Lame, Anthony v. United States Department of Justice

GARTH, FBI answered that it was Circuit unable Before ADAMS and DUMBAULD, Judge.* respond District Lame Judges and until obtained submitted notarized authorizations of the individuals OF COURT OPINION THE sought. he Lame whose FD-302s refused GARTH, Judge. submit Instead Circuit authorizations. he de- request manded the FBI rule on his that appeals from the district Anthony Lame without The FBI informed Lame on them. judgment entry summary court’s of March all the materials he of in his Department Justice United States sought exempt were from of Information the Freedom action under 552(b)(7)(C)(unwarranted inva- §§ U.S.C. that the com- The court held Act. district exemption) (7)(D) (con- privacy sion of and that Lame plete text of all documents fidential source and confidential informa- exempt sought FOIA disclosure. were exemption).3 tion took an Lame adminis- court did not hold that We Justice, appeal of Department trative determining procedures in proper utilize Privacy but Office of and Information portion or which of docu- which documents department Appeals of affirmed Thus, exempt. ruling based ments were FBI’s initial decision. cannot be sus- inadequate submissions Accordingly, reverse and re- we tained. complaint Lame then filed the Unit- mand. ed States District Court for the Eastern Pennsylvania of District on November I. 1979, seeking requested of the release Lame, manager Anthony of an inves- Subsequently, Lame filed documents. a television sta- tigative reporting unit for Interrogatories three sets and of two Re- tion, concerning planned write a book to quests for Production of Documents. “new” FBI. The book was focus on supply any The of refused prosecution Represent- of successful federal Lame seeking. the information was Ac- Henry ative Herbert Fineman and Senator cordingly, compel discovery moved Lame Cianfrani, both former members of J. protective moved for order. and FBI legislature of Penn- of the Commonwealth The district court did not rule on either of Lame sylvania.1 On November these motions. requested access to the files the United Both Lame and the then Department of Justice maintained States summary judgment. At- Thereafter, filed motions for he prosecutions. on the two government’s tached to the motion was an only Feder- request narrowed to include his Special Agent of Toole affidavit FBI Daniel Investigation FD-302 Forms al Bureau of (App. 122a). at Toole refused confirm (“forms by infor- FBI record utilized sought of deny the existence the FD-302s testimony” become mation which later Lame, affidavit, App. 125a) reflecting why in- and set forth his reasons he Toole who, sought ex- most believed the information was terviews with individuals part, empt. he named.2

* Dumbauld, pay-offs political of made to Honorable Edward United States obtain influence Judge help District District of Penn- for Western assure admission to medical would sylvania, sitting designation. professional and other schools. fraud, charged mail ob- 1. Fineman was regarding “all 2. Lame all 302s also justice, of struction of obstruction a criminal College” Medical other officials of Jefferson investigation, racketeering, and and interstate Legislators and “all other State and/or state two of was convicted on counts obstruction officials” were in the Fineman file and all justice. charged with mail Cianfrani was “[a]ny regarding officials of [the] 302s other fraud, justice, racket- obstruction interstate University Pennsylvania” in the Cianfrani eering income He entered and tax evasion. file. pleas guilty nolo all counts. contendere on government produced The types evidence of various exemptions, infra. For the text of these see including political corruption, evidence Lame, sought equivalent, or its was to a with his mo- an affidavit Lame submitted explained large judgment. degree He available other means. It summary tion for the list of individuals compiled had concluded that interests out- that he having he reviewed weighed whose 302s desired interest in disclosure Representative transcript trial 7(C) exemp- accordingly held that the prosecu- the related Herbert Fineman “properly tion asserted”. Abrams, by having ex- Martin tion of 7(D) court next held that the Change of Plea Memorandum amined ap- was also confidential source Henry J. in the Senator Cianfrani filed plicable. find whether failed to copy of the prosecution. A Cianfrani express assurances of FBI had append- Change of Plea Memorandum was cir- confidentiality or whether under the Lame’s memoran- ed to Lame’s affidavit. cumstances, assurances essentially law maintained that dum of reasonably be v. could inferred. Maroscia sought information he since most the Levi, (7th 1977). 569 1002 Cir. F.2d public, privacy already the and confi- was it, the court On record before the district not dentiality exemptions preclude should government its bur- held that the had met disclosure. the proving requested den of that material argument oral the district court After exempt production. was from inadequate on this which to found record arguing appeals, procedure Lame that the motions, judgment summary the and decide improper, utilized the district court was granted the on June 1980 and erred in court had thirty days supplement the rec- which finding privacy that the and ord. exemptions applicable. govern- were The The then submitted an sought the responds ment material was affidavit to which several 302 forms camera uniformly exempt, accordingly and camera were attached.4 The in affidavit procedure by the was followed district court legal repeated government’s claims proper any would because further disclosure 552(b)(7)(C) (7)(D). and under §§ exempt reveal information. general The affidavit also discussed position that disclosure terms FBI’s II. woqld privacy invade individ- named We turn first to an examination of uals, parties as well as the third procedures to be in Freedom of basic used It that in order to ob- mentioned. claimed Act cases. We also examine Information interviews, either tain the 302 assurances 7(C) (D) ex- nature of the Section and implied, express or had been to the emptions in to determine the merits order would be no indis- interviewees that there procedure claim that em- Lame’s public of their criminate release to iden- ployed improper. were by the district court specifically then dis- The affidavit tities. sample 302s attached to the affi- cussed A.

