Exemption 7(D) of the Freedom of Information Act - the evidentiary showing the government must make to establish that a source is confidential.

AuthorSalzman, Matthew J.
PositionSupreme Court Review - Case Note

    In United States Department of Justice v. Landano,(1) the Supreme Court held that Federal Bureau of Investigation (FBI) sources in criminal investigations are not presumed to be "confidential sources" pursuant to Exemption 7(D) of the Freedom of Information Act (FOIA).(2) The Court established two factors in determining whether or not a particular source is presumed confidential: (1) the nature of the crime and (2) the source's relation to the crime.(3) these considerations support an inference that the source gave information in confidence, then the source qualifies as a confidential source.(4)

    This Note examines the Court's treatment in Landano of the tension between the broad disclosure of FOIA and the broad protection from disclosure of Exemption 7(D). This Note contends that the Court properly interpreted the statute as it currently exists. However, this Note suggests that a rebuttable presumption of confidentiality for FBI sources in criminal investigations would better serve Exemption 7(D)'s purpose of effective law enforcement without compromising FOIA's purpose of public scrutiny. Thus, this Note argues that Congress should amend Exemption 7(D) of FOIA to provide a presumption of confidentiality.



      In 1966, Congress enacted FOIA to protect "the public's right to know the operations of its Government" by "establish[ing] a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language."(5) Eager to strengthen this philosophy of full disclosure, Congress amended the statute in 1974.(6) The amendment required that the Government specify some harm in order to claim the exemption" instead of "affording all law enforcement matters a blanket exemption."(7) Congress intended "to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed."(8)

      Congress expressly limited the disclosure by delineating exemptions, but did not intend them to detract from FOIA's policy of public disclosure.(9) Thus, exemptions generally are construed narrowly.(10) Nonetheless, the public's interest extends only to information that exposes the government's performance of its duties,(11) and the exemptions are intended to have meaningful reach and application.(12) Furthermore, since FOIA was not intended as a supplement for discovery,(13) litigants (such as Landano) merely have the same right to information as the rest of the public; their claim cannot be enhanced by their predicament.(14)

      Despite the narrow construction of the exemptions, when Congress first enacted FOIA, Exemption 7 broadly protected all law enforcement investigatory files.(15) Congress recognized that "it is also necessary for the very operation of our Government to allow it to keep confidential certain material, such as the investigatory files of the [FBI]."(16) While Congress wanted to strengthen disclosure in 1974, it simultaneously wanted to enact a broad exemption for law enforcement.(17) Consequently, it created Exemption 7(D), which, according to Senator Hart (who authored and proposed the exemption), allowed the FBI "not only [to] withhold information which would disclose the identity of a confidential source but also [to] provide blanket protection for any information supplied by a confidential source. . . . [A]ll the FBI has to do is to state that the information was furnished by a confidential source and it is exempt."(18) Additionally, in 1986 Congress amended FOIA and further broadened Exemption 7(D).(19) The exemption now protects a wide range of information.

      [Exemption 7(D) protects] records or information compiled for law

      enforcement purposes, but only to the extent that the production of

      such law enforcement records or information ... could reasonably be

      expected to disclose the identity of a confidential source, including a

      state, local, or foreign agency or authority or any private institution

      which furnished information on a confidential basis, and, in the case of

      a record or information compiled by a criminal law enforcement authority

      in the course of a criminal investigation ... information furnished

      by a confidential source.(20) Thus, the broad protection of Exemption 7(D) undermines FOIA's general philosophy of broad disclosure with narrowly construed exemptions.

      FOIA explicitly places the burden of proving that exemptions apply on the Government.(21) Exemption 7(D)'s application depends not upon the nature of the information itself, but upon whether the information was furnished by a confidential source.(22) The Conference Report of the 1974 Amendment determined that a source was confidential if it "provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred."(23) Since determining whether an agent gave an express assurance is usually straightforward, disputes usually arise over whether an assurance may be inferred from the circumstances. Ultimately, Congress sought "to reach a workable balance between the right of the public to know and the need of the Government to keep information in confidence."(24) Given this legislative history, it was left up to the courts to determine exactly how the Government could satisfy its burden of proof to invoke Exemption 7(D).


      The circuit courts took two approaches in determining what the Government must prove to withhold information under Exemption 7(D). Some circuits placed a significant burden upon the Government and required it to prove that the circumstances could indeed support an inference of an assurance of confidentiality.(25) Other circuits placed a considerably more lenient burden on the Government, recognizing that assurances of confidentiality are "inherently implicit" during Government investigations.(26)

      1. The First Approach: The Government Bears a Significant Burden

        The first approach, and all its variations, emphasized the fact that FOIA placed the burden of proof on the Government, not the "requester."(27) In an early case, Vaughn v. Rosen,(28) the Court of Appeals for the District of Columbia found that the requester typically does not have any knowledge of the information being withheld, and thus could not effectively contest the decision.(29) To preserve fairness and the benefits of the adversarial system, the court developed the "Vaughn Index," which required the Government to present a detailed justification for withholding information and to specify which exemption it was employing for each portion of a document it chose to withhold.(30) The court recognized that the burden on the Government was substantial, but found that the alternative--allowing the Government to utilize an exemption by merely asserting it applied--essentially shifted the burden to the requester.(31) This shift, the court held, was inconsistent with the statutory mandate of placing the burden on the agency seeking to avoid disclosure.(32) While subsequent D.C. Circuit decisions have strayed from this approach,(33) Vaughn laid the foundation for those circuits that placed a significant burden on the Government.

        The Ninth Circuit utilized a slight variation of this approach. As in Vaughn, the Ninth Circuit focused on providing the requester with the opportunity to effectively contest the use of the exemption, thereby utilizing the adversarial System.(34) In Wiener v. FBI,(35) Professor Wiener requested access to all FBI records pertaining to John Lennon for academic research.(36) The Ninth Circuit found that in addition to the circumstances supporting an inference of an assurance of confidentiality, they must also support an inference that the FBI concluded that the source would not have cooperated absent such an assurance.(37) Since the FBI did not describe the circumstances with particularity, the court held that the Bureau failed to meet its burden.(38)

        The Second Circuit's variation, its "functional approach," required both that the source would not have revealed the information and that the lack of information would have hindered the investigation.(39) In Donovan v. FBI,(40) the families of four American churchwomen who were murdered in El Salvador requested access to all government documents pertaining to the FBI's investigation of the murders.(41) The Second Circuit determined that "an implicit promise of confidentiality may be found when 'it is apparent that the agency's investigatory function depends for its existence upon information supplied by individuals who in many cases would suffer severe detriment if their identities were known.'"(42) The court held that the agency satisfied its burden because the FBI's investigation would have been severely curtailed if its sources had feared disclosure.(43)

        Like the Second Circuit, the Fourth and Eighth Circuits' variation did not emphasize the importance of effective advocacy.(44) In Nix v. United States,(45) plaintiff sought records of an investigation based on his complaint of an assault while he was in prison.(46) The Fourth Circuit found that the agency had "to show that the information was furnished under circumstances from which an assurance of confidentiality could reasonably be inferred."(47) The Government met its burden by proving that the information was provided from a prison setting with the threat of violent reprisals.(48) The court held that these circumstances supported the inference of an assurance of confidentiality.(49) This variation, along with all the other variations, followed the express language of the statute by placing the burden on the Government to convince the court that information was furnished under circumstances from which an assurance of confidentiality could reasonably be inferred.

      2. The Second Approach: The Government Does Not Bear a Significant Burden

        The majority of...

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