Lame v. United States Department of Justice

654 F.2d 917 (1981) | Cited 62 times | Third Circuit | July 16, 1981


Anthony Lame appeals from the district court's entry of summary judgment for the United States Department of Justice in his action under the Freedom of Information Act. The district court held that the complete text of all the documents that Lame sought were exempt from FOIA disclosure. We hold that the district court did not utilize proper procedures in determining which documents or which portion of documents were exempt. Thus, its ruling based on inadequate submissions cannot be sustained. Accordingly, we reverse and remand.


Anthony Lame, the manager of an investigative reporting unit for a television station, planned to write a book concerning the "new" FBI. The book was to focus on the successful federal prosecution of Representative Herbert Fineman and Senator Henry J. Cianfrani, both former members of the legislature of the Commonwealth of Pennsylvania.1 On November 10, 1978 Lame requested access to the files that the United States Department of Justice maintained on the two prosecutions. Thereafter, he narrowed his request to include only Federal Bureau of Investigation FD-302 Forms ("forms utilized by the FBI to record information which may later become testimony" Toole affidavit, App. at 125a) reflecting interviews with individuals who, for the most part, he named.2

The FBI answered that it was unable to respond until Lame obtained and submitted notarized authorizations of the individuals whose FD-302s he sought. Lame refused to submit authorizations. Instead he demanded that the FBI rule on his request without them. The FBI informed Lame on March 7, 1979 that all the materials he sought were exempt from disclosure under 5 U.S.C. §§ 552(b)(7) (C) (unwarranted invasion of privacy exemption) and (7)(D) (confidential source and confidential information exemption).3 Lame took an administrative appeal to the Department of Justice, but the Office of Privacy and Information Appeals of that department affirmed the FBI's initial decision.

Lame then filed a complaint in the United States District Court for the Eastern District of Pennsylvania on November 7, 1979, seeking the release of the requested documents. Subsequently, Lame filed three sets of Interrogatories and two Requests for Production of Documents.

The government refused to supply any of the information Lame was seeking. Accordingly, Lame moved to compel discovery and the FBI moved for a protective order. The district court did not rule on either of these motions.

Both Lame and the government then filed motions for summary judgment. Attached to the government's motion was an affidavit of FBI Special Agent Daniel Toole (App. at 122a). Toole refused to confirm or deny the existence of the FD-302s sought by Lame, and set forth his reasons why he believed the information sought was exempt.

Lame submitted an affidavit with his motion for summary judgment. He explained that he had compiled the list of individuals whose 302s he desired by having reviewed the transcript of the trial of Representative Herbert Fineman and the related prosecution of Martin Abrams, and by having examined the Change of Plea Memorandum filed in the Senator Henry J. Cianfrani prosecution. A copy of the Cianfrani Change of Plea Memorandum was appended to Lame's affidavit. Lame's memorandum of law essentially maintained that since most of the information he sought was already public, the privacy and confidentiality exemptions should not preclude disclosure.

After oral argument the district court found this record inadequate on which to decide the summary judgment motions, and on June 24, 1980 granted the government thirty days in which to supplement the record.

The government then submitted an in camera affidavit to which several 302 forms were attached.4 The in camera affidavit repeated the government's legal claims of exemption under §§ 552(b)(7)(C) and (7)(D). The affidavit also discussed in general terms the FBI's position that disclosure would invade the privacy of named individuals, as well as the privacy of third parties mentioned. It claimed that in order to obtain the 302 interviews, assurances either express or implied, had been given to the interviewees that there would be no indiscriminate release to the public of their identities. The affidavit then specifically discussed the sample 302s attached to the affidavit.

On this record, the district court granted summary judgment for the government. The court first treated the privacy exception, balancing the public interest in learning about FBI techniques, against the embarrassment, harassment, and risk to personal safety that revelation of an interviewee's role might cause. The district court found it "highly relevant" that the material sought by Lame, or its equivalent, was to a large degree available by other means. It concluded that the privacy interests outweighed the public interest in disclosure and accordingly held that the 7(C) exemption was "properly asserted".