davit. Underlying the Freedom of Information record, granted this the district court On Act, recently Gas we noted in Coastal judgment government. summary for the Corp. Department Energy, 644 F.2d v. privacy excep- The court first treated (3d 1981), is a that “an in- Cir. belief tion, balancing public interest in learn- proper op- vital electorate is against formed ing techniques, FBI the em- about Id., democracy.” quot- barrassment, harassment, per- eration of a and risk to ing Cong., 89th 1st Sess. S.Rep.No.813, of an safety sonal that revelation interview- (1965). appropriate request, might Upon FOIA ee’s role cause. district court agencies required are therefore “highly found it relevant” the material federal this of their contents has been made 4. Both the court and court exam- district closure attachments, ined that and but no dis- Lame. affidavit exemption. Phillippi promptly requested Intelligence release Central subject nine possession, their (D.C.Cir.1976). is in Agency, exemptions. agency statutory If Obviously, in camera procedure assumes information, requested failed to release greater importance public when the affida- ex- appeals have been and administrative generalities provides vit relies on little hausted, seeking disclosure the individual detail. agency’s denial in review of the can obtain requester Phillippi sought records Review is de novo a federal court. concerning the efforts of the to con- CIA places of establish- the Act the burden publish- news media vince the to withhold exempt ing materials are ing knowledge Explorer of the Glomar upon agency. 5 U.S.C. project. The CIA claimed could ad- 552(a)(4)(B). Any reasonably segregable, § deny mit or existence of the records portion non-exempt a record is to be sought because connection of the CIA person requesting available to the Explorer with the Glomar itself ex- Id. that record. empt information. The district District of Columbia Circuit has de granted summary judgment govern- for the veloped procedures designed allow FOIA ment based on two in affidavits camera argument, promote ef adversarial informed along with a affidavit the CIA judicial review at both the trial and ficient which was filed in support of the CIA’s levels, discourage conclusory appellate motion to have all material related to the case, exemption. ordinary In the claims of case submitted court in camera. The provide agency public must a detailed the Appeals held peculiar Court of in the exemption. justification for claims of case, government of that context where the justification accompanied by This must be confirm deny could neither nor the exist- index that statements an “would correlate documents, ence of the the use of in camera justifica made in the refusal Government’s proper. was affidavits The court cautioned portions with the actual tion docu Rosen, before the district Vaughn v. court should resort ment.” 827 denied, examination, (D.C.Cir.1973) cert. to the in camera it 415 U.S. 94 should (1979). 39 L.Ed.2d 873 There is S.Ct. first: procedures support for the in the Vaughn require Agency provide public the to a 93-854, legislative history, S.Rep. see No. explaining affidavit in as much detail as (1974) Cong. they 15 93d 2d Sess. have possible is the basis for its claim that court, Bell, by adopted been our see Ferri v. required can be neither to confirm nor to (3d 1981); 1222 F.2d Cir. Coastal 645 deny the existence of the rec- Corp. Department Energy, Gas States Agency’s arguments The ords. should (3d 1981). legal 644 F.2d 969 Cir. After the subject testing by appellant, then be to dispute put issues in and factual have been appropri- who should be to allowed seek by procedure, focus this the district court discovery clarify necessary ate when may engage still have to in an in camera- Agency’s position identify or to the inspection to determine whether the “rec procedures by position which any part ords or thereof shall be withheld.” Only established. after the issues have 552(a)(4)(B) (1976). Ferri v. U.S.C. See § process been identified this should the Bell, supra, 645 F.2d 1222. at Court, necessary, if ar- District consider agency may case In an unusual not be guments Agen- or information which the provide which able to detailed index cy public. is unable to make Vaughn requires because such an index (footnote omitted). Id. at 1013 very

