Joseph P. Londrigan v. Federal Bureau of Investigation

not independent Interpol.”46 Consequently, not entities of each other. The USNCB is court took position disapprove USNCB was we the District Court’s order required sought-after to retrieve the requiring docu- to retrieve USNBC and index Interpol ments already Interpol. from under the FOIA sec- documents forwarded to providing for search and collection of forth, For the reasons set the District requested “the records from facilities field reversed, appealed Court’s orders from are separate and other establishments that are pro- and the case is remanded for further processing request.”42 the office ceedings opinion.47 with consistent agree We do not with that rationale. Al- ordered. So though Interpol, USNCB is an affiliate of it serves as the United liaison States organization;

with the is neither agent

branch nor an Interpol. This char-

acterization is in accord with v. Unit- Sami States;43

ed where we held that “USNCB exclusively agent as an of the nation-

act[s] created, staffed, government

al fi- it,”44 equipped nanced and and that there- LONDRIGAN, Joseph Appellant P. presence fore the of USNCB in the District v. enough Columbia was not to establish a FEDERAL BUREAU OF predicate personal jurisdiction INVESTIGATION. District Interpol.45 Court over reasoning applies The same full force in No. 79-1403.

the instant If case. USNCB is not suffi- Appeals, United States Court ciently subject Interpol related to District of Columbia Circuit. jurisdiction latter of the District Court, surely Interpol party is a third in the Argued Feb. 1980. eyes sum, Kissinger. agree with Decided Dec. 1981. the Government that relationship “[t]he Interpol is . . . like USNCB that of the United States to the United Nations.

Although a organization, member of the Reconsideration, suggested supra 42. The Government has the Inter- Decision of note F.Supp. citing pol 5 U.S.C. constitution and at least one United Na- 552(a)(6)(B) (1976). § Assembly cases where records resolution be rele- tions General per- located field facilities the question, vant to this the affidavit of produce sought-after mitted more time to personnel asking USNCB for the information. 552(a)(6)(B) (1976). materials. U.S.C. pause point We also out that we intend no way comment one or the other on the sufficien- Supra note 4. cy Vaughn provided of the affidavits or index to the District Court the Government. The Id at 617 F.2d at 760. court indicated that the Government had been Steinberg Interpol, supra Id But cf. note severely responsibilities deficient its both respect to the affidavits and the indices submitted. decision in this case is limited Our Appellants 46. Brief for at 15. We decline to strictly legal questions presented to the three accept argument the Church’s that the Govern- Contrary for review. to the Church’s conten- Interpol ment’s retrieval of some documents tions, extending we find no basis for our review precludes refusing attempt USNCB from to an examination of affidavits and indices obtain the rest. before the District Court. Whether or not sum- mary Exemption 7(D) judgment on the issue 47. As counsel for the Government acknowl- ultimately may granted in favor of either edged argument, question at oral one the Dis- party is for the District Court to decide trict Court must determine on remand first instance. Interpol actually whether or did furnish the requested information to USNCB confidence. C., Dobrovir, Washington, D.

William A. Gebhardt, D. Wash- Joseph with whom C., brief, appel- ington, D. was on lant. Atty., Dept, of Jus- Mutterperl,

Mark N. C., tice, with whom Earl J. Washington, D. C., Silbert, Atty., Washington, D. U. S. filed, Leonard the time the brief was Justice, Schaitman, Atty., Dept, of Wash- brief, C., appel- ington, were on the D. lee. ROBINSON, Judge, and

Before Chief MIKVA, Judges. MacKINNON and Circuit filed Chief Opinion for the Court ROBINSON, III. Judge W. SPOTTSWOOD Judge Dissenting Opinion filed Circuit MacKINNON. ROBINSON, III,

SPOTTSWOOD W. Judge: Chief controversy in this case centers on Joseph P. appellant, the efforts of the Lon- drigan, to uncover the identities of who information about him to the furnished Investiga- appellee, the Federal Bureau of tion, during the course of an employ- qualifications for federal question ment. Presented for decision is a very Act going to the heart portions Deputy What deleted Attorney 1974:1 must demon pur strate in order to withhold information unsuccessful, appeal proved General. His (k)(5) grounds Exemption suant July, brought he suit in the it was obtained under an of District Court. Implicitly confidentiality?2 concluding Shortly answering Londrigan’s after com- (k)(5) of Exemption invocation plaint, the FBI submitted motion for sum- agency requires only showing, a minimal mary judgment only by supported an affi- granted summary judg the District Court prepared by Special Agent davit J. Charles. ment in favor of the FBI. On the basis of Wroblewski, supervisor then a of the FBI’s (k)(5), our interpretation Exemption Freedom Information-Privacy find that the record before the court was Branch.5 Wroblewski averred that insufficient a summary disposi upon statements therein were “based tion. We further find that the court ruled [his] 3 incorrectly knowledge, upon on two Rule 56 motions made information available to Londrigan in an attempt fortify his capacity, upon official [him] [his] opposition judg to an award decisions reached in accordance there- 6 Accordingly, ment. we reverse the District with.” The crux of Wroblewski’s affidavit rulings Court’s and remand the case for was view that his further proceedings. [p]ersons assume, quite interviewed often Background I. logically,' that fur- sought specifically data by Londri- nish for the official use gan persons are the provided names of who in the fulfillment of responsibilities, its the FBI with information about him in that, the identities and the fact of 1961, long Privacy before the advent of the cooperation their with the FBI will not be Act, when he was investigation under for publicly exposed. implied Without position Corps as a Peace volunteer. The confidentiality, exposure the fear of such FBI’s private file includes statements from cooperation would inhibit other- individuals as well employees as from wise conscientious citizens.7 schools, businesses, and gov- state and local participate Wroblewski did not in the Lon- agencies. ernmental himself, drigan investigation apparent- Londrigan initiated his endeavor ob- ly made no effort to contact of the October, 1975, tain his FBI file when he agents who in- had conducted recorded congressman wrote to his to ask for assist- terviews.8 What he tells us is that acquiring ance in it. His letter was for- conducting investiga- background [i]n FBI, March, 1976, warded to the and in he regarding application [Londrigan’s] copies file, received of the materials position Volunteer, Corps of Peace albeit with substantial deletions made as- following groupings of individuals sertedly authority Exemption under were confiden- (k)(5) considered to Privacy Act.4 Dissatisfied documents, personnel, personal with the redacted tial Londrigan sources: school appealed the agency’s references, decision to neighborhood withhold and social ac- (1976). Wroblewski, 5 (App.) 1. Appendix § U.S.C. 552a at 10 [herein- after cited as Wroblewski Affidavit]. 552a(k)(5), quoted in 2. text infra at § note Id. 29. 6. 3. Fed.R.Civ.P. 56. 5, App. Id. at 552a(k)(5) (1976), quoted 4. 5 U.S.C. in text Londrigan Investigation, v. Federal Bureau of infra at note 29. supra note Defendant’s Answers to Plain- Interrogatories (Interrogatory 9) tiff’s No. Londrigan Investigation, v. Federal Bureau of App. 85 cited as Answers to Inter- [hereinafter (D.D.C.), Civ.No. 78-1360 Defendant’s Motion rogatories]. Summary Judgment, Affidavit of Charles J. associates, conducted, quaintances, business and for- 100% of employees.9 mer interviewed assumed that their fact cooperation identities and the of their admits, short, as the FBI Wroblewski publicly with the FBI would not be ex- proposition affidavit reduces to the “any [background] investigation posed.” conducted As the bases for these conclu- prior to the effective date designated his review of sions Wroblewski regarded having con- must be been pertaining investigation, documents ducted under an of confi- prior experience, policy,18 and FBI at- dentiality.” by noting tempted to buttress assertions response summary-judg- to the FBI’s time these interviews were “[a]t motion, ment Londrigan moved to strike conducted in no such law as the Priva- pursuant the Wroblewski affidavit to Rule cy Act was envisioned. There was no ex- 56(e) of the Federal Rules of Civil Proce- pectation anyone who grounds dure it was not based furnished information to the FBI would be upon personal knowledge. He also filed a Finally, divulged.” and somewhat incon- 56(f)12 pursuant requesting motion to Rule sistently given his claims that interviewees deposi- continuance in order to take the automatically assumed that their comments agents actually pre- tions of the who had secret, kept would be Wroblewski noted pared the contested documents.13 The Dis- Londrigan “ex- one of sources had trict Court denied the to motion strike and pressly requested confidentiality” since a refused to Londrigan depose allow to notation to this effect was contained in the agents participated who had in the investi- file.20 gation.14 permit The court Londrigan did Despite these revelations of tenuous to interrogatories submit written predicates, nature of affidavit’s the Dis- FBI.15 granted trict Court the Government’s mo- Londrigan’s interrogatories attempted to summary judgment.21 doing, tion for In so unearth the basis of the statements con- the court stated that its decision was based tained in the Wroblewski affidavit. In re- it, empha- on the entire record before but sponding FBI, on behalf of the Wroblewski sized that particular made several statements of rele- examination of documents at is- vance to the matter before us. For exam- sue, particularly noting types of indi- ple, addressing “what percentage per- interviewed, per- sons viduals such as school interviewed . . . assume their [that sonnel, references, identities will kept confidential],”16 personal neighborhood 1961, replied Wroblewski when acquaintances, and social and business as- “[i]n Affidavit, 5, 5, supra 9. Wroblewski note at Londrigan Investiga- 15. v. Federal Bureau of App. tion, (D.D.C.) (order denying 14. No. 78-1360 Mo- 14, Strike) (Nov. 1978),App. tion to 78. Appellee 10. Brief for at 6. 8, supra Interrogatories, note to 16. Answers 20) 10, (Interrogatory App. No. at 89. Fed.R.Civ,P.56(e). 11. (Answer 20(a)) Interrogatory 17. Id. to No. at 56(D. 12. Id. 11, App. 90. Londrigan Investiga- 13. v. Federal Bureau of (Answer 20(c)). Interrogatory 18. Id. No. tion, supra 5, Strike, note Plaintiffs Motion to App. 23) 74. (Answer Interrogatory No. at 19. Id. App. 91. Apparently agents 14. several of the who con- (Answers Interrogatories 20. Id. Nos. 3 & employ- ducted the 1961 were still 5, 11, 21) App. at Londrigan ees of the FBI at the time his suit in District Court. See Answers to instituted Londrigan Investiga- v. Federal Bureau of Interrogatories, supra (Answer note to Inter- tion, 30, 1979), supra (order) (Jan. App. note rogatory 9) App. No.