The district court next held that the 7(D) confidential source exemption was also applicable. The court failed to find whether the FBI had made express assurances of confidentiality or whether under the circumstances, assurances of confidentiality could reasonably be inferred. Maroscia v. Levi, 569 F.2d 1000, 1002 (7th Cir. 1977). On the record before it, the district court held that the government had met its burden of proving that the requested material was exempt from production.

Lame appeals, arguing that the procedure utilized by the district court was improper, and that the district court had erred in finding that the privacy and confidentiality exemptions were applicable. The government responds that the material sought was uniformly exempt, and accordingly that the procedure followed by the district court was proper because any further disclosure would reveal exempt information.


We turn first to an examination of the basic procedures to be used in Freedom of Information Act cases. We also examine the nature of the Section 7(C) and (D) exemptions in order to determine the merits of Lame's claim that the procedure employed by the district court were improper.


Underlying the Freedom of Information Act, as we recently noted in Coastal Gas Corp. v. Department of Energy, 644 F.2d 969 (3d Cir. 1981), is a belief that "an informed electorate is vital to the proper operation of a democracy." Id., at 974, quoting S.Rep.No.813, 89th Cong., 1st Sess. 3 (1965). Upon an appropriate FOIA request, federal agencies are therefore required to release promptly the information requested that is in their possession, subject to nine statutory exemptions. If the agency has failed to release the requested information, and administrative appeals have been exhausted, the individual seeking disclosure can obtain review of the agency's denial in a federal district court. Review is de novo and the Act places the burden of establishing that the requested materials are exempt from disclosure upon the agency. 5 U.S.C. § 552(a)(4)(B). Any reasonably segregable, non-exempt portion of a record is to be made available to the person requesting that record. Id.

The District of Columbia Circuit has developed FOIA procedures designed to allow informed adversarial argument, promote efficient judicial review at both the trial and appellate levels, and discourage conclusory claims of exemption. In the ordinary case, the agency must provide a detailed public justification for its claims of exemption. This justification must be accompanied by an index that "would correlate statements made in the Government's refusal justification with the actual portions of the document." Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820, 827 (D.C.Cir.1973) cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1979). There is support for the Vaughn procedures in the legislative history, see S.Rep. No. 93-854, 93d Cong. 2d Sess. 15 (1974) and they have been adopted by our court, see Ferri v. Bell, 645 F.2d 1213, 1222 (3d Cir. 1981); Coastal States Gas Corp. v. Department of Energy, 644 F.2d 969 (3d Cir. 1981). After the legal and factual issues in dispute have been put in focus by this procedure, the district court may still have to engage in an in camera inspection to determine whether the "records or any part thereof shall be withheld." 5 U.S.C. § 552(a)(4)(B) (1976). See Ferri v. Bell, supra, 645 F.2d at 1222.

In an unusual case the agency may not be able to provide the detailed index which Vaughn requires because such an index could reveal the very information that the agency claims is protected from disclosure. The agency, however, must still provide a "public affidavit explaining in as much detail as possible" the basis for the claimed exemption. Phillippi v. Central Intelligence Agency, 178 U.S. App. D.C. 243, 546 F.2d 1009, 1013 (D.C.Cir.1976). Obviously, the in camera procedure assumes greater importance when the public affidavit relies on generalities and provides little detail.

In Phillippi the requester sought records concerning the efforts of the CIA to convince the news media to withhold publishing their knowledge of the Glomar Explorer project. The CIA claimed it could not admit or deny the existence of the records sought because any connection of the CIA with the Glomar Explorer was itself exempt information. The district court granted summary judgment for the government based on two in camera affidavits along with a public affidavit by the CIA which was filed in support of the CIA's motion to have all material related to the case submitted to the court in camera. The Court of Appeals held that in the peculiar context of that case, where the government could neither confirm nor deny the existence of the documents, the use of in camera affidavits was proper. The court cautioned that before the district court should resort to the in camera examination, it should first:

require the Agency to provide a public affidavit explaining in as much detail as is possible the basis for its claim that it can be required neither to confirm nor to deny the existence of the requested records. The Agency's arguments should then be subject to testing by appellant, who should be allowed to seek appropriate discovery when necessary to clarify the Agency's position or to identify the procedures by which that position was established. Only after the issues have been identified by this process should the District Court, if necessary, consider arguments or information which the Agency is unable to make public.