could reveal the information that the Phillippi The court then remanded to the protected agency claims is from disclosure. appellant had not however, district court because agency, provide a must still engage opportunity “public explaining in as much de- been affidavit discovery, pub- possible” for the claimed appropriate tail as basis and because give opportunity all prepared the court an to review been for another lie affidavit had government materials which the claims case, Phillippi. approved the We for though exempt, to be even the decision in Ferri: Phillippi standard rests inspect whether these materials agency is unable to articulate And if the with the district court. it fears disclosure publicly specific ensue, harm that would specific and the B. more de- inspection of a then in camera government asserts that all the in- be to. tailed resorted See affidavit requests exempt formation which Lame Agency, Phillippi Intelligence v. Central under 5 U.S.C. from disclosure at 1013. supra, F.2d (b)(7)(D). 552(bX?)(C) and §§ Ferri, 645 F.2d at court. suffice permit detailed information licly. be sponse ter and the be contested non-disclosure with one Vaughn the documents limited presented sum, Such a least, In a index reasoned narrow to an special response correlating justifications resisting government’s theory to the bases on which the ordinary argument disposition requested, Phillippi, circumstance requester. may will disputed particular portions may alert circumstances provided will In both the such as the issues generally necessity why so reques- that, pub- re- no empt from disclosure: the extent (D) records would . . . piled by a thority in gation, vestigation, law enforcement lawful national source Sections nished warranted invasion (7) disclose the investigatory records and, only by the confidential source (b)(7)(C) and the course criminal by an in the case of a record com confidential information identity security intelligence purposes, agency conducting (C) law of a production (b)(7)(D) constitute an un personal privacy, enforcement of a confidential criminal investi complied but make ex- of such only to fur au in case, ordinary exceptional in cam- 7(C) privacy exemption The Section era authoriz- affidavits and submissions are prohibit in does not all disclosures which may ed and the court resort to them personal privacy, only but disclosures vade arriving in at its ultimate determination. which entail an unwarranted invasion instances, court must protected In both is personal privacy. privacy The it, form, source, only have furnished to whatever but not of the confidential private, justifi- of the public privacy parties all detailed third whom the also the for cations advanced confidential source has revealed. We dis privacy must also cussed the in Ferri: non-disclosure. However, 5. It is not that the we do not read Masonic Homes as contested records investigatory compiled standing principle Lame were records for a law en- once purposes proceeding completed, law enforcement has forcement been 552(b)(7) compiled by a compiled protection as well as records § because records lose authority longer only criminal enforcement proceeding pending. law is no It investigation. See course of a criminal hypothetical supports the view that mere 552(b)(7)(D). § possibility proceeding of a future enforcement NLRB, v. is not treat law enforce- Committee on Masonic Homes sufficient to records as (3d 1977) pending, F.2d 556 214 Cir. we wrote that union ment records when there is no compiled proceeding. prior, authorization cards were not. records has been no enforcement purposes. Bell, supra, law that: We stated enforcement Ferri v. 645 1223. It See F.2d at purposes’ questioned “[e]xemption [w]e think ‘law enforcement not been 7 is type proceeding, relate some of formal not rendered termination of unavailable 6 pending.5 one investigation relating the active these docu- 6 argues that the cards well 1383, NLRB States, Pope ments.” F.2d v. United 599 practice be used future labor in some unfair (5th validity 1979). We 1387 Cir. assumed proceeding. Bell, supra, principle Ferri v. 645 F.2d of this were, nearly enough. That If all is not 1217. NLRB fit records could this definition.

923 may vary from document to doc- personal 7(C)’sprotection Exemption may vary these interests As the trial ument. Indeed absolute. privacy is not approach portion of an individual proper portion from recognized, the ex privacy-based request under document.6 Ferri’s 7(C) a de novo emption such as section 7(C) privacy ex Unlike Section test, weighing in balancing 7(D) exemption emption, does the Section which it is invad extent to and the terest balancing. require any If the informa hand, public ed, against one on the identity of a reveal the confiden tion would disclosure, result from that would benefit source, giv tial or confidential on Masonic the other. Committee source, the infor only en a confidential Lodge v. the R.W. Grande Homes of without con may be withheld mation 214, 556, (3d 1977). NLRB, 220 Cir. F.2d interest. See Sands sideration Force v. Department of Air also See 968, (1st 1980); Murphy, F.2d 971 Cir. 1592, v. 633 352, [, Rose, 373 96 S.Ct. 425 U.S. Department of Jus Lesar v. United States (1976); Hobby Wine 1604, 48 L.Ed.2d 11] 472, (D.C.Cir.1980); tice, 492 see 133, 636 F.2d IRS, (3d F.2d 135 v. Inc. USA [502 Scientology, v. United States Newspaper, Inc. also Church 1974)]; Tennessean Cir. Justice, (9th 612 F.2d 417 (M.D.Tenn. Department of Levi, F.Supp. 1318 v. [403 1979); Kelly, 214 Terkel v. 599 F.2d Cir. 1975)]. 1979). see Nix v. (7th But United Cir. F.2d at 645 (4th 1978). States, Cir. Justice, Department v. In Lamont (footnote (S.D.N.Y.) F.Supp. 776-77 7(D) provides protec two Section 7(C) exemp- omitted), it was stated (a) “the protects from disclosure: tions. It tion: (b) source” and identity óf a confidential disclosure of against protects investigation, “confiden criminal law for a where such disclo- identity of individuals only by a confi tial information furnished embarrassment likely would cause sure Carlson, source,” see Duffin dential be- party, third either harassment person A is a (D.C.Cir.1980). F.2d sensitive, derogatory, or intimate cause person provided “if the confidential source or her is about him personal information express assurance of information under an per- or because the in the file contained circumstances confidentiality or in investiga- FBI cooperation with an son’s could be reason an assurance which such embarrassing. prove itself tion would Cong., S.Rep.No. 93d ably inferred.” exemption, infor- examining (1974) Cong. Admin. & 2d 13 U.S.Code Sess. testimony or in given by trial mation 6267, News, (Conference Report), re 6291 relevancy proceedings achieves public other Information Act and in Freedom of printed which such the circumstances because (P.L. 93-502), of 1974 Source Amendments given may indicate that testimony is Legislative History, Texts and Other Book: substantially is privacy interest individual’s 1975) (Joint Print Comm. at 230 Documents might otherwise be compelling than less Book”). Whether (hereinafter “Source assumed. implied assurance expressed is an there question of fact to be is a of question that the can be no There regard to each source. See in determined be conducted with 7(C) balancing test must Investigation, of Keeney v. Federal Bureau document, priva because the regard each (2d 1980); 114, Deer- Cir. 630 F.2d 119-120 interest of the cy interest and the Serv., F.2d by government’s Records 628 Archives & persuaded National not 6. We are 179, (D.C.Cir.1980); Congressional News per 184 argument that the se rule that there exists a Justice, Dept, Syndicate 438 v. States crimi- United with a of an individual mere connection (D.D.C.1977). F.Supp. 543-44 investigation, unwarranted constitutes an nal privacy. v. Cause his See Common invasion of 924 Justice, Dept, ed F.2d States Milliken, Irving, 548