H69 sociates, produced ques- the substance of the citizens years recent from ac- inquiries tions asked such as about Plain- investigators, tions over-zealous and the character, reputation, tiff’s loyalty, asso- curiosity government of some administra- ciates, abilities, noting and further tors, wrongful use, disclosure and interviews were conducted cases, personal some files held Federal agents of the Federal Bureau of Investi- agencies.” gation sufficient cir- revealfed] providing divulgence of the con- cumstances indicating existence of of agency tents records to individuals to ,22 implied promises confidentiality. . . they pertain, whom the structure Londrigan appeals decision, well as Privacy Act is similar that of the Free- the District disposition Court’s Rule dom of Information Act.27 One Pri- 56 motions. vacy premises Act’s fundamental that all compiled records on an individual must Exemption II. (k)(5) Privacy request be revealed to that individual unless being Act came into in con- specifically fall within one or more junction legislation amending exemptions.28 enumerated litigation This (FOIA).23 Freedom of Information Act It implicates Exemption (k)(5), protects genesis growing had its ain awareness that from disclosure. governmental agencies accumulating were investigatory compiled material solely ever-expanding stockpile of information purpose suitability, of determining private about readily individuals that was eligibility, qualifications for Federal susceptible to perpetu- both misuse and the service, employment, military civilian ation of inaccuracies that the citizen would contracts, Federal or access to of, classified never know opportuni- let alone have an information, but ty to the extent response rebut or correct. fear the disclosure of such material re- gathering “the secret people veal the the creation source who of secret informa- fur- systems tion nished information to by data banks on Americans the Government employees departments agencies of the under an express promise that the identi- 24 of the ty executive branch” of the could soon make source would be in held confi- 25 dence, Orwell’s or, vision of 1984 reality, Congress prior a to the effective date designed Privacy prevent section, Act “to this implied promise under an illegal, unwise, kind of investiga- identity overbroad of the be source would tion and record of law-abiding surveillance held confidence.29 (citation omitted). 1 22. Id. at 552a(j) 552a(k). 552a(j), (k). Id. §§ Anoth- Privacy er essential function of the Act tois (1976). 23. 5 U.S.C. § 552 prevent unauthorized a disclosure of record person entity other than the individual Sess., S.Rep.No.1183, Cong., 24. 93rd 2d 2 upon whom it is maintained. Id. See 552a § (1974) Cong. U.S.Code & Admin.News (b). parts These two of the Act work hand- pp. cited as Senate [hereinafter Re- promote prin- in-hand “to observance of valued port]. ciples privacy.” Report, fairness and Senate supra Cong. note at U.S.Code & Admin. Orwell, Eighty-Four (1949). 25. See G. Nineteen 1974, p. Davis, generally, News 6917. See 1 K. (2d Law Administrative Treatise 5.43 ed. § Report, supra 26. Senate note at U.S.Code 1978). Cong. 1974, p. & Admin.News 552a(k)(5) (1976). (1976). 5 U.S.C. The Act § fur- § U.S.C. provides exemptions, including ther 552a(d) Privacy (k)(5), operative only Subsection upon promulga- Act af- become general by fords appropriate access individual to a feder- rules the head agency pertaining al 552a(g). agency seeking record him. § U.S.C. invoke them. 552a(d) (1976). provision compliance requirement § This mandates is dis- The FBI’s with this closure, upon individual, request by questioned applicable of all case. The information regulation contained record forth in 28 is set C.F.R. specifically (1980). exempted 16.42(b)(3) save that subsections date of the Privacy effective statutory language most critical to must be deemed have been undertaken “implied prom- refers to an the case at bar promises under ise that the source would underly- congressional to defeat the intent significance Its is a held confidence.” ing design response of the statute. question impression of first for a court of agencies such to concern appeals, court seems to one district hampered in their law enforce- directly. have addressed it In Nemetz Department Treasury,30 a case similar in Privacy ment efforts Act’s disclosure us,31 many respects to the one now before mandate, Congress specifically exempted summary judg- the court refused to award information held these entities for law agency, stating: ment for the purposes.33 weighing enforcement After competing interests in information We find that general defendant’s employees, gathered prospective federal promises averments of of confidentiality however, Congress entirely struck an differ- insufficient an award area, Congress plainly In this ent balance. judgment on their behalf. To fulfill the stake in Privacy determined Government’s purpose Act’s of grant ing access important to an nondisclosure was far less than government individual’s records, . . . exemptions opera- is in the context of law enforcement must be nar rowly tions,34 construed and requirements and it is evident that the citizen’s strictly met. In cases exemption affecting where personal interest in access to data sought under 552a(k)(5), Section this stan ability very high living to earn a is of a requires dard finding of confi magnitude. Consequently, Congress autho- dentiality as to each source sought to be withholding of sources of rized identities of withheld. allegations General concerning information, gathered such when after the “policy” are insufficient. Evidence must Act, only upon effective date of the be presented based personal knowledge showing express promise of an of confi- that an express or implied promise of con dentiality.35 sup- Identities of who fidentiality given as to each source plied prospective information on federal sought to be exempted prov under this employees prior time were to that to be ision.32 greater protection, accorded somewhat but

certainly exemption not an absolute We think approach that this contrary, is emi disclosure. their identities On nently correct. To allow an agency to with only upon were to be shielded demonstra- hold simply by asserting that tion of confidentiali- all background investigations pri- conducted ty.36 F.Supp. (N.D.Ill.1978). exemption, Exemption 30. 446 102 FOIA. Since that like Act, Privacy (j)(2) 552a(j)(2), the of Id. § Nemetz, plaintiff sought