Id. at 1013 (footnote omitted).

The Phillippi court then remanded to the district court because the appellant had not been given an opportunity to engage in appropriate discovery, and because the public affidavit had been prepared for another case, not for Phillippi. We approved the Phillippi standard in Ferri:

And if the agency is unable to articulate publicly the specific disclosure it fears and the specific harm that would ensue, then in camera inspection of a more detailed affidavit must be resorted to. See Phillippi v. Central Intelligence Agency, supra, 546 F.2d at 1013.

Ferri, 645 F.2d at 1224.

In sum, under ordinary circumstances a Vaughn index correlating justifications for non-disclosure with the particular portions of the documents requested, will generally suffice to narrow the disputed issues and permit a reasoned disposition by the district court. In a special circumstance such as the one presented by Phillippi, the public response by the government may of necessity be limited to an argument as to why no detailed information may be provided publicly. Such a response will alert the requester and the court to the bases on which the government is resisting disclosure so that, at the least, the government's theory may be contested by the requester. In both the ordinary and the exceptional case, in camera affidavits and submissions are authorized and the district court may resort to them in arriving at its ultimate determination. In both instances, the district court must have furnished to it, in whatever form, public or private, all of the detailed justifications advanced by the government for non-disclosure. The government must also give the court an opportunity to review all the materials which the government claims to be exempt, even though the decision whether to inspect these materials rests with the district court.


The government asserts that all the information which Lame requests is exempt from disclosure under 5 U.S.C. §§ 552(b)(7)(C) and (b)(7)(D).

Sections (b)(7)(C) and (b)(7)(D) make exempt from disclosure:

(7) investigatory records complied for law enforcement purposes, but only to the extent that the production of such records would ... (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source ....5

The Section 7(C) privacy exemption does not prohibit all disclosures which invade personal privacy, but only disclosures which entail an unwarranted invasion of personal privacy. The privacy protected is not only that of the confidential source, but also the privacy of third parties whom the confidential source has revealed. We discussed the privacy exemption in Ferri:

Exemption 7(C)"s protection of personal privacy is not absolute. As the trial court recognized, the proper approach to Ferri's request under a privacy-based exemption such as section 7(C) is a de novo balancing test, weighing the privacy interest and the extent to which it is invaded, on the one hand, against the public benefit that would result from disclosure, on the other. Committee on Masonic Homes of the R.W. Grande Lodge v. NLRB, 556, F.2d 214, 220 (3d Cir. 1977). See also Department of Air Force v. Rose, 425 U.S. 352, 373 (, 96 S. Ct. 1592, 1604, 48 L. Ed. 2d 11) (1976); Wine Hobby USA Inc. v. IRS, (502 F.2d 133, 135 (3d Cir. 1974)); Tennessean Newspaper, Inc. v. Levi, (403 F. Supp. 1318 (M.D.Tenn.1975)).

645 F.2d at 1217.

In Lamont v. Department of Justice, 475 F. Supp. 761, 776-77 (S.D.N.Y.) (footnote omitted), it was stated that the 7(C) exemption:

protects against the disclosure of the identity of individuals where such disclosure would likely cause embarrassment or harassment to the third party, either because sensitive, derogatory, or intimate personal information about him or her is contained in the file or because the person's cooperation with an FBI investigation would itself prove embarrassing.

In examining a privacy exemption, information given by testimony at trial or in other public proceedings achieves relevancy because the circumstances under which such testimony is given may indicate that the individual's privacy interest is substantially less compelling than might otherwise be assumed.

