DOW JONES & COMPANY, INC., Appellant, v. DEPARTMENT OF JUSTICE.
No. 89-5353.
United States Court of Appeals, District of Columbia Circuit.
Argued April 30, 1990. Decided July 24, 1990. As Amended Oct. 5, 1990. As Amended Nov. 8, 1990.
917 F.2d 571
John F. Manning, of the bar of the Supreme Court of the Com. of Pa., pro hac vice, by special leave of the Court, with whom Larry L. Simms, Washington, D.C., was on the brief, for appellant. Paul Blankenstein, Washington, D.C., also entered an appearance, for appellant.
Nathan Dodell, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.
Before EDWARDS, SILBERMAN and WILLIAMS, Circuit Judges.
Opinion for the Court filed by Circuit Judge SILBERMAN.
Concurring Opinion filed by Circuit Judge HARRY T. EDWARDS.
SILBERMAN, Circuit Judge:
Dow Jones & Company, Inc. appeals from the judgment of the district court denying it access under the Freedom of Information Act (“FOIA“),
I.
On May 31, 1988, John C. Keeney, the Acting Assistant Attorney General of the Criminal Division of the Justice Department, sent a letter to Representative Julian C. Dixon, Chairman of the House Ethics Committee. The letter revealed that the Justice Department had been conducting a grand jury investigation into whether Representative St Germain‘s receipt of free meals and entertainment was in violation of any criminal laws. The Department explained that “because certain technical requirements оf the relevant statutes make it uncertain that [the Department] would be able to meet the standard of proof of guilt beyond a reasonable doubt,” it had declined to prosecute. But the Department also stated in the letter that the investigation had uncovered “substantial evidence of serious and sustained misconduct by Representative St Germain,” and the Department explained that it was therefore referring the matter to the Ethics Committee to determine whether any House standards of conduct had been violated. Crucially for this case, the letter outlined some of the information the Department had obtained in interviews conducted in the course of the investigation.
The district court granted the Department‘s motion for summary judgment, sustaining the Department‘s denial of the FOIA request. See Dow Jones & Co., Inc. v. Department of Justice, 724 F.Supp. 985 (D.D.C.1989). The court held that the Department could properly withhold the redacted portion under Exemption 5 of FOIA,
The district court decided that Exemption 7(C),
Dow Jones challenges all of the district сourt‘s determinations. The Department, however, has chosen to defend the court‘s judgment only on Exemptions 5 and 7(D) grounds—it has dropped the Exemption 7(C) claim.
II.
Under FOIA, “virtually every document generated by an agency is available to the public in one form or another, unless it falls within one of the Act‘s nine exemptions.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136, 95 S.Ct. 1504, 1509, 44 L.Ed.2d 29 (1975). Exemption 5 of the statute permits an agency to refuse to disclose to the public “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.”
The Justice Department here relies on the common law “deliberative process” or “executive” privilege as one of the privileges incorporated into Exemption 5. This ancient privilege is predicated on the recognition “that the quality of administrative decision-making would be seriously undermined if agencies were forced to operate in a fishbowl.” Wolfe v. Department of Health and Human Servs., 839 F.2d 768, 773 (D.C.Cir.1988) (en banc).
The Department argues that the district court correctly decided that Exemption 5 covers materials sent from an Executive Branch agency to Congress. In other words, the government reads the word “inter-agency” to include inter-branch communications. The district court conceded that the government‘s interpretation does not comport with a “strict reading” of the language, but it thought a strict reading would frustrate the purpose of the statute. See 724 F.Supp. at 988. That is so, argues the government, because Congress exempted itself from FOIA, thereby protecting all of its internal deliberations. Therefore, it could not have intended that Executive Branch communications to Congress for the purpose of Congress’ own internal deliberations be disclosable under FOIA.
It is an appealing argument. It may well be true that if Congress had thought about this question, the Exemption would have been drafted more broadly to include Executive Branch communications to Congress, such as the letter sought here. But Congress did not, and the words simply will not stretch to cover this situation, because Congress is simply not an agency.
Section 552(f) defines “agency” as follows:
For purposes of this section, the term “agency” as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.