31. the access to applies only law enforce- to records held for background information obtained the Secret inapposite. purposes, We ment these cases are Service in the course of an con- Exemption 7 of are aware of a reference to pursuant application employ- ducted to his (k)(5), during Exemption FOIA the debate on sought any ment. He also to amend inaccura- (1974) (remarks Cong.Rec. of see 120 36655 incomplete portions cies or of the documents Representative Erlenborn), but it does not requested. he had Id. at 104. Although Representa- alter this conclusion. (footnote omitted). Exemption tive Erlenborn cited 7 as an exam- 32. Id. at 105 ple recognized of the need for in 552a(j)(2) (1976). 33. See 5 U.S.C. § situations, colloquy Rep- a later some between Representatives resentative Erlenborn and Exemption (k)(5) be of the must explicitly and Fascell defines the Goldwater carefully distinguished Exemption 7 from of infra, (k)(5). Exemption at limits of See text FOIA, 552(b)(7) (1976), per- 5 which U.S.C. notes 39-43. “investigatory mits retention of records compiled purposes.” for law enforcement supra 35. See text at note 29. attempted justify The FBI its refusal has sought by Londrigan on release the identities supra at text note See construing Exemption 7 of the basis of cases ments which The Wroblewski affidavit does not merely they reveals that con- Londrigan suffice to that in establish the tain information a prospective about em- all, in any partic terviewees were or indeed character, traits, ployee’s ability other instance, ular impliedly assured confiden that supplied by these data were ac- tiality. nothing unique, reveals Wroblewski associates, quaintances, business and record in terms need or desire for confidentiali custodians, does enough not furnish aof ty, group about their upholding agency’s foundation an refus- comments; rather, he the to do asks courts al to the disclose identities of the sources. Congress already what has do— refused to Nor is the fact that the the FBI collected except pre-1975 investigative all from files dispositive. materials These elements disclosure. To so in put do would this court nearly every common to file maintained judicial role, a legislative rather than a candidates for employment, federal and fac- transposition accept. of functions we cannot token, By the same docu- Congress examination of tors of which well was aware.37 infirmity people would, 37. These considerations bare another that can be said is that some but ruling. not, presuppose the District Court’s The case was others would that the inter- by entry summary judgment, identity terminated procedure of a viewee’s secrecy. would remain enshrouded only supplier when A authorized conclusion that a made genuine any assumption any “there is no given issue as to material can follow in in- moving party only by fact and . . . entitled to a stance force of inference from its own judgment as a matter of law.” Fed.R.Civ.P. set of circumstances. 56(c). posed Recounting The principles governing crucial issue FBI’s well-settled Exemption whether, (k)(5) summary judgment procedure, invocation of was resort to the supplier, very recently the instance of each the FBI obtained admonished through try disputed information later withheld promise court’s function [t]he is not to confidentiality. question fact, The obvi- issues of but to ascertain whether ously present, was one of fact: whether the circum- such an issue is doubt surrounding acquisition against stances of the informa- score is to be resolved the mov- implication promise. tion warranted such a ant. Since it is he who bears onus establishing summary words, his problem entitlement Court’s District judgment, opponent enjoys confronting “whether, regard the benefit of all investigatory favorable inferences concerning [Londrigan], evidence material proffered.... implied promises Union, Graphic v. Abraham Arts Int’l 212 U.S. sources who furnished such information to the 412, App.D.C. 811, (1981) may Government be 660 F.2d held in confidence ” (footnotes omitted). It found follows “[s]um Court to have been made.. . . mary judgment granted FBI, Londrigan supra (filed should not be where v. note Order contradictory 1979) then, App. Jan. inferences be drawn from' court upon evidentiary facts,” undisputed “an United examination of the documents at States is- Perry, “particularly (9th 1970); noting types sue” and 431 F.2d indi- Cir. interviewed,” judgment viduals “the substance between two ra “[e]valuative questions tionally possible asked” and the fact “that inter- conclusions from facts cannot engaged agents judgment.” views were in on conducted Chen [FBI] 1961,” College, concluded that suffi- ette v. Trustees of Iowa 431 F.2d “reveal[ed] (8th indicating 1970). “[o]nly cient circumstances existence of Cir. It is where the facts ” implied promises Id., confidentiality. supportive summary judgment . . . of a can be held App. (citation omitted). doing, unambiguously In so to have so established the actu circumscribing court exceeded the limits alities aof situation as to leave no basis of summary judgment. dispute reality use of substance for as to their or as sure, any required To be of number circumstances the conclusion from is them a summa fact, ry judgment combine to convince a trier of as a to Ac entitled be entered.” logical inference, Sears, particular cord, GSA, of matter in- Roebuck Co. v. 180 U.S. particular 202, procured 206, 1378, 1382, App.D.C. formation was in a situa- 553 F.2d cert. by particular denied, inquirer particular 74, a from a 434 U.S. 98 54 84 S.Ct. L.Ed.2d supplier only consequence (1977); Lighting Supply of an assumed Fixture & Elec. Co. though Co., (5th unarticulated assurance of confidential- Continental Ins. 420 F.2d 1213 Here, ity. however, 1969); the District Court did not Cir. S. J. Groves & Sons Co. v. Ohio acted, Comm’n, Turnpike (6th have the role of factfinder when it nor 315 F.2d 237-238 denied, Cir.), were the circumstances enumerated the cert. 375 U.S. 84 11 S.Ct. compelling (1963). court so as to render such an infer- L.Ed.2d 57 Here the re circumstances vagaries upon by ence inevitable all on occasions. The lied the District did not lead Court are, being inexorably implication promises human nature what the most to of confi in order by Representative Erlenborn duced is holding a that nondisclosure To rest persons who the identities of protect these to identification of justified solely on confidentiality expectation an responsibility the without ingredients is to abdicate supplied not have information the would the to ensure vested in courts Repre- According it. to agency collecting Congress had obeyed. Act If Privacy Erlenborn, showing than a sentative require no more intended accepted by the District as minimal as that lawfully ex- past there has been [i]n case, simply have it could Court in this of confiden- implied promise an pressed files con- exemption for enacted blanket who have made tiality given to those job-appli- a federal taining information on investigators. statements to Congress did qualifications. cant’s Since bill, if it is not of this The functions exception an to disclosure not insert such amendment, amended the Erlenborn Act, surely expect- have must so up all of those old files open will be to implied an stronger demonstration of ed given that were those statements portrayed confidentiality than is promise of made available will now be confidence or the affidavit by either Wroblewski the individual.39 on nature District observations Court’s addition proposed of this The introduction Londrigan’s FBI lodged in of the documents dis- heated sparked a somewhat to the bill file. the the- Objections were raised on cussion. disclosure ory the Priva it would insulate legislative history of contained much of the information the con far too cy provides clear Repre- prior.40 compiled theretofore conclusory affidavit in files that neither a clusion notion even the questioned Fascell of documents sentative general nor a examination confidentiality; he finding of an suffices to validate related, I had Government neither “never have confidentiality. While me, infor- ‘[s]ir, the report agent say committee the House nor Senate classified’ or point, you give me is particularly helpful on this mation ‘[t]he ”41 kept will be confidential.’ Exemption information debates are most informative. Erlenborn response, Representative H. (k)(5) originated as an amendment exemption pains point out that later became the House bill narrow: very to be intro- was intended The amendment was Privacy Act.38 aspect Exemption wholesale, any particu dentiality of an the treatment or on ed —either (k)(5) case. The debates when it en before us in this lar the court erred occasion —and question finding gaged in the context of the related in fact Houses considered in both judgment. already employed an individual whether Government, allegedly promotion but denied H.R. 16373 on November The House debated derogatory informa- the basis of confidential 20, 1974, adopted the amend- at which time it tion, access to that could be denied (1974). Cong.Rec. The fol- ment. legal proceeding the context of a lowing day as a whole. it enacted the measure ground the source would 11, the House also Id. at 36976. December On placed in the rec- Both chambers be breached. bill, passed with an version of the the Senate report concluded that a staff which ord substituting language its own amendment way precluded ac- in no Erlenborn amendment entirety. Id. at 39204. in its that of the Senate Id. 40406 jointly agreed- circumstances. under' those It was this substitute to cess version), (House produce version upon (Senate were made to amendments House, (remarks language). legislation. of Sena- in' final Id. at 40400 some variations Ervin), (remarks Representatives Alexan- exchange of Senator tor 40410-40411 between that, in- if the Hruska). made clear Erlenborn der and case, the Gov- were essential formation Representative (remarks Id. at source or to disclose have ernment would Erlenborn). Id. at 40884-40885. lose. See, e.g., (remarks Representatives id. Representative (remarks Fas- Id. at Goldwater). Abzug, Fascell and cell); note 44 infra. see emphasis placed The on maximal disclosure highlight- both House and the Senate is

H73 gentleman says be made to a The from Florida that enable determination exact- any express assurances, he has never promises, ly had any, what kinds of if were case, implied. In that his name will be given providers of the information. An made available if he is not one who has implied promise of confidentiality is estab- given statement, only such a because logical lished as a deduction from the thing that protected would be are those shown, circumstances and from one set to confidential sources.42 expectably another the result indicated Representative indicated, case, example, Erlenborn also In the differ. instant question Representative answer to a from Wroblewski observed that one document Goldwater, that access courts to the express notes an request data provide necessary “check and balance” kept confidential, clearly therein be respect on discretion with identity of that source should not be dis- fact whether in informa- “determin[ation] closed.45 The fact the request was included, tion is or whether fact third recorded, however, against agent’s cuts parties should be made available.”43 people naturally assertion that and invari- ably they assumed that fur- information import excerpt The from secrecy. nished the FBI would be held in legislative history plain, and it is Similarly, supplier’s while the relationship precisely in line with our own conclusions subject investigation may have those of the Nemetz court.44 Confiden significance outcome, tiality is the mere simply not be inferred fact public circumstance that the information he is a was so school official would governmental licited given require to a not in itself seem to withholding of agency; name, an adequate implication basis for position much less his at the time a promise confidentiality must be the information was obtained. shown. Something necessary more is than It follows that this case must be general averment that all information remanded the District Court for further