ing Inc. (D.C.Cir.1980); and Church of 1977).7 488-91 Scien- (4th 1137 Cir. Dept, tology of California v. United States that a it has been determined Once (9th Justice, 1979) Cir. 612 F.2d 417 confidential, information that is all source description legislative history. fuller of the exempt from disclo provided source has exemp part of the second Report referring sure under The Conference reading (“con statute of the plain A by tion. compiled criminal law enforce- records only by the furnished fidential information authority “all infor- ment states that of the source”) might lead one to ex confidential only by a mation furnished confidential information that pect that non-confidential if the source be withheld information identity of the confi not reveal would compiled in the course a criminal was could be disclosed. More dential source [emphasis original] investigation.” over, “only” might of the word use In this Book at 230. connection Source provid was suggest if the information agency “the not Hart stated that Senator source, the by identi ed a non-confidential only would withhold information which can provided a confidential cal information identity of a confidential disclose However, exempt. not be source would source, protec- provide also can blanket but supported by interpretations are not such supplied by tion information a con- history legislative case law. Cong.Rec. fidential source.” 120 36871 (1974) reprinted at 451. present language 552(b)(7) was in Source Book of § Byrd original Robert remarked: “The lan- added amendment in 1974. Senator guage 552(b)(7)] also proposed this as then been broad- amendment to section [of substantially protect ened from disclo- passed Senator Hart Sen- by a ate, law sure all of the information furnished protected investigatory enforce- en- production confidential source to a criminal law ment to the extent records agency identity would forcement if information of such records “disclose 8 compiled Cong.Rec. in the course of a criminal investi- ...” informer Likewise, (1974) gation.” Book at 468. in Source at 332. Source Book reprinted Kennedy, However, the Senate Conference the final amendment stat- Senator disclosure, and Chairman of the protected Committee Chairman ute as enacted only on Administrative Practice that would reveal the Subcommittee information source, on identity also and Procedure the Senate Committee of a confidential but Judiciary, explained “pro- the bill provided a confidential requirement Keeney no to re- v. Federal Bureau of vided that there be source. See 114; only identity of a Investigation, 630 F.2d Lesar v. veal not confidential Unit- full, proposed 8. In amendment to Section 7. In the final version the 1974 debate Hart, Act, (b)(7) read: Senator who amendments original version of Ex- introduced the amended 552(b)(7) fol- Section is amended read as emption FBI has to do is stated “all the lows: by a to state the information was furnished compiled “Investigatory en- records for law exempt,” source and it confidential Cong.Rec. purposes, only forcement but to the extent (1974). We do not construe production would of such records mean a court auto- this statement to matically (A) proceedings, interfere with enforcement to the characterization of defer FBI’s (B) deprive person right a a fair trial of to a any have other courts taken a source. Nor impartial adjudication or a or an clearly constitute literally. As Senator statement the Con- Hart’s personal pri- invasion of unwarranted infra, Report, in text indi- ference discussed informer, identity vacy, (C) of disclose the cates, whether there a court determine (D) techniques investigative or disclose implied express of has been an confidentiality. assurance procedures.” See, Keeney g., e. v. Federal prior exempted 1974 from This section to Investigation, (2d F.2d 114 Bureau of 630 Cir. only “investigatory compiled disclosure files 1000, Levi, 1980); v. F.2d 1002 Maroscia 564 purposes except to the for law enforcement (7th 1977). Cir. private party.” by available law to a extent 89-487, (1966). 251 No. 80 Stat. Pub.L.