There can be no question that the 7(C) balancing test must be conducted with regard to each document, because the privacy interest and the interest of the public in disclosure may vary from document to document. Indeed these interests may vary from portion to portion of an individual document.6

Unlike the Section 7(C) privacy exemption, the Section 7(D) exemption does not require any balancing. If the information would reveal the identity of a confidential source, or confidential information given only by a confidential source, the information may be withheld without any consideration of the public interest. See Sands v. Murphy, 633 F.2d 968, 971 (1st Cir. 1980); Lesar v. United States Department of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472, 492 (D.C.Cir.1980); see also Church of Scientology v. United States Department of Justice, 612 F.2d 417 (9th Cir. 1979); Terkel v. Kelly, 599 F.2d 214 (7th Cir. 1979). But see Nix v. United States, 572 F.2d 998, 1002 (4th Cir. 1978).

Section 7(D) provides two protections. It protects from disclosure: (a) "the identity of a confidential source" and (b) for a criminal law investigation, "confidential information furnished only by a confidential source," see Duffin v. Carlson, 205 U.S. App. D.C. 1, 636 F.2d 709, 712 (D.C.Cir.1980). A person is a confidential source "if the person provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred." S.Rep.No. 1200, 93d Cong., 2d Sess. 13 (1974) U.S.Code Cong. & Admin.News, 6267, 6291 (Conference Report), reprinted in Freedom of Information Act and Amendments of 1974 (P.L. 93-502), Source Book: Legislative History, Texts and Other Documents at 230 (Joint Comm. Print 1975) (hereinafter "Source Book"). Whether there is an expressed or implied assurance of confidentiality is a question of fact to be determined in regard to each source. See Keeney v. Federal Bureau of Investigation, 630 F.2d 114, 119-120 (2d Cir. 1980); Deering Milliken, Inc. v. Irving, 548 F.2d 1131, 1137 (4th Cir. 1977).7

Once it has been determined that a source is confidential, all information that source has provided is exempt from disclosure under the second part of the exemption. A plain reading of the statute ("confidential information furnished only by the confidential source") might lead one to expect that non-confidential information that would not reveal the identity of the confidential source could be disclosed. Moreover, the use of the word "only" might suggest that if the information was provided by a non-confidential source, the identical information provided by a confidential source would not be exempt. However, such interpretations are not supported by the legislative history and case law.

The present language of § 552(b)(7) was added by amendment in 1974. The original amendment to this section as then proposed by Senator Hart and as passed by the Senate, protected investigatory law enforcement records to the extent that production of such records would "disclose the identity of an informer ..."8 120 Cong.Rec. 17033 (1974) reprinted in Source Book at 332. However, the final amendment of the statute as enacted protected from disclosure, not only information that would reveal the identity of a confidential source, but also information provided by a confidential source. See Keeney v. Federal Bureau of Investigation, 630 F.2d 114; Lesar v. United States Dept. of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472, 488-91 (D.C.Cir.1980); and Church of Scientology of California v. United States Dept. of Justice, 612 F.2d 417 (9th Cir. 1979) for a fuller description of the legislative history.

The Conference Report in referring to records compiled by a criminal law enforcement authority states that "all of the information furnished only by a confidential source may be withheld if the information was compiled in the course of a criminal investigation." (emphasis in original) Source Book at 230. In this connection Senator Hart stated that "the agency not only can withhold information which would disclose the identity of a confidential source, but also can provide blanket protection for any information supplied by a confidential source." 120 Cong.Rec. 36871 (1974) reprinted in Source Book at 451. Senator Robert Byrd remarked: "The language (of 552(b)(7)) has also been broadened substantially to protect from disclosure all of the information furnished by a confidential source to a criminal law enforcement agency if the information was compiled in the course of a criminal investigation." Source Book at 468. Likewise, Senator Kennedy, the Senate Conference Committee Chairman and Chairman of the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, explained that the bill "provided that there be no requirement to reveal not only the identity of a confidential source, but also any information obtained from him in a criminal investigation." Source Book at 459.