compiled by agency prior to 1975 was investigation of the facts acquired and circumstances pursuant implied pledges acquisition surrounding the of the informa that sort. Verification of the fact of such tion contained in the FBI’s file on Londri promise may vary depending extent gan. process, type information, order to facilitate this the circumstances steps under which it there several the District gathered, and other factors, First, appropriately may but beyond some effort Court take. mere obser vations that the documents contain careful review of each document com should ments on a prospective employee’s undertaken to charac determine the nature of the ter personal custodian, and other assets or shortcom example, per source—for record ings, and that supplied acquaintance were ac sonal or the like—and wheth quaintances associates, and business must any er statement contained in the document (remarks Representative Erlenborn). any confidentiality. Id. detected assurance of Ac- cordingly, Representative replied, Erlenborn (colloquy Representative Id. between Gold- case, “in that will his name be made available Representative Erlenborn). water and only thing pro- . . . because the that would be tected are those confidential sources.” that, supra 44. See text at note 32. We realize read, literally Representative Fascell’s state- ment was that he had never received an ex- 45. That in this instance is undoubt- conclusion press promise confidentiality any imply proof occa- ed. We al- do need supplied sion when he the information. ways positive. Indeed, be so this notation on however, point, Representative is that Erlen- Londrigan’s ap- one of file the documents interpreted differently: gentleman born “The pears express agent’s record says from Florida that he has never had pro- was made to promises, express implied." Cong.Rec. vider of therein. See contained (1974) supplied). (emphasis Representa- supra text at note obviously Represent- tive Erlenborn understood ative Fascell to mean that in no instance had he competent tively that the affiant is to testi- confidentiality.46 expectation

indicates Second, realistically therein.”50 Al- fy while the FBI cannot to the matters stated respect the interviewees with expected though to contact the rule’s directive themselves, of the available contents on admissibility at least some of an affidavit’s agents might liberally be consulted to con- investigating summary judgment has been or assur- any promises strued,51 requirement personal determine whether its knowl- expressly given impliedly edge unequivocal, ances were and can- by the affiant Third, FBI Londrigan’s arose in instance.47 An affidavit based not be circumvented.52 policies prevalent may in 1961 be con- unac- merely information and belief is on sidered, great care should be taken to but ceptable.53 confusion of internal rules avoid Irrefutably, part critical the most specific practices actually pursued with the Wroblewski affidavit does not rise to with interviewed.48 56(e) the level Rule demands.54 Careful indicia may The District Court find other reading of this section of the affidavit re promises presence or absence of great says veals that a deal of what it could confidentiality, the court feel and should affi possibly not have been based on the them, weigh point free but hasten personal knowledge of the documents ant’s out the FBI con- the mere fact investiga question or the details of ducted the or that the com- produced them. Wroblewski was tion that personal does not ments were of a nature competent testify to his own observa that, dictate the result.49 With we now documents, includ upon tions review of the dispositions turn to the District Court’s ing one of the sources whose the fact that motions, Londrigan’s Rule 56 and the need spe the FBI had identity was withheld for their reconsideration on remand. confidentiality; pro cifically requested III. The Rule 56 Motions attempt history Londrigan’s cedural 56(e) A. Rule FBI; acquire by the information held procedures respect to investi 56(e) agency’s principal A command of Rule during own tenure therewith straightforward: oppos gations his “Supporting possesses ing practices and earlier of which he summary-judgment affidavits” on mo knowledge;55 personal ex personal knowledge, personal tions “shall be made on periences agent shall set forth such facts as would be admis as an to the extent evidence, At this sible and shall show affirma- bore relevance to the case. For, words, example, specific request In other some basis must be estab- for confiden- actually tiality interviewee was led to is reflected in one document. See text lished expected supra supra. the information he at note 20 & note 45 We do believe kept accept provided Londrigan’s would be confidential. contention derogatory protect- sources of information are supra. Congress 49. See note 46 ed from identification. did not distin- guish among types drafting of information in 56(e). (k)(5). 50. Fed.R.Civ.P. Exemption Cong.Rec. See 120 (1974) (remarks Erlenborn). Representative Miller, Wright Practice 51. See C. & A. Federal Moreover, derogatory differentiation (1973). complimentary may comments sometimes be impossible; complimented one com- Wicker, & J. Federal Practice See J. Moore stranger, yet ments from a insulted same (1980). 56.22[1] remarks do from close friend. We not be- lieve the distinction is a sensible one. 53. See id. satisfy 47. We doubt that FBI can its burden 15(B), 54. We refer which includes the to Part establishing an of confiden- paragraphs page second and 5 of the third tiality without least affidavits from these affidavit, App. paragraph the first agents. Should the FBI elect not to obtain page App. 15. them, though, greater there is an need for even depositions. their See Part III infra. supra following 55. See text note point, however, competence Wroblewski’s motion.”60 Londrigan Counsel for com- possibly per- terminated. He cannot have plied prerequisites for invocation knowledge any assumptions sonal made 56(f) Rule submitting an to affidavit by persons interviewed other FBI explaining why District Court he was agents, and he be might competent while to unable to offer material in opposition to the testify to difficulties en- summary judgment FBI’s motion.61 The confidentiality promises counter were Court, by 56(f), District the terms of Rule implied, simply not is not that information options refusing then grant had 'to pertinent litigation. to As this we noted judgment, summary ordering a continuance earlier, negative Congress was aware of the permit to to be affidavits secured or dis- aspects releasing agency information in conducted, covery entering to “such files, investigative but opted favor of just.”62 Consonantly, as other order was disclosure, subject only narrowly to defined deny specific the court to Londrigan’s chose Moreover, Privacy limitations.56 request depositions, to take but allowed him permits data collected after the effective interrogatories to submit written only date of statute to be withheld if an FBI. express promise however, Unfortunately, interrogato- made;57 thus, the al- situation Wroblewski fill gaps ries did not in the Wroblewski to no longer ludes exists. affidavit. While the interrogato- written sum, affidavit undertook Wroblewski’s may warranted, ries indeed have been Lon- precisely 56(e) type presentation Rule drigan additionally should have been per- prohibits. The District refusal to Court’s procure depositions mitted to such he grant Londrigan’s motion to strike the insights could in order to obtain the Wroblewski affidavit must be rectified. On agents actually prepared who the docu- remand, the disregard court must the im- dispute. ments in Even if the District pugned part of the affidavit58 in its entire- initially interrogatories Court assumed that ty. sufficient, would be the answers to those interrogatories clearly demonstrated the B. Rule 56(f) testimony agents need for personally in- As two well-known commentators investigation. Therefore, in the volved explained, 56(f)59 have protects “Rule remand, the District Court allow should party opposing judgment mo Londrigan opportunity take those tion who for valid cannot by reasons affida depositions request.63 should he renew his presumably by vit—or any other means au thorized 56(e) present under Rule forth, ‘facts For the reasons have set — justify essential to opposition’ his grant the District summary judg- Court’s supra Londrigan Investiga- 56. See text at 61. notes 33-36. v. Federal Bureau of tion, supra note Affidavit of William Do- A. brovir, App. at 77. supra 57. See text at note 32. supra. 62. See note 59 supra accompanying 58. note See text. Discovery cases, especially important appear “Should it from the affidavits of a this, person requesting such as where a access party opposing the motion that he cannot