To be sure, we did say in Ryan v. Department of Justice, 617 F.2d 781, 790 (D.C. Cir.1980), that “Congress apparently did not intend ‘inter-agency’ and ‘intra-agency’ to be rigidly exclusive terms.” Id. at 790. The government relies on Ryan, as did the district court. In Ryan, we held that questionnaires sent by the Justice Department to every Senator were intra-agency documents protected by Exemption 5 despite the fact that the materials physically left the Department (they were later returned by the Senators). The Department, in evaluating its own efforts to recommend more women and minorities to the federal bench, sought information from each Senator on how he or she selected potential nominees. We noted that in the course of internal deliberations an agency “often needs to rely on the opinions and recommendations
Similarly, in Formaldehyde Institute, we determined that Exemption 5 applies even to an implicit consultation relationship between an agency and outsiders. See 889 F.2d at 1124-25. In that case, an agency employee, acting in his оfficial capacity, submitted a scholarly article to a professional journal for possible publication. After consulting outside reviewers, the journal decided not to publish the article. We thought the journal‘s letter to the agency (with attached referee‘s comments) an intra-agency document because the agency had routinely used the journal‘s review process as part of the agency‘s own decision whether to publish and in what form. We reiterated that “[w]hether the author [of the document subject to the FOIA request] is a regular agency employee or a temporary consultant is irrelevant; the pertinent element is the role, if any, that the document plays in the process of agency deliberations.” Id. at 1122 (quoting CNA Financial Corp. v. Donovan, 830 F.2d 1132, 1161 (D.C.Cir.1987), cert. denied, 485 U.S. 977, 108 S.Ct. 1270, 99 L.Ed.2d 481 (1988)).
Ryan (and Formaldehyde), then, stand for the proposition that Exemption 5 permits an agency to protect the confidentiality of communications from outside the agency so long as those communications are part and parcel of the agency‘s deliberative process. As such, they remain intra-agency documents. None of our cases have extended that notion, however, to the protection of deliberations of a non-agency either as an interpretation of “intra-agency” or “inter-agency.” In the case at bar, the Department had unquestionably ended its consideration as to whether to prosecute, or in any other way proceed against, Representative St Germain before it sent the letter to Congress. For that reason, we do not think that the Department‘s letter to the House Ethics Committee can be withheld under Exemption 5.2
III.
That brings us to the Department‘s alternative argument, that Exemption 7(D) justifies withholding of those parts of the letter that reflect information obtained from FBI witness interviews. 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 . . . and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation . . ., information furnished by a confidential source.”
As with the other FOIA exemptions, “the burden is on the agency to sustain its action.”
Dow Jones contends that it has rebutted the Schmerler presumption.4 Those individuals who provided the FBI with information—the allegedly confidential sources—merely described to the FBI matters which presumably occurred in public view. They apparently told the FBI whom Representative St Germain dined with and on what occasions. In the absence of any showing on the part of the government that these sources had some kind of personal or business relationship with the ex-Congressman, Dow Jonеs argues that there is no reason to believe that they wished confidentiality. We do not think that that proposition follows at all. We doubt that those who
witness a congressman‘s public behavior—whether other congressmen, lobbyists, or restaurant employees—would typically appreciate being identified as the FBI‘s witnesses. Public behavior of the congressman is one thing; public identification of the witnesses is quite another. We think appellant‘s claim regarding all the witnesses is even weaker than that rejected in Schmerler.
In Schmerler, a Columbia University anthropology graduate student conducting research at an Indian reservation was sexually assaulted and murdered almost sixty years ago. The victim‘s nephew, in the course of writing a book about the event, sought disclosure of the FBI files covering the investigation. He particularly wanted the identities of certain individuals at Columbia University who provided character information about the victim. We were not persuaded by the argument that since the information the individuals provided was presumably favorable they needed not fear reprisals (if they were still alive), and that confidentiality was therefore not implicit in those interviews. We refused to be drawn into a sixty-year-old dispute over whether the witnesses would have objected to the public dissemination of their statements. To avoid that sort of difficult, ad hoc line drawing, we concluded that whether a source is confidential cannot turn on the substance of the information given. See Schmerler, 900 F.2d at 337-38; see also King, 830 F.2d at 233 (“[I]t is difficult, if not impossible, to anticipate all respects in which disclosure might damage reputations or lead to personal embarrassment and discomfort.“) (internal quotations and citations omitted).
The district court issued its opinion before Schmerler and therefore distinguished between the sources, holding that the government had established confidentiality with respect to only the primary witness and the associate of the primary witness. In light of the presumption, however, we do not draw any distinctions among the witnesses. All of them were interviewed as part of the FBI‘s investigation into the question of whether Representative St Germain had committed a crime. As such, all the sources are presumed confidential under Exemption 7(D).
Accordingly, the district court‘s judgment is affirmed in part and reversed in part.
It is so ordered.