These legislative developments led the District of Columbia Circuit to write in Lesar v. United States Dept. of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472 (D.C.Cir.1980):

Exemption 7(D) differs from other FOIA exemptions in that its applicability depends not on the specific factual contents of a particular document; instead, the pertinent question is whether the information at issue was furnished by a "confidential source" during the course of a legitimate criminal law investigation. Once that question is answered in the affirmative, all such information obtained from the confidential source receives protection.

* Honorable Edward Dumbauld, United States District Judge for the Western District of Pennsylvania, sitting by designation.

1. Fineman was charged with mail fraud, obstruction of justice, obstruction of a criminal investigation, and interstate racketeering, and was convicted on two counts of obstruction of justice. Cianfrani was charged with mail fraud, obstruction of justice, interstate racketeering and income tax evasion. He entered pleas of guilty or nolo contendere on all counts. The government produced evidence of various types of political corruption, including evidence of pay-offs made to obtain political influence that would help assure admission to medical and other professional schools.

2. Lame also requested all 302s regarding "all other officials of Jefferson Medical College" and "all other State Legislators and/or state officials" that were in the Fineman file and all 302s regarding "any other officials of (the) University of Pennsylvania" in the Cianfrani file.

3. For the text of these exemptions, see infra.

4. Both the district court and this court examined that affidavit and attachments, but no disclosure of their contents has been made to Lame.

5. It is not contested that the records requested by Lame were investigatory records compiled for law enforcement purposes under § 552(b)(7) as well as records compiled by a criminal law enforcement authority in the course of a criminal investigation. See § 552(b)(7)(D). In Committee on Masonic Homes v. NLRB, 556 F.2d 214 (3d Cir. 1977) we wrote that union authorization cards were not records compiled for law enforcement purposes. We stated that: (w)e think "law enforcement purposes' must relate to some type of formal proceeding, and one that is pending. 6 6 The NLRB argues that the cards may well be used in some future unfair labor practice proceeding. That is not enough. If it were, nearly all NLRB records could fit this definition. However, we do not read Masonic Homes as standing for the principle that once a law enforcement proceeding has been completed, the compiled records lose their protection because the proceeding is no longer pending. It only supports the view that a mere hypothetical possibility of a future enforcement proceeding is not sufficient to treat records as law enforcement records when there is no pending, and has been no prior, enforcement proceeding. See Ferri v. Bell, supra, 645 F.2d at 1223. It has not been questioned that "exemption 7 is not rendered unavailable by the termination of the active investigation relating to these documents." Pope v. United States, 599 F.2d 1383, 1387 (5th Cir. 1979). We assumed the validity of this principle in Ferri v. Bell, supra, 645 F.2d at 1217.

6. We are not persuaded by the government's argument that there exists a per se rule that the mere connection of an individual with a criminal investigation, constitutes an unwarranted invasion of his privacy. See Common Cause v. National Archives & Records Serv., 202 U.S. App. D.C. 179, 628 F.2d 179, 184 (D.C.Cir.1980); Congressional News Syndicate v. United States Dept. of Justice, 438 F. Supp. 538, 543-44 (D.D.C.1977).

7. In the debate on the final version of the 1974 amendments to the Act, Senator Hart, who introduced the original amended version of Exemption 7, stated that "all the FBI has to do is to state the information was furnished by a confidential source and it is exempt." 120 Cong.Rec. 36871 (1974). We do not construe this statement to mean that a court must automatically defer to the FBI's characterization of a source. Nor have any other courts taken Senator Hart's statement literally. As the Conference Report, discussed in text infra, indicates, a court must determine whether there has been an implied or express assurance of confidentiality. See, e.g., Keeney v. Federal Bureau of Investigation, 630 F.2d 114 (2d Cir. 1980); Maroscia v. Levi, 569 F.2d 1000, 1002 (7th Cir. 1977).