(cid:127) agency records under Act or present reasons stated affidavit facts essen- complete FOIA is entitled to as accurate justify opposition, may tial the court explanation of the reasons for nondisclosure of application judgment may refuse the sought-after agency information as the is able permit order continuance to affidavits to be context, provide. discovery In this benefits depositions obtained or taken or dis- court, requester but also the covery to be had make such other order must review decision not to release. just.” 56(f). as is Fed.R.Civ.P. See, e.g., Founding Scientology Church of Security Agency, U.S.App.D.C. National Miller, Wright supra 60. C. A.& note n.75, 314 & 610 F.2d 833 & n.75 (1979). disposition merit As a Londrigan’s and its result of this investigation, Rule reversed, compiled motions and the case consisting a file of twelve docu- proceedings remanded for further ments. The first is August consist- dated opinion. ent with and the September last is dated (App. 13) Most of the gath- ordered. So ered is complimentary Appellant toward the However, family. and his a few sources MacKINNON, Judge (dissenting). Circuit provided opinions information or that were adverse, prove damaging Ap- and could In Appellant, Joseph Londrigan, P. pellant in certain contexts.1 instituted this suit Privacy under the Act of 552a, seeking compel U.S.C. § Privacy II. Request Act Appellee, Investiga- the Federal Bureau of 27, 1975, September Appellant On sent (FBI), tion primarily to disclose the names Congressman letter to his requesting his of given individuals who had information to assistance in obtaining “any information the FBI in a background investigation it the Government has” plaintiff, about had conducted of response him in 1961. In pursuant to the Freedom of Information- to Appellant’s request administrative Privacy Congressman Acts. The forwarded FBI furnished him with requested all the FBI, request this who advised him information deleting only the data that request that the processed would be in line who, identify would sources the FBI con- with the current work requests. load of such tends, furnished implied information under Appellant The FBI informed that it needed promises of confidentiality. aOn record identifying additional data to aid it in locat- which included a comprehensive affidavit ing any Appellant supplied documents. this granted District Court the FBI’s motion information, including signa- a notarized for summary judgment finding that By 16, 1976, ture. letter dated March for- record “reveals sufficient circumstances in- mer FBI Kelley Director Clarence M. re- dicating implied promises the existence of Appellant thirty-six (36) pages leased to of of confidentiality.” (App. 96) I would af- pertaining material from the one FBI file firm ruling. to him. The letter informed him that cer- I. Investigation tain information was withheld as it was exempt pursuant from disclosure to 5 1961; August In Appellant applied to the 552a, particular, U.S.C. infra. § it was Peace Corps to be posi- considered for the apparent from copies the Xerox of the FBI Corps of Peace (App. volunteer. 34- Appellant files that were delivered to 35) As is government policy standard identifying the names or facts of all sources case, such a the FBI ran the usual back- supplied who had information to the FBI ground investigation Appellant of to deter- under an suitability mine his qualification for the were deleted. Corps. Peace The nature of the sources contacted per- FBI included school Privacy basic thrust of the Act of sonnel, personal references, neighborhood any is to allow individuals access to and social acquaintances, employment government records the compiled have associates. The substance of the inquiries However, pertaining to the individual. cer- Appellant’s character, related to reputation, exempt tain material under this scheme. loyalty States, associates, to the United con- action, For purposes pertinent of this duct, intelligence and abilities. exemption 552a(k)(5), is found in 5 U.S.C. source, express promise (App. 65-66) One who received an lacked motivation. Another confidentiality, Appellant County Department stated that “will be source from the Cook dropped Corps psychiatric Appellant difficulty the Peace Public Aid advised that had (App. 73) learning, reasons.” supervision. (App. Other sources advised and needed close Appellant only student, average 60) better, except who could have done he agencies exempt any sys- “to the release of which would allows reveal identity tem of if include records”2 source who furnished infor- mation to Government under an ex- (5) compiled investigatory material press confidentiali- solely determining purpose for the I ty. do not consider that release qualifications suitability, eligibility, or these materials withheld as a matter military employment, Federal ser- civilian my be appropriate. discretion would vice, contracts, Federal or access classi- addition, pertaining to in- information, but extent fied yourself dividuals other than has been that the of such material would disclosure withheld because such materials are out- reveal the who fur- a source side definition of “record” contained nished information to Government in the release of express promise under an that the identi- would, opinion, you my them to violate ty of the source in confi- held 31) or, (App. the statute. dence, prior to the effective date of section, implied promise this under an in Appellant filed this action the District identity that the of the source would be July 24, September Court on 1978. On confidence; held in Special on the basis of the affidavit of added). 552a(k)(5) (emphasis U.S.C. (SA) Wroblewski, § Agent supervi- Charles a sor in the Freedom of Information-Privacy of Since the effective date the above sec- Branch, Management Records Division days tion was 270 after December Headquarters, of FBI the and the filed an- (88 1910) investigation Ap- Stat. and the of interrogatories, swers to the moved for pellant occurred before the FBI was summary judgment. SA Wroblewski is fa- phrase relying provision, on the last of this Appellant’s miliar with file at the e., FBI. that Londrigan the sources the inves- The of content the affidavit and answers to tigation furnished information to the FBI interrogatories VI, are in in under an discussed detail promise identity that their point It would be held in infra. is sufficient at this to state confidence.3 interroga- affidavit and answers Appellant appealed the of decision Di- policy tories described FBI in the cus- Kelley rector identity to withhold the of agency, relationship tomers of the its with those who had been interviewed. March On interviewed, people and the needs and 9, 1977, Thornburgh, Richard Acting L. expectations agency and its sources Deputy Attorney General, United States in 1961. On basis of such facts the Department Justice, Appellant of advised Appellee contended that the sources who Kelley’s Director decision to withhold were interviewed furnished information un- certain information was affirmed. an implied promise confidentiality. der The materials file being in that now supporting The affidavit and the answers withheld only] considered [excisions interrogatories were exempt me to be not contradicted mandatory from respect. pursuant any release On the basis the uncontro- 552a(k)(5). U.S.C. § provision it, This pertains to record Court investigatory verted before the District compiled FBI, solely purpose granted summary judgment records for determining suitability, eligibility holding upon an examination qualifications issue, employment, Federal documents at people kinds of in- exemptions may “system exposure cooperation 2. That she feared based a their records,” exemptions may FBI, they indicates de- expressly would have been as- pend general policies practices. their all sured that furnished would remain confidential. express prom- In the one document an where by placing This would have been recorded provided source, ise was to the the words “Pro- “protect identity”, by request” “protect words Identity” tect follow the deleted name language, or similar after the individual’s name Special Agent explained source. Wroblewski ” 90) (App. . . . . answering interrogatory. “If individ- expressed ual interviewed a belief that he or FBI, anticipated, expected, each source terviewed the substance of the or relied asked, questions upon regarding and the fact that the inter- of their plain wording views were conducted the FBI in names and answers. The Congress all the circumstances indicated that the in- the statute indicates that never promise” “implied formation had been obtained under an im- intended that should be plied promise confidentiality. 96) (App. so construed. As will be established more V, infra, specifically in the statute antici- III. by Appellant Issues Raised pates unilateral from the Appellant major concentrates on four is- impliedly that could be out held First, appeal. argues sues in his he that the person sources interviewed. The inter- 552a(k)(5) exemption disclosure is not solely upon viewed need not act in reliance exemption; blanket the evidence to promise. long as it can As be estab- summary judgment motion for must be lished that such information was obtained particular directed to circumstances of implied promise the FBI in under an each issue. and source general, specific details of what each Second, he contests the District re- Court’s agent per- individual or interviewed source upon liance the affidavit and answers to developed ceived is irrelevant. The record interrogatories the inter- establish proof. the FBI met burden viewed sources furnished information under Requirements IV. Procedural express of confiden- tiality. proce- He responsibility characterizes of the trial court “general dures as policy,” insufficient statutorily Act suits was estab- 56(e) a summary motion under Rule 552a(g)(3)(A) lished in 5 U.S.C. § of the Federal Rules of provides: Civil Procedure.

essence, Appellant contends Wrob- SA any brought provisions suit under the incompetent lewski was to attest section, (g)(1)(B) of subsection of this the facts set forth in his affidavit and answers may enjoin agency court the from with- interrogatories. holding produc- and records order complainant any agency tion to the Appellant’s points attempt next two improperly him. records withheld from Third, coverage 552a(k)(5). limit the of § In such a case the court shall determine Appellant withholding contests the of the novo, may the matter de and examine names of the sources who furnished any agency contents of records in camera information, laudatory since would not any to determine whether the records or Appellant fear embarrassment toward be- portion thereof be withheld under responses. cause of their Finally, Appellant any exemptions of the set forth in subsec- argues compel that the Court should disclo- section, (k) of this and the burden is sure of supplying the names of sources ma- agency on the to sustain its action. capacities, terial in their official i.e. credit personnel, bureau personnel, school union required, a de novo determination is Since officials, state and local law enforcement rulings. agency court not bound employees. In a Information Act case Freedom of plaintiffs sought

The where the Appellant’s fatal flaw in all of also disclosure rea- soning Depart plain is that he of withheld information from the misconstrues the Force, meaning of Appel- the statute. Much of ment of the Air this Court discussed argument appellate lant’s attempt stems from an role of review. Mead Data Central, Force, exemption requiring construe the a con- Dept. Inc. v. of Air 566 F.2d promise, implied tractual express, (D.C.Cir.1977). either or has a simi Since FOIA parties. 552(b)(7)(D), between example, Appel- exemption, two For lar 5 U.S.C. § reading provision, lant’s of the statute mean a similar de novo review 5 U.S.C. 552(a)(4)(B), Court would have to what Data discussion is determine Mead agent expressly each FBI impliedly instructive as to this Court’s role this source, promised to each and in what turn case.

H79 The very specifically In a the district court is statute FOIA action refers to two quality not limited review of the promises: express kinds and implied. agency decision-making. It decides express promise An spoken would include a exemption novo, claim of de promise by or written source opinions weight agency’s carry no more identity that his would remain confidential. than those of litigant other key words in the statute for case this contest We adversarial before court. agency may are that an the “iden- withhold do not excuse the Air Force’s failure to tity of a source who furnished information provide Mead Data with sufficient detail . . . under an that the iden- about the nature of the withheld docu- tity of the source would be held in confi- exemption ments and its claims at the 552a(k)(5) (emphasis dence.” level, U.S.C. § purposes administrative but for added). language inadequacies case those are irrele- This includes a unilateral reviewing vant. We agency’s are not promise emanating agency. from the It even ap- decision or the district court’s go require not far an implied does so as to proval of an decision. We are express contract between the FBI and reviewing only the district court’s inde- ignore the source. To so hold would pendent de novo decision that intent of the which in obvious statute refer- withheld Air Force is ring express promises to both protected indeed from disclosure ex- clearly imposing indicates that in the stan- emption five. If we are to reverse the promise” “implied Congress dard of an did judge, trial Mead Data must show that require intend to to be incorrectly he either decided that the re- “express.” Congress Had so intended it quested exempt13 information was “express” promises would have referred to deprived opportunity that it was in both instances. Also no conditional effectively present its case to court exists; wording the source act need not agency’s inadequate because of the de- upon the condition that his remain scription of the information withheld and confidential, or only because of this confi- exemptions claimed. dentiality. promise, implied To establish an 13In order to show that the district court’s the source need not even have or cared matter, decision was incorrect as a substantive plain meaning known that it existed. This Mead must establish that it was either based predicate on an law error of or a factual which immediately of the precludes any statute clearly is erroneous. necessity determining subjective of the Central, Mead supra Data at 251. thoughts Londrigan of the sources in the Since no error of law is claimed in this investigation. All the need Court deter- case, the Court is faced with the task mine is the direct and circumstantial evi- of determining finding whether the factual investigations, dence under which FBI such erroneous, of the clearly District Court was as of Londrigan, were conducted in alleged whether inadequacy the of the supporting affidavit and answers to inter- Numerous courts have defined term rogatories deprived Appellant of oppor- “implied” “implied promise.” In Foute tunity to effectively present his case to the Bacon, (2 156, Cushm.) v. 24 164 District I Miss. Court. find FBI should prevail points. (1852), on both the Court held that Legal

V. Definitions “Implied recognizes promises, the law two kinds of

Promise” express implied; is ex- the first press stipulation it, making the party In order to better understand whether an a particular thing, do not to do implied promise of confidentiality existed case, second presumes, it is the law from some ben- essential to consider the exact wording statute, party against efit other received whom how courts have “implied defined promise.” it is raised ....