HARRY T. EDWARDS, Circuit Judge, concurring:
I agree with the majority that the decision in Schmerler v. FBI, 900 F.2d 333 (D.C.Cir.1990), is controlling in the case before us, and I therefore concur in the judgment. In my view, however, Schmerler‘s “presumption of confidentiality” is founded on a flawed interpretation of the Freedom of Information Act (“FOIA“). Although I am constrained to follow the holding of Schmerler, for it is the law of the circuit, I nevertheless write separately to express my concerns about the viability of this precedent under FOIA.
FOIA plainly states that “the burden is on the agency to sustain” the invocation of any FOIA exemption.
I believe that our approach to “implied confidentiality” prior to Schmerler avoided these pitfalls. In both Keys v. Department of Justice, 830 F.2d 337 (D.C.Cir.1987), and King v. Department of Justice, 830 F.2d 210 (D.C.Cir.1987), the court found implied assurances of confidentiality only upon identifying specific circumstances supporting the inference that confidentiality was necessary to elicit information. See Keys, 830 F.2d at 345-46 (concern of Communist party members that disclosure of identities would cause harassment by other members); King, 830 F.2d at 235 (close allegiance between subject of investigation and interviewee created conflict of allegiance). These cases nowhere suggest that the burden is on the plaintiff to disprove the FBI‘s need for confidentiality. The statement in Keys from which Schmerler derives its presumption of confidentiality—that “promises of confidentiality [are] ‘inherently implicit‘” in FBI interviews, 830 F.2d at 345 (quoting Miller v. Bell, 661 F.2d 623, 627 (7th Cir.1981), cert. denied, 456 U.S. 960, 102 S.Ct. 2035, 72 L.Ed.2d 484 (1982))—merely reports one of the standards in use in other circuits. Indeed, in attempting to reconcile apparently divergent approaches among the circuits, the Keys court suggested that Miller‘s “inherently implicit” standard was perfectly compatible with a fact-specific inquiry into whether an inference of confidentiality was warranted. See 830 F.2d at 345-46.
All the same, I acknowledge that Schmerler is now the law of the circuit. I cannot accept the appellee‘s suggestion that we should treat Schmerler as nonbinding because the FOIA plaintiff‘s brief in that case did not adequately dispute the Government‘s depiction of the standard of proof under Exemption 7(D). This court is fully aware of its independent duty to determine what the law is before applying it. It is no doubt tempting to redescribe as “dicta” holdings with which we disagree, but we cannot do so while remaining faithful to the principle that panel decisions bind future panels. In sum, unless and until Schmerler is repudiated by an authority higher than the panel that issued it, this court must abide by it.
Before: WALD, Chief Judge, MIKVA, EDWARDS, RUTH B. GINSBURG, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG, SENTELLE, THOMAS, HENDERSON, and RANDOLPH, Circuit Judges.
ORDER
Oct. 5, 1990.
Appellant‘s Suggestion for Rehearing En Banc has been circulated to the full court. The taking of a vote was requested. Thereafter, a majority of the judges of the court in regular active service did not vote in favor of the suggestion. Upon consideration of the foregoing, it is
A separate statement of Circuit Judge SILBERMAN concurring in the denial of rehearing en banc, with whom WILLIAMS, Circuit Judge, joins, is attached.
A separate statement of Circuit Judge EDWARDS dissenting in the denial of rehearing en banc, with whom WALD, Chief Judge, and MIKVA, Circuit Judge, concur, is attached.
SILBERMAN, Circuit Judge, concurring in the denial of rehearing en banc, with whom WILLIAMS, Circuit Judge, joins:
Appellant‘s primary argument for rehearing is based on the notion that our opinion—and Schmerler, on which it is based—rely on an unjustifiably strong presumption that when the FBI interviews witnesses in a criminal investigation, those witnesses are a “confidential source” within the meaning of Exemption 7(D). It is argued that this presumption is inconsistent with the undisputed proposition that the government has the burden of proof in FOIA cases. But the presumption is directed, strictly speaking, not at the burden of proof, but at the quantum of evidence necessary to carry the burden. Cf. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (discussing allocation of burden of proof in Title VII cases and how an inference creates a presumption in the prima facie case). Fixing the burden of proof on a party is plainly not inconsistent with a substantive rule identifying specific facts that will carry the burden.
Confidentiality, of course, is a relative term. When a witness tells an FBI agent something relevant to a criminal investigation the witness assumes, absent special circumstances, that other FBI and law enforcement personnel will have access to the information, which, in a sense, makes the divulgence less “confidential” than if the agent would swear not to tell a soul. But it cannot be seriously argued that one‘s status as a “confidential source” should turn on the precise scope of that expectation of confidentiality.