925 Nevertheless, which is source, information subse- any information obtained also but investigation.” disclosed, by a criminal quently from him in such as the source’s at 459. Source Book testimony trial, may be evidence of the fact there has been no assurance of developments the led legislative These government. the confidentiality given Circuit to write in District of Columbia Justice, will, he Dept expects of 636 If a source at some Lesar v. United States date, (D.C.Cir.1980): testify regarding F.2d 472 publicly later 7(D) provided, may differs other it Exemption from information he has be dif- its applicability in that exemptions FOIA of imply ficult to an assurance confidential- specific factual con- depends on the ity, despite sensitive possible nature of document; instead, particular tents aof given. the information pertinent question is whether the in- issue was furnished a formation at C. during of source” the course “confidential legitimate investigation. law a criminal whether, issue us confronts tak- then question answered in the Once that ing exemp- into the nature of account affirmative, all such information obtained claimed, procedure employed by tions pro- source receives the confidential in the instant case was tection. correct where the FBI claimed it could nei- Id. at 492 omitted]. [footnotes deny ther admit the existence nor Keeney v. Federal Bureau of In- See also forms interview fear (2d 119 vestigation, 630 F.2d n.2 Cir. breaching relationships confidential or in- 1980). vading privacy interests. given by information a all the Since Special Agent prepared FBI Daniel Toole exempt, it follows confidential source affidavit, FBI’s initial and executed the portion infor the release of such which was record a matter in this exemption. mation not lift the blanket does This case. affidavit did no more than state consistently held sub Courts have that the general objections basis of the FBI’s originally sequent of information providing request- the information that was does not given render non- in confidence Toole ed. asserted that individuals who any origi of the information confidential FBI do furnish information to the so with nally provided. Keeney, supra, See 630 understanding giv- information n.2, Lesar, supra, F.2d at 636 F.2d at 119 relationship en with the them and their 491; 170, 176 Kelley, 584 F.2d Scherer v. n.7 agency will be held in strictest confi- (7th denied, 1978), Cir. cert. U.S. Toole, According without dence. a nota- (1979). L.Ed.2d 778 There S.Ct. individuals, these rized authorization from expressed been an fore once there has presume FBI will individual implied confidentiality, sub assurance expects information he has sequent publication by release or released, the FBI will not be will use portion of the of a information confidentiality and/or FOIA ex- negate any does not originally given.9 emptions prevent response disclosure. In guarantee upon argument that information automati- answer cally person agency’s longer files can available to the contained in an no becomes regarded exempt as confidential because whom relates. The nontestimonial infor- confidentiality by damaging relinquished may his source has mation more than be far writing Judge Swygert, testifying, freely given place testimony for the court Kelley, (7th great peril. 176 n.7 Scherer source A source would be denied, 1978), (1979), unlikely any subject 440 U.S. testify Cir. cert. if he or she every doing transcription wrote: know that so investigative agent regarding made testimony an person may have Because a be their could released to the specific topic conversations at a not mean trial on a does party informing. by about whom the source source that all information offered that investigations of in its the that the identities than information Lame’s contention to publicly and the contents of which the source known to the informants already of been disclosed. have furnished. Revelation such non- information had public place the Toole stated that: information would source danger just types possible in of the of the FBI is in However, clear that it harassment, criticism, public social ostra- a review of position a to determine cism, injury privacy the physical or even exactly which files what information confidentiality exemptions and of the public not a matter of might exist is or is designed prevent. to Consequently, to or FOIA are knowledge. confirm by deny of certain FD-302s the existence privacy par- Toole of third added to them with- affording plaintiff access ties mentioned in the FD-302s also had to knowing fact of indi- whether the an out protected. be in FBI involvement an criminal vidual’s The as noted previously, district court public investigation is a matter of knowl- public to found Toole’s affidavit be inade- edge in of itself an would constitute then an in quate, and the FBI filed camera personal privacy and a breach invasion of to was attached certain affidavit which relationship. Further- of a confidential sample FD-302 forms. This was the first more, responsive to should FD-302s any record the FBI that of admission located, request plaintiff’s be and should requested 302 forms existed. possible it be to that the indi- determine argued The that the FBI information re- viduals in testi- noted the FD-302s have corded in the FD-302s would never have public judicial proceeding, fied in or a given by particular been source without way have in a some other made matter implied promise confidentiality an they public knowledge in the fact were rights many that the individ- concerning contact with the FBI a crimi- uals mentioned the forms would be com- in investigation, nal the fact remains promised by release. The in camera affida- may the document contain information vit, however, did not discuss what extent public knowledge. that is not matter identities of the sources and the informa- cooperation an individual’s Because already tion contained in the FD-302s had particular concerning criminal FBI trial been disclosed at Fineman’s means, investigation may, by whatever Change of Memorandum Cianfrani Plea or public, have it does become known position the effect on FBI’s not follow that all information furnished at Fineman and Cian- or express the individual under an Indeed, proceedings. yet frani the FBI implied assurance of con- testimony to admit trial tained in an FD-302 is available for re- Change information contained in the requester. quite lease to an FOIA It is FD- Plea Memorandum is related possible concerning that an FD-302 such may possess, 302s which it or whether it an individual information would contain possesses all the FD-302s which Lame has little, none, very perhaps even record, requested. specifically this On publicly which has been testified granted summary judgment district court the source. Individuals would inhibit- government. furnishing if ed the FBI acknowledges, as it they transcript of came to believe that a must, produced, it both affidavits they investigating everything said an camera, public record and in did not Agent during FBI the course of conver- Vaughn