1180 (1954). Implied key “presumes” word here is contracts inferred from —the promise presumption actions, as a from the parties’ results conduct and Kirk v. reasoning facts. This of the Foute court States, 690, (10th United 451 F.2d 695 Cir. White, Inc., applied was in David v. E. W. 1971); Contracting Corp. Western v. Sooner 803, 667, (1943). 179 Misc. 39 670 N.Y.S.2d Co., 163, (W.D.Okl. F.Supp. Const. 256 167 wagons A manufacturer lunch subcon- 1966), justice. or dictated reason and company tracted to have another install the Regents Arizona Bd. v. Arizona York motors. The negligently per- subcontractor Co., Refrigeration 115 Ariz. 565 P.2d Subsequently, pur- formed this task. (1977). wagons chasers of the lunch ordered the presume I am promise, aware repair subcontractor to the motors. Since unequivocal. the evidence must be clear and legal no duty under to make the re- Supreme In 1828 the Court addressed this pairs, the court found that the situation Morrison, (1 Pet.) issue in Bell v. 26 U.S. created an pur- from the (1828). Kentucky 7 L.Ed. 174 A stat- chasers pay value reasonable permitted ute of limitations the revival of repairs. Essentially, purchasers re- prescribed claim on a debt outside the time subcontractor, ceived a benefit from the period, unquali- if the debtor had made an presumption payment which raised a acknowledgment fied debt still ow- this benefit. This should not be confused ing. acknowledg- Such an unconditional contract, with a since there is no contract original ment would thus revive the cause except by legal fiction. This fiction was action, imply and the court would then recognized by Fitzpatrick the court promise pay from the debtor to the debt. Dooley, Mo.App. 86 S.W. Mr. Story explained Justice for the Court (1905), which also held that an promise disputable is a legal presumption express promise, there be no but a [i]f resulting from equity considerations of promise by implication to be raised custom. law, acknowledgment from the par- of a Many other interpreted courts have ty, acknowledgment ought such to con- “implied” term as used phrases in such unqualified tain an and direct admission “implied consent” or “implied contract.” debt, previous, subsisting of a which the Their method of determining whether a liable, party willing, pay. If particular set of implication facts raises an circumstances, accompanying there be instance, instructive to this case. For repel presumption aof Farm Bureau Mut. Dry Ins. Co. Mo. v. pay; expressions or intention to if the den, (Mo.App.1973), S.W.2d indeterminate, equivocal, vague and lead- Court held that the “implied” word means a conclusion, ing to no certain but at best necessary deduction from the circumstanc probable inferences, to which affect es, general language, or par conduct of the ways; different minds in different we “Implied ties. interpret consent” has been think, they ought go jury to to a ed actions, as consent by signs, manifested promise, evidence of new to revive a facts, inaction pre or silence which raises a Any new cause of action. other course sumption that given. consent has been open against all the mischiefs Arkansas, 512, Hill v. 253 Ark. 487 S.W.2d which the guard statute was intended to 624, (1972); 629 re Seeger’s Estate, In 208 persons, expose innocent and them to the 151, 407, Kan. (1971); 490 P.2d 414 Cowen danger being trapped in careless con- Paddock, 387, v. Sup., (1891). 17 N.Y.S. 388 versations, betrayed by perjuries. Implied presumed consent is also from the parties’ go course of Id. at 361. We need not relationship. conduct and so far in this Allstate Ins. require express Co. v. Farm Mutual case as to statements from State Co., 350, FBI, Automobile Ins. 260 195 since the same concern for “mis- S.C. 711, (1973); However, S.E.2d 713 Acc. Ins. Standard chiefs” does not exist. we do Gore, 277, Co. v. 99 N.H. 109 570 recognize A.2d the need for clear and uncondi-

1181 plied implied promise confidentiality, tional evidence of an for it the fear of such ex- legal implication. to exist posure cooperation would inhibit the otherwise conscientious citizens. Wher- Finally, helpful it is review how other ever the identify information would not interpreted “promise.” courts have the term source, it has been left in the docu- undertaking have defined it as an Some ment. something happen, either shall or that background something conducting In investi- happen, shall not in the future. See, Pitts, e.g., Shop, regarding v. 67 Plumbing gation plaintiff’s application Inc. (1965); position Volunteer, Wash.2d 408 P.2d Corps Peace Kauth, Schenley App. v. following Ohio groupings of individuals (1953); N.E.2d Restatement of implied were considered to confiden- 2(1) (1932). Contracts The District of personnel, personal tial sources: school Appeals “prom- Columbia Court defined references, neighborhood and social ac- express ise” as an declaration associates, quaintances, business and for- a duty perform. Bergman which raises therefore, employees; mer their identities Parker, (D.C.App.1966). 216 A.2d and information which would disclose identities were ex- pursuant withheld eases, Through these discern a stan- emption (k)(5). determining “implied dard for whether an First, promise” exists. we must determine In interviewing individuals, the above whether the FBI received a benefit from attempted to determine their presumption sources could raise a character, feelings plaintiff’s as to the Second, confidentiality. we must review reputation, loyalty, associates and abili- customs, facts, surrounding circum- ties. complete order receive a stances, action, inaction, equity, signs, appraisal plaintiff’s background, frank conduct, relationships, course and the interviewed must believe that sought nature the information to see their remarks would not revealed to whether they implied promise indicated an applicant a later If it be- date. keep from the FBI to confidential the iden- public general came known to the that an tities of who those were interviewed. Fi- interviewee’s candid comments concern- nally, we must determine whether this evi- ing character, associates, an individual’s sufficiently dence is clear to meet the bur- reputation, loyalty, and were at a abilities raising legal implication den of of a prom- being applicant later date revealed to the ise of confidentiality. dry such candid statements would soon

V. Appellee’s Supporting Evidence Its up ability FBI’s to conduct thor- Summary Judgment

Motion for ough investigations applicant background potential would be thwarted. This lack of its motion ability pro- of’ confidence the FBI’s to' judgment trial court relied on an- carry tect its sources of information could interrogatories swers to and the affidavit of investigative over into the other areas SA Wroblewski. The factual statements pursues security, which the FBI such as therein were contained not contradicted intelligence, investigations and criminal Londrigan factually and are sufficient thereby ability also hinder the FBI’s establish an of confidential- carry investigative responsibil- out its ity. ities. The affidavit states: 14-15) (App. (B) assume, Persons interviewed often pertinent interrogatory answers are quite logically, they that the information as follows: furnish is for the use official of the

FBI in ANSWER NO. responsibil- the fulfillment its TO INTERROGATORY ities, that, ... investigation the identities and the fact 8: This was conducted cooperation prior their with the FBI will not to the enactment of the publicly exposed. Without im- and an

