangirl hands.
“Release of records responsive to your request would reveal confidential informant identities and information,” which applies to exemption 7D, “expose law enforcement techniques,” which applies to exemption 7E, “and endanger the life or physical safety of individuals.” That last one was the kicker, since it went above and beyond what exemptions 7D and 7E say. Seriously, if that last part were true, then they could have, and probably should have, cited exemption 7F, which deals with that very issue.
Someone. Could. DIE.
You know what? I think they’re bending the truth. You know what else? I think they’re flouting the law.
First, a little background:
On March 15, 2022, in celebration of Sunshine Week, then-Attorney General Merrick Garland provided guidelines to all federal agencies with regard to the FOIA Improvement Act of 2016. In it, he addressed the excessive use of exemptions by staff members when responding to FOIA requests. The goal, both in 2016 and 2022, was to improve openness in government.
“Information that might technically fall within an exemption should not be withheld from a FOIA requester unless the agency can identify a foreseeable harm or legal bar to disclosure,” he wrote. “In case of doubt, openness should prevail,” he added.
After the release of his guidelines, the Department of Justice’s Office of Information Policy (OIP) issued additional guidance, especially pertaining to the foreseeable harm standard, a term that was left open to interpretation. They advised: “The foreseeable harm analysis should be made on a case-by-case basis and agencies should individually consider the applicable harms for each record or similar category of records.”
They then cited the 2021 decision of the Court of Appeals for the District of Columbia, which had ruled that federal agencies need to “‘articulate both the nature of the harm [from release] and the link between the specified harm and specific information contained in the material withheld.’” Also: agencies can’t just say in general terms that something bad “could” happen if the information were released. They need to provide information supporting the conclusion that it “would” happen, which is ostensibly why the acting section chief told me that the lives or physical safety of individuals would be in danger if they released the FD-209s for LV 366-PC after all these years.
I think the FBI is bending the truth.
Reason 1: How can people’s lives be at stake if everyone is dead?
The subject of LV 366-PC’s conversations with the FBI in 1970—mobster Marty Fenster—is long dead, and two other mobsters who were mentioned along with Fenster—Frank Roger Milano and Pete Licavoli—are dead as well. Milano, the youngest, died in 2004; Fenster died in 1996; and Licavoli, the highest ranking and most well-known of the three, died in 1984. And the informant? Although it’s impossible to know if he’s alive or dead since we don’t know who it is, my money is on the latter. If my theory holds that LV 366-PC is Robert Maheu, then we know for sure that he’s dead, since Maheu died in 2008. But even if it’s not Maheu, chances are good that LV 366-PC is also dead since he was hanging out with men who were in their 60s 56 years ago.
But honestly? Whether the informant is alive or dead doesn’t much matter because the most likely people to be mad at the informant for talking to the FBI about Marty Fenster’s whereabouts are no longer a threat. In fact, I’d argue that the FBI should feel confident that if they were to give me LV 366-PC’s FD-209 forms concerning Marty Fenster’s whereabouts, literally no one would be in danger because the people whom the FBI considered dangerous are permanently out of the picture. You feel me?
Reason 2: Some confidential informants are treated more confidentially than others.
As I mentioned in my last post, the FBI has released dozens if not hundreds of FD-209s in the past. Some have only the identifying information redacted, while others are almost redaction-free. Many of the FD-209 forms that I’ve found online, available on the Mary Ferrell Foundation website, are from the FBI’s investigation into the assassination of Dr. Martin Luther King, Jr.
So I just have to ask: how is it that the FBI feels that the person who told them 56 years ago about the whereabouts of deceased mobster Marty Fenster and two of his also-deceased associates is deserving of a far greater degree of protection than what informants who spoke with them about the assassination of MLK received? Can someone from the FBI please explain?
Here are several of the many FD-209s that I found among the MLK records that are available on the Mary Ferrell Foundation website. The bottom one even concerns Carlos Marcello, who, it could be said, was most definitely a person who would “endanger the life or personal safety of individuals” if he ever got wind that they were talking to the FBI.
Reason 3 (my favorite): The FBI has released FD-209s on other informants who’d provided information about Pete Licavoli. Why won’t they do it for me?
If you were to line up the three mobsters whom LV 366-PC mentioned to the FBI in 1970—Marty Fenster, Frank Milano, and Pete Licavoli—Licavoli would stand out as the most dangerous. He’d been a mob boss in Detroit before moving to Arizona in the 1940s. Have you heard of the notorious Purple Gang? That’s the group he headed up, supplying liquor to Detroit, Toledo, and Cleveland during Prohibition. He was said to be involved in the St. Valentine’s Day Massacre. Senator Estes Kefauver, who’d led Congressional hearings on organized crime in 1950-51, said that Licavoli was “one of the most cold-blooded and contemptuous characters to appear before our committee.”
And yet…and YET…the FBI had no problem releasing the FD-209 forms for two, and possibly three, other confidential informants who’d squealed on Licavoli, not to mention a slew of other mobsters. Here are links to the full records, which I obtained from the Mary Ferrell Foundation website:
LV 25-C (Las Vegas Field Office)
DE 868-C-TE (Detroit Field Office)
DE [redacted]-C-TE (Detroit Field Office—it’s possible that this is the same informant as DE 868-C-TE)
So I have to ask a similar question to the one I asked before: how is it that the FBI feels that the person who told them 56 years ago about the whereabouts of deceased mobster Marty Fenster and his friends Frank Milano and Pete Licavoli is deserving of a far greater degree of protection than the informants who’d told them about Pete Licavoli and all those other mobsters?