Nevertheless, meet the standards. sation, regardless of whether the infor- proce- contends to be the mation is intended substance proper. utilized the court were public testimony, dures It could be released to nonpublic provided affidavit requester. FOIA informa- asserts unique was as tion furnished a source have been detailed as circumstances supra. significant aiding Phillippi, FBI permit. even would See Ac- more invaded cording government, to reveal and that these sources are all to the confi- merit; pro- wholly dential sources is without any existed and to whether documents (2) in the absence of more definitive any description further or information vide information, specific particularly documents, with concerning these would entail respect pro- to the Fineman and Cianfrani exempt that was releasing information ceedings, required exemption findings the the Act. The in cam- from disclosure under by the district court could not be made. employed, procedure it main- era affidavit public We are satisfied that the FBI’s affi- tains, by Phillippi. The was sanctioned Phillippi davit sufficient to meet public that rec- government concludes Thus, expressed standard as in Ferri. produced it allowed for informed adver- ord requiring district court did not err in not debate, that the entire record sarial further articulation nor did it err in permitted judicial review. informed proceeding to an examination of the FBI’s agree government We with the that in camera submission. Vaughn employed could not be in index government response Had government admitted this case. Once district court’s order filed an affidavit possessing interview forms with which, form, though in an in camera was as informants, revealing it would be these public explanation extensive required as the exempt— very information it claimed to be Vaughn, the district court would sources.10 And the identities of confidential necessary ingredients have had before it the provided by a confi since all information claimed, exemptions to rule on the and we exempt, possibility ex dential source is position then would have been in a better cursory description ists that even the most However, rulings. review those the in cam- form the contents of the interview Vaughn era affidavit does not meet confidential, would, if the source was reveal requirements. government in its in description protected information. Such a camera submission filed no more than a might indirectly identity also disclose the sampling of the FD-302s from the Cianfra- the source. ni and Fineman files. The 302s were at- Lame, recognize though We that even he explaining why tached to an affidavit obtained from the Fineman government believed these documents to be Change trial and the Cianfrani of Plea exempt from disclosure. The Memorandum, establishing has no basis for impact did not discuss the disclosures pro- that the individuals named in those pro- made at the Cianfrani and Fineman ceedings have in fact been interviewed ceedings respect privacy with to individual FBI, and their interviews recorded on respect any express concerns or with recognize 302 forms. We also in the implied assurances of case, govern- peculiar context of this Moreover, given. have been identity reveal the ment will not those government has also now admitted that 302s, individuals for whom it has and thus with, other 302s were not filed provide the nexus between Lame’s informa- discussed in the in camera affidavit. The proceed- derived from court tion which was gives affidavit itself no information about ings contained in the and the information individuals, whether 302s exist posture It was in this FBI records. specifically named either or those included original public court reviewed the categories, n.2, specified within the see su- by Toole. Two pra, by only affidavit filed conclusions Lame. We can surmise from (1) government’s can be drawn from that affidavit: it the manner in which the made, that Toole’s assertion that cannot said camera submission was regards the FBI’s sources will have their the submitted 302s and Thus, particular position the contents of documents. FBI’s could not even deny admit or guishes the existence of FD-302S distin- this case even the use of codes would be incon- position govern- cases where the sistent taken this case those only thrust of the was directed ment. ing alleged to repre- as each source. In explanations confidential accompanying determining the FBI’s whether an assurance of confi- the 302s in files. all sentative of argument proceed: dentiality given, been these explana- would had government’s The exempt, are tions should have included discussion of documents if these submitted exempt. impact any subsequent public the then, of disclo- all documents are the sures the source. accept argument and we do this We not procedure sampling technique by “repre- The utilized which approve the cannot court, case such as this sentative” documents were furnished to the even in a the district give with which court could the district threshold issue district' not one where the contend, government’s appropriate court on it could is the an basis which the court must appraise government’s inability deny or the existence of the merits of the confirm to requester confidentiality exemption claim the sought by the for all the documents government ex- The does not its asserted ex- documents. Lame. document and Each plain why in affidavit it has individually explained in in its camera emption must be analyzed every requested not document confidentiality. privacy of or terms explanation court an as furnished the with 7(C) explained, pri- the As earlier Section purported exempt to its status.11 balancing vacy requires a test in exemption government has Because the failed to and the extent to privacy which the interest explana- with the supply the district court invaded, against is the which is balanced Act, as necessary tions under the we have that would result from disclo- benefit it, and to construed has failed make availa- segment the sure of each of document. explana- ble which those the documents to Here, not only court should have district relate, tions court not district could 302s available to it if it had relevant properly request rule on and the Lame’s them, greater of to refer to but desired government’s exemption contentions. importance, explana- it should have had an why FBI of in each case disclo- tion findings appear No in the district court’s in or sure result embarrassment would opinion respect to the documents actu- with either to the individual inter- harassment satisfy 7(C) ally submitted which can parties. explana- That viewed to third or exemption, impact privacy because addressed, impact, tion also should have proceedings the Fineman and Cianfrani are any, if Fineman or the Cianfrani trial Similarly, analyzed. not the district court Change Proceedings on the Plea issue of opinion findings respect no with makes privacy the extent of the inva- express implied assurances confiden- sion. tiality for those documents.12 n learned, 7(D) pro- Additionally, government the Section must