1182 in the Wroblew The information set out the FBI conduct- in all interviews

existed 84) (App. interrogatories . should in ed... ski affidavit and ANSWER 20: (a) ^[******] conducted, TO 100% INTERROGATORY NO. when this of the persons inter- the Seventh Circuit respect withhold In Miller v. of itself vindicate the names FBI claims of Webster, very et a sought the FBI decision to exemption under a recently held with l., (7th by appellant. Cir. 1981); herein un related of the statute subsection their identities viewed assumed cooperation discussion, their with the fact of der exposed. publicly would not be ‘comprehensively “FBI affidavits which (b) percent ... zero [of exemptions upon which set forth the [the] that their co- would assume interviewed] por- agency had relied when excised exposed. operation publicly would be file . . forth the tions of its . and set (c) The FBI bases the statement [that use,’ underlying reasons their were suffi- . . . “persons interviewed often assume exemp- to sustain FBI claims of cient the identities and the fact of their in . . . We find this standard is tion. pub- cooperation with the FBI will not be purpose of the Act as keeping with exposed”] a review of the docu- licly on history. . .” expressed legislative in its pertaining investigation, this ments Kelley, F.2d quoting At Scherer prior investigative experience of SA denied, Wroblewski, policy (7th 1978), cert. and the FBI’s 175-76 Cir. that all files were considered confidential. 59 L.Ed.2d U.S. S.Ct. 90) added). (App. (emphasis Miller, Special Agent affiant (1978). In

set ANSWER TO INTERROGATORY NO. relying the FBI in “forth the reasons of 23: At the time were these interviews exemptions, the claimed and articu- on conducted in no such law as the Bu- lately expresse[d] the concern of the Privacy Act was envisioned. There was remain confiden- reau that such material expectation any- no preserve the Bureau’s tial order one who furnished information public coopera- ability to elicit continued Individuals, divulged. would be through interviews.” such therefore, relied confiden- found the affidavit Id. at 627. The court tiality supplying even when and, as “responsible and conscientious” employment capacity. in their Further- such, satisfy the burden of “sufficient more, expected these individuals proof imposed the Bureau they unnecessary would be free from 552(a)(4)(B).” Id. harassment, questions, future and intru- private sion lives members into their Miller, person of the FBI in the SA As public which could result from the in the instant case set forth Wroblewski has cooperation release of the fact of their withholding exemption upon relied often, Quite with the FBI. individuals specified appellant seeks and has the names acting capacities in their official ex- underlying the use of that the reasons FBI, provided infor- desire to assist Miller, is, FBI has emption. As in permitted mation that were not in the proof implicit met burden release, authorization, ac- prior without exemption invoked. “Un- language of the cording regula- to the internal rules and contrary in the less there is evidence to entity tions of the business or educational record, promises of confi- we believe such added). (App. 91) (emphasis institution. implicit in FBI” dentiality inherently allegations supplied None of these factual investigations. background appellee were controverted the Bureau’s the extent of Nor is this He no evidence appellant. introduced question. withholding the names in these facts. for whatsoever discusses case imperative place is apparent reading It the Wroblewski us to ourselves into the interrogatories affidavit and that the FBI mindset of that time—which factual situa- received a tion is set promise benefit from which a of forth in the affidavit and inter- rogatories. confidentiality may presumed. Probably be significant the most facts which lead to this relationship activity of agen- The policy conclusion are in 1961 it was the cy significant. was, is also The FBI and to of the FBI that “all files were considered is, large a extent still an awe-inspiring enti- “[tjhere confidential’ and was no

[to be] ty populace. to the bulk of the spe- Their expectation anyone that the of who agents cial of obtained most their informa- furnished information to the FBI would tion from voluntary sources. Most individ- divulged.” Id. As recounted the affida- uals a approached by special agent ques- vit, promise implicit without the which was at tioning time would probably not operational in the FBI’s policies, sources have differentiated between the seriousness exposure would fear and thus be inhibited investigation a of criminal conducted furnishing candid information. The opposed background FBI as employ- relied on obtaining complete and frank presumed ment search and would have con- appraisal of Londrigan’s background from fidentiality implicit unless disclosure was who obligation sources were under no investigation. the nature of the The im- provide this. The agency fact that the re- ages and expectations part on the of inter- ceived the information was a benefit. special viewees toward agents, i.e. their Without promise across-the-board relationship, despite existed the context of confidentiality, the FBI would be frustrated questions. The attitude of confidential- in its attempts perform these back- ity was therefore inherent and essential to ground and, investigations important- more instill all times. It is thus concluded that ly, security, intelligence, vital and criminal years where FBI for held itself out as investigations.4 Therefore, in this back- disclosing information obtained in in- ground investigation may presume we a vestigations except the investigation where general confidentiality disclosure, purpose was for the and abid- existed because the benefit received during period time, ed that rule the FBI. practice procedure amounted implied promise which extended to those Upon a review of the relationship be- being interviewed that information obtain- tween the sources, FBI and policy background ed in employment investiga- and customs of the agency, par- and both here, tions such as have would used inactions, ties’ actions and is also evident purposes for official and held in confidence. that an promise confidentiality existed. The most relevant facts are the important clarify It is the boundaries year, and the interroga- nature of the holding. of this relationship The same tor, the FBI. The record indicates that at expectations might not exist if the institu- Londrigan the time of the investigation, no gathering the information were a one envisioned the enactment of the Priva- government agency other than the FBI. cy Act of 1974. In those times it would confidentiality The same aura of or serious- have been anticipate absurd to that the FBI probably ness would have been absent had could be forced to release information the source been interviewed the Civil years which for had remained available subject’s poten- Service Commission for the official use the agency in fulfill- employer. tial resulting promise ment of responsibilities. Therefore, its isit confidentiality vary with the However, information, Whether a give im- where informants plied vary investiga- can divulgence might with the nature and where the of the source Naturally tion. person, a criminal create hazard to one’s life or confi- sought dentiality where expressly impliedly prom- for disclosure whether presumption protected. in a rigidly criminal trial a of confiden- ised is tiality of the information would be unusual. having hurt gation, an embarrassment at investigation. I or with the nature of that way, in the fact remains that the him some realization so hold under the

would information sources 522a(k)(5) many not a valuable is exemption in 5 U.S.C. § to would have cause inhibited and would be exemption for all investi- disclosure blanket responses.6 shade their to 1974. gations prior con- the interviews the nature of Finally, Therefore, supplied the information as to questions included cerning Londrigan rela- concerning the FBI’s Wroblewski SA loyalty, character, associates, reputation, his actions, sources, policy and cus- tionship to highly subjects are These and abilities. establish sufficient to toms in 1961 is alone nature reinforces and their personal, confidentiality. implied promise instill a want to the FBI would idea that However, which he facts to the additional to obtain confidentiality in order feeling of i.e., ques- attested, of sources the kinds supplied has not Appellant frank answers. questions and the nature of the tioned and why giving reason sources any persuasive respective obtained in the information capacities, such in their official information interviews, position. The adds force to this employees, credit union personnel, as school per- school special agents FBI interviewed be employees would personnel office or references, sonnel, neighborhood personal releasing information less inhibited associ- acquaintances, business and social logical to quite It is this nature. openly of ates, Undoubtedly, employees. former fear would persons that such assume contact, many of these were still private into their or intrusion harassment contacts, or would have future an- kinds of truthful lives of the because Without an subject investigation. of the swers rendered. express implied promise of confidentiali- and lead they would feel are of record unlikely All of these facts ty, highly FBI in that the might inevitably be to the conclusion frank answers that free render from its sources information Whether this hesi- 1961 obtained negative damaging.5 investigations employment background tation be from a fear of retaliation confidentiality. implied promise subject the investi- under harassment from the therefore, would, plaintiff Appellant attempts advise to convince the statements Court sup- identity it is inconsistent to find that sources individual who fur- of the plying laudatory information acted under an statement. nished the unfavorable However, confidentiality. if 93) recognized (App. It also be should starting point relationship is the established subject’s appraisals truthful of a abilities is the time, FBI at the the character of the objective of the interview and if sources have all, statements received is irrelevant. After overly protect giving themselves laudato- way agent knowing, would have no until ry investiga- interviews the value of the whole replied, the source has whether the answers greatly will tion reduced. laudatory, damaging would be or neutral. answers, order to receive frank the FBI needed derogatory giv- 6. The nature of the confidentiality prior establish the aura of case, supra, footnote 1 en in the instant see speaking. the source’s typical person being where the of the situation SA Wroblewski addressed this issue said, investigated, he knows what was since interrogatories. answer to All information wanting must have some reason for the name considered confidential. Although the in this case of the source. record Also, to release the of individuals conclusion, way there is al- no draws this furnishing would tend favorable information investiga- ways subject of an the fear negate on the claim of may want the name of the confidential part of those who furnished information of per- purpose harassing source for example an unfavorable nature. One derogatory given, information is son. Where personal be where there are three references likely appears the information was and it plaintiff provided furnished and two implied promise of confi- furnished under an information; therefore, provid- favorable one ready protect dentiality, the Court should ed unfavorable information. To release the the source. furnishing identities the two the favorable