8. In full, the proposed amendment to Section (b)(7) read: Section 552(b)(7) is amended to read as follows: "Investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication or constitute a clearly unwarranted invasion of personal privacy, (C) disclose the identity of an informer, or (D) disclose investigative techniques and procedures." This section prior to 1974 exempted from disclosure only "investigatory files compiled for law enforcement purposes except to the extent available by law to a private party." Pub.L. No. 89-487, 80 Stat. 251 (1966).

9. In answer to the argument that information contained in an agency's files can no longer be regarded exempt as confidential because the source has relinquished his confidentiality by testifying, Judge Swygert, writing for the court in Scherer v. Kelley, 584 F.2d 170, 176 n.7 (7th Cir. 1978), cert. denied, 440 U.S. 964, 59 L. Ed. 2d 778, 99 S. Ct. 1511 (1979), wrote: Because a person may have given testimony at a trial on a specific topic does not mean that all information offered by that source upon a guarantee of confidentiality automatically becomes available to the person to whom it relates. The nontestimonial information may be far more damaging than any testimony freely given and may place the source in great peril. A source would be unlikely to testify on any subject if he or she know that by so doing every transcription made by an investigative agent regarding their conversations could be released to the party about whom the source was informing.

10. The FBI's position that it could not even admit or deny the existence of FD-302s distinguishes this case from those cases where the thrust of the exemption was directed only to the contents of particular documents. Thus, in this case even the use of codes would be inconsistent with the position taken by the government.

11. We observe the obvious danger that may be present in a "sampling" case: the government may choose to submit information on "representative" documents for which its claims of exemption are the most persuasive. If the district court wished to examine only a portion of the records, it, not the government, should have chosen the sample.

12. We do not mean to imply that indeed if an exemption is justified, the identity of the 302s must be revealed. The findings to which we refer can be couched in terms which will still protect the identity of the sources. No individual identification need be given as long as it appears that the documents have been individually examined and analyzed. We expressly intimate no views with respect to the ultimate decision which the district court may reach after it has been furnished with the explanations and documents necessary for an appropriate de novo review.

1. In particular it should be noted that under 5 U.S.C. 552(b)(7)(D) if information is given by a "confidential source," all the information from such source is exempt from disclosure (even if the same information is publicly available elsewhere). Moreover, a "confidential source" includes any person giving information in confidence and is not limited to the "informants" whose danger from criminals implicated by their "singing" has often been discussed. Roviaro v. U. S., 353 U.S. 53, 59, 77 S. Ct. 623, 627, 1 L. Ed. 2d 639 (1957).

2. "Each document and its asserted exemption must be individually explained in terms of privacy or confidentiality.... The government does not explain ... why it has not analyzed every requested document and furnished the court with an explanation as to its purported exempt status." Garth opinion, p. 928.

3. Conversely, past events or misconduct may be evidence of future unfitness to exercise a profession or office of trust. "Past conduct may well relate to present fitness; past loyalty may have a reasonable relationship to present and future trust." Garner v. Los Angeles Board, 341 U.S. 716, 720, 71 S. Ct. 909, 912, 95 L. Ed. 1317 (1951), and other cases cited in Dumbauld, The Constitution of the United States (1964) 199-200.

4. It must be emphasized that in the case at bar the District Judge merely stated that "persons who cooperate with the FBI often do so with the expectation that their privacy will be respected" (Italics supplied). This falls far short of finding that the persons interviewed in the case at bar expected confidentiality.

5. Barr v. Matteo, 360 U.S. 564, 571, 79 S. Ct. 1335, 1339, 3 L. Ed. 2d 1434 (1959), citing Learned Hand in Gregoire v. Biddle, 177 F.2d 579, 581 (C.A.2, 1949).

6. While it may be going too far to accept the Bureau's position that such interviews are always on a confidential basis, it seems clear that the average citizen would entertain a normal expectation of confidentiality. Perhaps to minimize controversy the Bureau might adopt a policy of reading to all persons interviewed a statement (and having them sign it) similar to the statements regarding Miranda rights. It would then be clear, without prolonged debate, whether confidentiality has been claimed or waived.

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