The plaintiff is an attorney who is representing the plaintiffs in a civil litigation now pending in the Circuit Court for Baltimore City. That case involves an alleged breach of fiduciary obligation and the plaintiff in this case, on behalf of the plaintiffs in the civil litigation in state court, is attempting to obtain documents originally in the custody of the United States Attorney for the District of Maryland. The original request by the plaintiffs was made on August 9, 1979 under the provisions of the Freedom of Information Act, 5 U.S.C. § 552(a)(3). The final administrative action denying that request was taken by the Acting Associate Attоrney General on February 1, 1980. The plaintiff filed suit in this Court on February 29,1980, seeking to compel the federal defendants to disclose those documents covered by the Freedom of Information Act request. The federal defendants moved for summary judgment and submitted the documents for in camera rеview by this Court. Homer Gudelsky, a defendant in the state court litigation and the subject of the documents being sought by the plaintiff, was granted leave to intervene in this case without objection of any of the parties.
On October 10, 1980, a hearing was held on the record for the purpоse of obtaining clarification regarding some of the submitted documents. In order to protect the confidentiality of the documents, attorneys for the plaintiff and intervenor were excluded from part of the hearing but all parties were provided the oppоrtunity to present their arguments and the entire hearing was recorded. For the reasons to be set forth below, this Court has determined that portions of the documents are exempt from disclosure under the Freedom of Information Act and has indicated these portions by marginal notation on the sealed documents. However, the remainder of the documents are not exempt and should be disclosed to the plaintiff.
The documents at issue in this case are four pages of handwritten notes taken by Assistant United States Attorneys during two meetings betwеen Assistant United States Attorneys and Homer Gudelsky and/or his attorneys and one telephone call from an attorney representing Gudelsky. The notes, which have been filed under seal as part of the record in this case, do not contain verbatim transcriptions of the conversations but rather contain only selected portions of the meetings which the Assistants chose to record.
*286 The federal defendants have asserted that these documents are exempt from disclosure under three separate statutory exemptions сontained in the Freedom of Information Act: 5 U.S.C. § 552(b)(5) [work product]; § 552(b)(7)(C) [unwarranted invasion of personal privacy]; and, § 552(b)(7)(D) [records compiled by a criminal law enforcement agency in the course of a criminal investigation which contain confidential information furnished only by the confidential source]. The burden is upon the federal defendants to show that one or more of these exemptions applies. 5 U.S.C. § 552(a)(4)(B). The attorney for the federal defendants stated at the hearing that they were relying principally upon the work produсt exemption of § 552(b)(5) for their refusal to disclose the material contained in these documents. However, inasmuch as the pleadings have treated all three grounds of possible exemptions, this Court will consider the applicability to this case of exemptions under §§ 552(b)(7)(C) and (D) as well as the work product exemption of § 552(b)(5).
The exemption principally relied upon by the federal defendants is the so-called “work product” exemption. 5 U.S.C. § 552(b)(5) expressly exempts from disclosure under the Freedom of Information Act, “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” The Supreme Court has construed this exemption as permitting an agency to withhold documents which are privileged and, therefore, normаlly not available in pre-trial discovery to a person engaged in litigation with the agency.
N.L.R.B. v. Sears, Roebuck & Co.,
The Supreme Court has recognized that Congress had the attorney’s work-product privilege specifically in mind when exemption (5) was adopted.
Sears, supra,
The federal defendants have asserted that the entire group of documents, including purely factual material, should be ^exempt from disclosure under the Freedom
*287
of Information Act becausе their release would allegedly have an adverse impact on the law enforcement process. They attach great weight to footnote 9 in
Deering Miliiken, supra,
where the Fourth Circuit noted, “[Fjaetual material in witnesses’ statements may be withheld under exemption 5 when disclosure will hamper the ‘deliberative processes’ of government by making it difficult for the government to obtain essential information.”
The federal defendants have also asserted exemptions for these documents under §§ 552(b)(7)(C) and (D) which expressly exempt:
“(7) investigatory records compiled for law enforcement purposes, but only to the extent that the prоduction of such records would ...
(C) constitute an unwarranted invasion of personal privacy,
(D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation . .. confidential information furnished only by the confidential sоurce.”
The documents at issue in this case, notes taken by Assistant United States Attorneys during the course of a criminal investigation, are unquestionably “investigatory records compiled for law enforcement purposes.” However, it does not appear that their disclosure to the extent indicated above would contravene the limitations set forth in either subparagraph (C) or (D).
In referring to the (7)(C) exemption, the Supreme Court has ruled that when privacy is asserted as a reason for exemption from disclosure under the Freedom of Information Act, Congress intended the courts to balance the private and public interests.
Department of the Air Force v. Rose,
The final exemption urged upon this Court by the federal defendants is that production of these documents would result in disclosures in violаtion of § 552(b)(7)(D). The Fourth Circuit has interpreted the legislative history of this exemption as allowing the identity of a person furnishing information to be protected “if the person provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred.”
Deering Milliken, supra,
at 1136-37. That Court also held that whether the proof shows an express or implied assurance of confidentiality is ordinarily a question of fact.
Accordingly, it is this 19th day of November, 1980, by the United States District Court for the District of Maryland, ORDERED:
1. That the defendants disclose to the plaintiff those documents submitted for in camera insрection, except for those portions held to be exempt, as indicated by marginal notations on the documents which have been filed under seal as part of the record in this case; and
2. That a copy of this Memorandum and Order be sent to counsel for all parties.