H85 Competency Special Agent VII. of Wrob- That this conclusion results as conclusion lewski to Present This Evidence of facts from collocation and circumstanc- way strength. no detracts from its es in Special Agent Wroblewski a know- fact, neatly the circumstances here fit into expert ledgeable insider and on both FBI the situation envisioned the drafters of investigative procedures Privacy the exemption requirements, disclosure in the and from examination of agency constituting public records records Act.7 ment ments Cong.Rec. amendment, sentative give were made order This ed: formation, tions Wroblewski’s maintain distinction between Id. This observation During The information, only portion al will be made available to the individual. The made available keep rest information would be pressed had an confidential file. age in such cases]. the name of the one who has ity source would should have. clearance might mation in agency has obtained the information Other confidential Representative imperil Appellant’s Therefore, In the Only [I]n I think that Cong.Rec. investigators. seeking indicates information given to this will be promise to in the and observations were made. ^[*] the name of the individual who is the [This lead to his identify keep comments the contents of the Erlenborn of the floor discussion to the opportunity 36655 to derogatory and that by Representative past past, confidence, file or explained: “kept ^[*] recognized information. those who have made statements access its channels confidentiality House of information, implied promises affidavit that source or such information the question that contention, if we do reveal protecting him there Holifield extent in confidential.” identity. H» will derogatory course, into regarding derogatory confidence the names from to information supports compromised (1974) Illinois, information, exemption, has kept or jobseeker. be prior Representatives, ^[*] go such information the (of after we have or an kept does not make Otherwise, really never been (emphasis file, information free employment into the author of the Erlenborn. the confidential applicant. California) individual never the amendment custom and us- following source, or giv.en ‘ of confidential- Hs the sources of in confidential its premise of those who or including FBI needs laudatory the individu- lawfully this amend- his contrary both would we sources otherwise, would be the infor- Hi it would security added). all Repre- arose. under. state- in SA situa- open. That stat- any any ex- in- as as to to in Id. withholding has never there was “will be made available.” His answer tigatory Rep. express tive Erlenborn’s with the intricate the district court merely supplied portive dressed FBI sumed his contention stating: pellant’s Reply tiality, only Id. mation under an by Representative Id. strongly now be made open ed statements has never had any plied. be protected available been information. statement, mation. Never have I had mation now in the Finally, explaining The function of The way The amendment Other Appellant quotes While represented Fascell’s relate to sources provisions reply Congressional you merely up asked responded Representative practices promise the gentleman opposed In that case, his name will be information will nothing in the given Members, gave all confidentiality. conflict with the if Representative for such a conclusion. investigations agent the name of the source that had Erlenborn because the that were law. he is be many, following from of those old statement “that foregoing Brief at 2. There is no are those confidential me is classified” or of this bill There is no such kept that applied express promise reply to available say me, Fascell of workings one this from Florida if there any Congress the amendment. many just specifically exempts confidentiality subsection this discussion to debate is thus fully sup- promises, he Rep. confidential.” and the source’s to FBI given amendment, presumably bill, never who observation was made Erlenborn agency, had only explains opinion as I have been, investigation.” times to Fascell’s Fascell’s files so that to interpretation if it had never in under an express “Sir, has Florida who was of the law. He did not intend an any thing specifically the confidence will express particularly (k) case. is not amend- given says in this case. the informa- Government of confiden- Representa- or source of given replied that would individual. give “the infor- unfamiliar exemption will be to be as- statement statement the inves- been an is not in sources. support support support In fact, such a or im- infor- name those made infor- from have Ap- ad- he he as to 8 had reports person- ground employment sufficient must reliable conducted, accept rather than an affidavit sur- knowledge of circumstances al knowledgeable as SA Wroblew- at- from one in 1961 to rounding investigations n ski, impossible and impose an almost affi- case. The test to the affidavit in this unnecessary agencies burden like a mo- competent davit was thus FBI, According to it receives FBI. Fed.R. judgment tion for under of Freedom of Information thousands 56(e).9 Civ.P. many requests annually.10 Act special an FBI Wroblewski had been SA pre- cases, requests are for documents made agent doing investigative field work for cases, ago. even many years In most pared During approximately eight years. that routine agents who these if the conducted involving complicated time he handled cases located,11 could human investigations be Sub- violations various federal statutes. is, highly it is being as fallible as it memory job, to sequent to that he was transferred the details that would recall doubtful Information-Privacy the Freedom ques- Finding the of the interview. Division, Branch, Management Records at more case be even tioned in each Headquarters he was serv- the FBI where essence, sug- Appellant’s the difficult. ing in at the time supervisory capacity a cases, an require, in most gestion would Appellant’s lawsuit His affidavit was filed. futility. exercise in that the asserts upon made herein are based statements the addressed Two district courts have availa- knowledge, upon information my by raised such circumstances insofar issue my capacity, in and to me official ble comparable exemption it relates to a as in accordance upon decisions reached in Informa- from disclosure the Freedom of duties, I Through my official therewith. 552(b)(7)(D).12 In tion Act. 5 U.S.C. Ola- § personally FBI, familiar have become Lopez v. 470 quibeet A. Pacheco request directed plaintiff’s (D.P.R.1979), FOIPA Court re- F.Supp. 1091 an affidavit challenges FBI. viewed similar to Therefore, present- (App. 10) the evidence special the FBI. by agent to a to attested by qualified by presented ed every accept theory Plaintiff’s [T]o policies and expert agency on the and its (b)(7)(D) must be of subsection invocation at the time of the practices by specific agent who inter- made thereafter. and personally viewed each source or who hold, contends, To Appellant that a promises gave them search evidentiary procedure detailed into the individual circum- would convert surrounding contemplated by Congress practical stances routine back- into a each following evidence, in are facts as would admissible F.R.Ev. 803 “The provides: com- though the affiant is shall show rule, affirmatively excluded even by hearsay therein. to matters stated testify petent declarant is available as a witness: (8) Records, Public records re- and reports. Brief at 27 n.ll. Appellee’s statements, or data in ports, compilations, agents three of the thirteen who con- Only agencies, set- form, offices or public investigations ducted the case are still ting (A) of the office or forth the activities 85-86) (App. by FBI. employed agency, (B) or matters observed pursuant agencies 12. This section need not law as to matters duty imposed by provides excluding, there was a how- duty to disclose under FOIA report, (7) investigatory in criminal matters ever, by cases observed law records compiled officers and other law enforcement police the extent enforcement but purposes, (C) actions and personnel, proceed- in civil records would of such production ings against criminal Government (D) disclose of a confidential . . . the findings resulting cases, factual from an in- in the and, source of a record compiled case vestigation made authority pursuant a criminal law authority enforcement granted of infor- law, the sources unless investigation, the course criminal of. mation or other indicate lack circumstances agency conducting national se- a lawful of trustworthiness. intelligence investigation, confidential curity furnished the confiden- only by 56(e) affidavits F.R.Civ.P. requires tial source. judgments shall made added). 552(b)(7)(D) (emphasis U.S.C. knowledge, such shall set forth personal premised it is impossibility require long and would because on the false fact that consuming trials even in the clearest time must be communicated De- We are not convinced that cases. every person It seems interviewed. clear (cid:127) exacting meet such fendants must general to me that the held burden omitted] [Footnote public large out FBI to is Similarly, Depart- satisfy require- more sufficient to at 1102. in Ramo than Justice, Navy Department of require- ment of ment of the statute. There is no (N.D.Cal., 1979), F.Supp. Court implied promise be ment that the communi- testimony held affidavit “[t]he person cated each interviewed. If Con- official, knowledgeable one who gress had so it would have so intended way normally in the such information provided by adding “personally communi- gathered, that attests in detailed manner person cated to each interviewed.” What exemption,” as to the of each basis claimed really holding majority is that there 552(b)(7)(D) exemp- was sufficient for a § promise”— must “express effect an tion. At 130. The Ramo likewise Court i.e., communicated to interviewee. The it was unreasonable to held demand provide. statute does not so government must produce statements VIII. Conclusion originator piece from the of infor- each mation excised from disclosed record. record, I On the of the entire basis too in time Such task would cost much hold the de novo factual determination only negligible resources with benefits. court, supplied trial sources courts, implied promise information under an reasoning of those case, by competent clearly proper. confidentiality, supported trial court in this is is competent Wroblewski was to attest clearly SA evidence and was not erroneous. in- necessary regarding Therefore, detail respectfully I dissent from the vestigation Appellant and to FBI investi- failure to affirm the award of 1961; gative policies in so the factual data judgment for the FBI. supplied support is sufficient to the summa-

ry judgment of the District Court. In so finding

holding, the is reiterated that it is

unnecessary subjective to review the interviewed;

thoughts person of each

should be concerned with the facts

which support the conclusion that back-

ground investigations covering loyalty and here,

employability, such as we have

overall of confidentiality policy practices

was extended public majority as a whole.14 The

opinion highly impractical reaches a result quote Judge require specific The Pacheco If courts do not Court went more affida- Products, support exemption Gesell in Morton-Norwich Inc. v. vits to a “confidential” un- Mathews, F.Supp. (D.D.C.1976). provision, prom- der this FOIA where to, ises of are not referred then “. . . The Freedom of Information Act must present the facts of the an even instant case proceed atmosphere in an of confidence in stronger situation in of the use of such government. If the cannot be trust- V, supra, ed, affidavits. As stated determin- profound the Act will never work. It is a ing something “implied” whether demands responsi- mistake to transfer administrative customs, actions, surrounding bility judges theory review of on the relationships. employed by This can be achieved without the Executive branch are not resorting interroga- judgment.” specifics honest or lack detailed of each F.Supp. applies logic 1103. The tion. same give the deference this Court SA should Wroblewski’s affidavit.

Case Details

Case Name: Joseph P. Londrigan v. Federal Bureau of Investigation

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Dec 31, 1981

Citation: 670 F.2d 1164

Docket Number: 79-1403

Court Abbreviation: D.C. Cir.