I think the FBI is flouting the law.
According to Attorney General Garland, the whole point of implementing the foreseeable harm standard is to ensure that exemptions are used less, not more. You heard the man: when in doubt, “openness should prevail.”
Isn’t it just like the FBI to take that well-meaning guidance and turn it around so that, not only can they use the same exemptions they always have, but they can now defend their stance even more intimidatingly than before? They *appear* as if they’re following the letter of the law, when evidence suggests they aren’t.
Reason 1: After the Garland memo, exemption use increased.
One might predict that Merrick Garland’s guidelines would immediately result in fewer exemptions claimed by the FBI, but, for at least two-plus years, that’s not what happened.
Included below is a bar chart for exemptions 7D (re: confidential informants) and 7E (re: law enforcement techniques) that the FBI claimed for fiscal years 2020 through 2025. After Garland’s guidance in 2022, 7D and 7E exemptions actually went up, not down, with 2024 reaching peak levels.
With that said, there was a sizable drop in 2025, where the FBI claimed roughly 1000 fewer 7D exemptions than 2024’s levels and 7E exemptions dropped to slightly below 2022’s levels. This decrease could be partially due to the 43-day government shutdown in 2025, since the FBI processed roughly 2000 fewer requests that year than in 2024.
Still, when we look at the percentage of processed FOIA requests that received exemptions, 2025 seems to be an outlier. According to data compiled by the website FOIA.gov, 7D exemptions accounted for roughly 10% of all FOIA requests processed by the FBI for the years 2020-2023. Fiscal year 2024 experienced a higher percentage of 7D exemptions, at roughly 12%, but then 2025 demonstrated a significantly lower percentage, at 7.5%. Likewise, 7E exemptions were more in the 23-24% range for all FOIA requests for the years 2020-2023. This means that nearly one-quarter of all FOIA requests received by the FBI were slapped with a 7E exemption. In 2024, the percentage shot up to 27%, but in 2025, it fell back down to 23.8%.
Maybe we’re witnessing a downward trend in 7D and 7E exemptions—let’s hope so. I, for one, can’t wait to see the 2026 numbers when they’re in. Still, it does make me wonder: if the FBI is finally making an effort to limit the number of 7Ds and 7Es that they dole out to FOIA requesters, how is it that they’ve determined LV 366-PC and his friends Marty Fenster, Frank Milano, and Pete Licavoli to be the line that shouldn’t be crossed? And why was it OK for them to cross that line the other three times for Pete Licavoli?
Reason 2: There’s a fool-proof way to release FD-209 forms while protecting information that’s exempt from disclosure. The FBI isn’t using it.
Merrick Garland said something else in his guidance that I think is applicable to my case. In essence, he told federal agencies not to throw the baby out with the bathwater. OK, he didn’t use that phrase per se, probably because A) it’s bizarre and disturbing, and B) has anyone ever done that?? Merrick chose these words instead, quoting from the FOIA Improvement Act of 2016:
“When an agency determines that it cannot make full disclosure of a requested record, FOIA requires that it ‘consider whether partial disclosure of information is possible’ and ‘take reasonable steps necessary to segregate and release nonexempt information.’”
This is exactly what I’d suggested that the FBI do when I disputed their response, asking them to redact the portions that are exempt from disclosure and to release the rest. They didn’t care for my suggestion. Instead, they insisted that they’d followed the FBI’s standard operating procedures and stuck with their original response, Soup Nazi style—no FD-209s for you.
But the FBI has elected to use the partial-disclosure method in the past. Here are two examples in which the FBI redacted the identifying information on FD-209 forms and released the rest to the public. You can see other places where information has been blacked out under the MLK and Licovoli FD-209s above.
Which leads me to this question: how can the FBI say that they’re following standard operating procedures when their operating procedures vary so drastically, day to day and FOIA requester to FOIA requester?
Reason 3: When in doubt, the FBI appears to choose obstruction over openness.
As I mentioned earlier, the foreseeable harm standard leaves much open to interpretation, and OIP has given agencies a choice in how they should conduct their analysis. They can consider each record individually or they can analyze similar records as a group. They get to choose which.
In addressing my request, it appears as if the FBI chose to lump all of LV 366-PC’s FD-209 records together, which resulted in a broad and vague and intimidating explanation. Remember how they’re supposed to “‘articulate both the nature of the harm [from release] and the link between the specified harm and specific information contained in the material withheld.’”? The Court of Appeals for the District of Columbia wants specifics, please. But I didn’t get any of those. I received no explanation as to how people would be endangered by the “information contained in the material withheld,” whether we’re talking about the Marty Fenster/Frank Roger Milano/Pete Licavoli case or any other case the informant helped them out with.
Also, if FOIA staffers were truly following Merrick Garland’s rule of thumb, “In case of doubt, openness should prevail,” wouldn’t they want to review each FD-209 record individually in hopes that they might be able to give me something—anything—that would be responsive while not putting anyone in harm’s way?
Instead, they gave me a stern no and an implied “how dare you?”
I don’t think Merrick Garland would approve.
I’ll let you know how the OIP rules on my appeal.
SINCERE THANKS TO THE MARY FERRELL FOUNDATION FOR MAKING ALL OF THE ABOVE RECORDS AVAILABLE.