There is always some element of confidentiality in this setting unless, at a minimum, both the agent and the witness are wholly indifferent to publication. Our holding in Schmerler, which we follow here, is merely that the element of confidentiality typically present in such interviews satisfies the “confidential source” standard. Otherwise, the FBI would routinely be compelled to produce evidence as to the particular expectations of the interviewee and the agent, and we would be obliged on a case-by-case basis to try to determine just how much confidentiality qualifies as a “confidential source.” By identifying the set of circumstances that suрport a strong inference of confidentiality, subject to the possibility of exception in an extraordinary case, we seek to avoid ad hoc decisionmaking. Cf. Schmerler v. Federal Bureau of Investigation, 696 F.Supp. 717 (D.D.C.1988) (relying on a number of unique factors), rev‘d, 900 F.2d 333 (D.C.Cir.1990). Because at least some element of confidentiality is virtually always present, United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 109 S.Ct. 1468, 1483, 103 L.Ed.2d 774 (1989) counsels that we treat such questions generically.
EDWARDS, Circuit Judge, dissenting in the denial of rehearing en banc, with whom WALD, Chief Judge, and MIKVA, Circuit Judge, concur:
I concurred in the panel opinion in Dow Jones & Co. v. Department of Justice, 917 F.2d 571, 577 (D.C.Cir.1990) (Edwards, J., concurring), because I was bound to apply the law of the circuit, regardless of the flaws that I perceived in it. I cannot concur, however, in today‘s decision of the full court not to correct a panel decision whose result rests squarely upon a striking misapplication of precedent and a bold disregard for the statute it purports to interpret.
The Freedom of Information Act establishes that Government records are open to public disclosure, subject only to nine “exclusive” and “narrowly construed” exemptions. See Department of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976). One such exemption
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 expеcted to disclose the identity of a confidential source . . . and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation . . ., information furnished by a confidential source.
The Dow Jones majority is excessively modest in suggesting that Dow Jones and Schmerler held “merely that the element of confidentiality typically present in such [F.B.I.] interviews satisfies the ‘confidential source’ standard.” See Statement of Silberman, J., concurring in the denial of rehearing en banc (emphasis added). In fact, the judgment in Schmerler is a rather remarkable example of judicial invention, for the holding of the court bears no discernible relationship to the statute under review. Schmerler, by judicial fiat, simply does away with Exemption 7(D)‘s express “confidential source” limitation through the invention of a presumption that anyone providing information to the F.B.I. has done so under a promise of confidentiality. In so doing, Schmerler changed the law of this circuit, see Dow Jones, 917 F.2d at 577 (Edwards, J., concurring), casting it at odds not only with the law in other cirсuits, id., but more to the point, with the will of Congress expressed in the statute itself.
The presumption created in Schmerler, and reinforced in Dow Jones, flatly defies FOIA‘s unmistakable admonition that “the burden is on the agency to sustain” the invocation of any listed exemption.
The majority seems to believe that adherence to the presumption invented in Schmerler represents an improvement in FOIA‘s statutory design, because application of the statute as it was written—requiring the Government to carry its burden of showing each element necessary to invoking Exemption 7(D), including the requirement that the information it desires to protect was actually derived from a “confidential source“—would be unduly burdensome to both the F.B.I. and the courts. See Statement of Silberman, J., concurring in the denial of rehearing en banc (“Otherwise, the FBI would routinely be compelled to produce evidence as to the particular expectations of the interviewee and the agent, and we would be obliged on a case-by-case basis to try to determinе just how much confidentiality qualifies as a ‘confidential source.‘“). Burdensome or not, we are constrained to enforce the statute as it was written by Congress.
The perils of the majority‘s course are quite plain: “[I]f courts were free to ‘correct’ what they believe to be congressional oversights by construing unambiguous statutes to the contrary of their plain meaning—apart from that rare case in which specific legislative history compels such a result—even a good faith attempt to further Congress‘s goals would open the way to judicial hijacking of the power to legislate.” Consolidated Rail Corp. v. United States, 896 F.2d 574, 579 (D.C.Cir. 1990) (D.H. Ginsburg, J.). It is not the role of this court to rewrite statutes to satisfy the legislative policy preferences of the judges. Because, in my view, Schmerler and Dow Jones smack of “judicial hijacking of the power to legislate,” I dissent from