As we have explanations exemption requires respect vide with confidential source detailed supply be found for which it assurance of 302s did Thus, court, explanations equally each source. These must be court. assurances, explanations express such which we have order find that detailed as implied, given, required sample were had to have been for the 302s submitted with government explanations detailed relat- the in camera furnished with affidavit. danger may be We be refer can protect couched in terms which will still 11. observe the obvious present may “sampling” identity in a case: the sources. No individ- “repre- given long choose to submit information ual appears identification as it need sentative” documents for which claims have been individ- documents exemption persuasive. If the most the dis- are analyzed. ually examined and only portion trict wished to examine court respect expressly no views We intimate with records, it, government, should not the to may the ultimate decision which sample. chosen the have after it been furnished reach necessary explanations and for an documents imply if an We mean indeed do not appropriate novo de review. identity justified, of the 302s findings must be revealed. to which we Congress must make available to the district believe that enacting also FOIA question. court the documents in contemplated prob- not have all the lems which this case has rise. sum, therefore, explanation support supply an What us particularly concerns is that a explanations exemption. claimed Such agency, FBI, being law enforcement obviously bybe affidavit and must be required expend sorely resources, needed court. examined burgeoning to deal problem with the original furnish the must also seriously citizens, crime which besets all our requested (here 302s) documents large but to devote a number of hours of explanations which the refer. It cannot exacting sorting labor out affidavits that samplings merely furnish of these docu- apprehend were collected to crimes and to ments to the district court. The district prosecute Moreover, informants, offenders. court, hand, on the other need not make copies once aware that of affidavits sub- every individual examinations of each and mitted to agencies law enforcement can be document, requested long so as we are as- public, might be inhibited from future requested have sured documents cooperation. agency been made available A further concern that the use of the scope court. The extent FOIA, here, employed in the fashion will court’s examination of the docu- impose an additional burden on the trial obviously ments is within its discretion and already courts that are overworked. It will guided by explanations will be which necessary make it large for them to review appear in the FBI’s affidavit. records, numbers of such as had been re- Once the district court has examined the quested here, in camera. And the fact that explanations exemptions, for the claimed it procedure placed this will be in an adversar- may group findings by category its if it so ial prolong process context will further repetitive, desires. It need not make indi- and add to its vexatious nature. findings exemp- vidual as to each claimed Perhaps Congress when is made aware of grounds tion if its reveals examination problems spawned by the use of the Act either or disclosure which are which we have identified here and on which common one to more than document. Our Judge slightly Adams has commented in a concern here is not the form or the Bell, different context in Ferri v. 645 F.2d manner which district court’s find- (3d 1981), 1226 n.17 Cir. will at- Rather, ings presented. are our concern tempt to accommodate the concerns which centers on whether district court has expressed. we have inquiries satisfied the substantive which Congress has mandated and which we must

enforce. IV. procedure employed

Because in this case did not result in the district court III. being necessary furnished with the infor- analysis proceeded Our on the basis rulings, mation essential to its we cannot drawn, legislation legislative of the approve the manner in which the district history, which and the cases have thus far proceeded. being This so we are legislative construed the mandate. There- obliged to reverse the district court’s order obliged fore we have 'been to remand this July proceeding to the district court for the rea- expressed. July of the sons which we have heretofore order district court of However, though language 1980 will be reversed even and the case remand- legislation, interpreting proceedings opin- as well as the cases ed for consistent with this today, it countenance the result reached we ion.

DUMBAULD, does not render non-confidential Judge, con- confidence District Senior provided,” originally dissenting. any of the information curring and Judge Swygert quotation thorough with the accurate and agree I Kelley, 176 n. in Scherer provisions1 con- statutory exposition of the 1978): (C.A.7, scholarly opinion, Judge Garth’s tained case must given and with the conclusion person may Because a have testi- fur- Court for to the District be remanded topic mony specific on a does trial (1) the reasons ther consideration not mean that all information offered findings not make Court did the District guarantee upon of confiden- source given to the FBI tiality automatically becomes available confidentiality; promise of person to whom it relates. The non- all the (2) the FBI did not furnish may be testimonial information far more in cam- to the court for documents involved any testimony giv- damaging freely than era examination. place great in may en and the source disagree specification with is unlikely I peril. What A to tes- source would be complied on re- to of standards be tify subject if she he or know by and District mand, the FBI both transcription by by doing every so need- Court, unduly and which to me seem agent regarding investigative their impracticable. lessly and burdensome could released to the conversations be party about whom the source inform- Judge opinion, to According Garth’s ing. Court FBI in its affidavit and District findings, deal in detail with in its or To me the nature extent of disclo- produced for in camera ex- every document utterly is plea sures at trial irrelevant to or The FBI and the District amination.2 confidentiality vei non of communica- to in detail are also directed consider Court previously tions made. (in subsequent impact disclosures subsequent It is of course true discussions). testimony plea-bargain or trial may prior of events constitute evidence con- treating my judgment, the second In example, X-ray a later ditions: for disclos- first, finding of point once the confidentiali- slowly ing developing of a existence District ty duly made has been may be of chronic disease evidence the ex- Court, com- status of the information so time, of disease at an earlier istence is in concrete” once municated “fixed namely period critical for entitlement to all, exempt remains from and lung” “black benefits.3 public proclamation under FOIA whatever However, this rule likelihood may be made of the identical material helpful applicable would be determina- Judge This well elucidated in thereafter. of issue of vel non subsequent dis- tion that “the Garth’s statement extremely unlikely. originally given in in the case at bar is of information closure explain why analyzed . not particular 5 does .. it has 1. be noted that under should every 552(b)(7)(D) a if information is document and furnished the U.S.C. source,” explanation purported from all the information its “confidential court with an as to (even exempt exempt p. if opinion, such from disclosure source 928. status.” Garth publicly else information is available the same where). Moreover, in a “confidential source” may Conversely, past events or misconduct 3. any person giving in confi cludes of future unfitness to exercise evidence is not “informants” dence and limited profession “Past conduct or office trust. danger implicated from criminals whose fitness; past may present loyalty well relate to “singing” Rovi been discussed. has often relationship present have a reasonable 627, 59, 623, 1 353 77 aro v. U. U.S. S.Ct. S. Angeles v. Los and future trust.” Garner (1957). L.Ed.2d 639 Board, 909, 912, 720, 71 S.Ct. 95 341 U.S. (1951), and cases cited L.Ed. 1317 other document and asserted “Each Dumbauld, United The Constitution explained pri- individually in terms must be vacy (1964) States 199-200. confidentiality.... nary the communication was in- testimony case impact of trial and Hence the justifiable expectation deed made with a singled out should not be plea discussions public policy confidentiality. A akin to that significant emphasized and indis- and judicial prosecutorial underlying immu- considered pensable element to be nity encourage should free communication making its determination District Court helpful to of information law-enforcement on remand. according protection authorities course, ex- at the trial if a witness Of annoying unexpected publicity to informa- had he re- that at no time pressly stated S., tion thus communicated.6 Roviara U. confidentiality, this testi- quested or desired 623, 627, 1 L.Ed.2d 353 U.S. S.Ct. weight; or if it given due mony would be (1957). deranged neighbor had appeared disagree- Reverting my point first purpose specific FBI with the gone unduly I it is and unneces- ment. believe defamatory rumors hope spreading impracticable sarily burdensome exposing him acquaintance and about an the due course of law enforcement trammel give publicity, the court would damaging justice by impos- and the administration appropriate consideration to that revelation. investiga- ing requirements that both the justification general there seems no But in agency reviewing court devote tive and the particular consideration for requiring time and effort to the detailed extensive plea testimony or discussions. trial discussion of each document submitted for simply be taken into material should Such in camera examination. along with all other circum- consideration brings to mind the The situation anecdote surrounding the communication to stances publisher (perhaps it was about a Walter FBI, District Court should be and the aspiring Page) Hines to whom an author of confiden- free to make its determination manuscript a number of submitted a with totality circum- tiality upon vel non together. pages glued When in due time stances. manuscript rejec- was returned a stated, And, previously once such a as slip, complained the author that his tion confidentiality at the time determination of rejected complete without a work had been duly has been of communication publisher replied: “I do reading. The not Court,4 it is immaterial and the District egg it need eat an entire to know that is anyone may publicity irrelevant what later rotten.” give thus communicated to the information judge examining in camera a Similarly a confidence: all the information commu- always mass documents does not need to “confidential source” re- nicated entirety them in its peruse every one of exempt under mains from disclosure FOIA. nature of an item word word. Often the examining sur- the circumstances glance. yeux aux and is evident at saute public- rounding the communication of a “unwarranted inva- That there has been an the FBI or other spirited personal privacy” citizen with or that confiden- sion agency require tiality implied clearly law enforcement it should intended or involved can be seen very little evidence to establish in the ordi- circumstances going accept emphasized 6. While it be too far to 4. It must be that in the case at bar Judge merely “persons position that such interviews are al- the District stated Bureau’s basis, ways cooperate on a it seems clear that with the FBI often do so with confidential who average expectation entertain a normal will be re- the expectation citizen would confidentiality. Perhaps supplied]. spected” to min- This falls far short [Italics might adopt controversy persons finding the Bureau interviewed in the imize reading persons expected confidentiality. policy all interviewed a case at bar it) (and having sign similar to statement them rights. regarding Miranda It 571, the statements 564, Matteo, 5. Barr v. 360 U.S. S.Ct. clear, debate, prolonged without would then (1959), citing 3 L.Ed.2d 1434 has been claimed Biddle, whether Gregoire v. Learned Hand 579, waived. (C.A.2, 1949). Frequently evaluation. without elaborate the FBI to state that suffice for should INDUSTRIES, SEASON-ALL self-explanatory, without la- document is Petitioner, INC., if a series of boring point; obvious by an identical documents is infected NATIONAL LABOR RELATIONS non-disclosure, mandating it should

ground BOARD, Respondent. categories, without them in suffice list No. 80-2096. commentary on each one annotations and the de- individually. same true of United States Court of Appeals, required District gree of in the elaboration Third Circuit. Judge’s findings. Argued March 1981. repetition course that all the Of it bears involved must be available for documents July Decided judge by the in such detail examination Rehearing In Banc Rehearing and necessary; and that he and he deems 15, 1981. September Denied FBI, what degree of scruti- must decide required ade- ny is in order illuminate

quately the committed to his determi- issues terms of the and to

nation statute clarity grounds

elucidate with sufficient

of his decision. Congress enactments of

Where the

precedents jurisprudence of this in the otherwise, clearly

Court do not command permitted fight

the FBI crime should be investigating law violations of federal serve as a to fur-

rather than to librarian complete account of the

nish criminals a government’s possession

evidence in the

demonstrating criminality, or to con- research for the benefit of

duct historical seeking spread

journalists the slime of throughout

scandal and sensationalism judi- monetary gain. Similarly

land

ciary permitted perform its should be adjudicating

normal task controversies

importance by development applica- legal to dissi- principles

tion of rather than

pate through energies in file searches triviality haystacks

mountainous

unproductive paperwork. priorities These particularly important present

are in the budgetary mis-

era of constraint when all

spent resources diminish what is available public.

for useful service

I concur and dissent to the ex- therefore

tent indicated above.

Case Details

Case Name: Lame, Anthony v. United States Department of Justice

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 16, 1981

Citation: 654 F.2d 917

Docket Number: 80-2458

Court Abbreviation: 3rd Cir.