Sеth Rosenfeld sued the Department of Justice and the Federal Bureau of Investigation (the government) under the Freedom of Information Act (FOIA) to obtain information about FBI investigations of several individuals and 1960s protests at the University of California, Berkeley. The government appeals from the district court’s grant of summary judgment, which ordered the government to release various documents it sought to withhold under FOIA exemptions.
I. Background and Proceedings Below
From late 1981 through early 1984, Rosen-feld filed requests with the Federal Bureau of Investigation (FBI) under FOIA, 5 U.S.C. § 552. 1 Rosenfeld sought release of documents relating to the FBI’s investigation of people and organizations involved in the Free Speech Movement (FSM). The FSM organized demonstrations at the University of California, Berkeley (UC Berkeley), which protestеd campus regulations restricting political activities on campus grounds. The FBI located 8,432 documents responsive to the requests. It released 1,795 pages in their entirety, released 4,985 in redacted form, and withheld 1,652 pages in their entirety.
The parties litigated over documents in nine FBI files, but the government only appeals from rulings on documents in three, the FSM, Higgins, and Kerr files. As part III describes in greater detail, the government began investigations of the FSM out of a concern that its leaders were members of communist or subversive organizations. Clark Kerr was Chancellor of the UC Berkeley campus from 1952 to 1958 and President of the UC system from 1958 to 1967. Marguerite Higgins wrote about the FSM as a journalist.
Rosenfeld filed suit in the District Court for the Northern District of California on February 22, 1985, seeking rеlease of the withheld information. The district court referred the matter to a magistrate. The parties agreed to focus their dispute on a representative sample of documents, using the court’s ruling on these documents as guidance in processing and releasing the approximately 6,600 disputed documents. The FBI filed a Vaughn index 2 on a representative sample of 200 disputed documents picked by both parties and an additional index for 250 additional documents chosen by Rosenfeld. Both parties also filed declarations (some in camera) in support of their arguments. The magistrate conducted in camera review of the full texts of the indexed documents and 36 additional pages requested by the FBI. On February 3,1988, the magistrate filed her opinion and recоmmendations.
On March 29, 1991, the district court issued its opinion based in part on the magistrate’s recommendation and its own independent review of the record.
The government moved for reconsideration of this judgment. Two of the government’s reasons for reconsideration are relevant to this appeal. The government argued that certain documents filed in the FSM file had been cross-filed into that file from other FBI investigatory files, and were exempt for a law enforcement purpose not connected to the FSM investigation. The government also
*807
asked the district court to reconsider some of its findings in light of the Supreme Court’s decision in
United States Dep’t of Justice v. Reporters Comm. for Freedоm of the Press,
The district court had subject matter jurisdiction of this case under 28 U.S.C. § 1331. The government filed a timely notice of appeal of the order denying reconsideration on September 27, 1991. 3 We have jurisdiction under 28 U.S.C. § 1291.
II. Standard of Review
We review the legal conclusions in the district court’s grant of summary judgment de novo. In this circuit, we apply a special standard to review factual issues arising in an appeal from a grant of summary judgment in a FOIA case. Instead of determining whether a genuine issue of material fact exists, we employ the following two-step standard. We inquire whether an adequate factual basis supports the district court’s ruling. If such a basis exists, we overturn the ruling only if it is clearly erroneous.
Painting Indus. Market Recovery Fund v. Dep’t of Air Force,
III. Exemption 1: Information Classified in the Interest of National Security
The district court denied the government’s requests to withhold material from FSM Docs. 51 and 495, Higgins Doc. 22, and Kerr Doc. 244 on exemption 1 grounds.
4
The government bore the burden to sustain each of its exemption 1 claims. To carry this burden, the government needed to “provide the court and [Rosenfeld] with information sufficient to determine whether the source was truly a confidential one and why disclosure of the withheld information would lead to exposure of the source.”
Wiener v. FBI,
Neither the government’s appeal briefs nor its withholding requests demonstrate with any particularity why portions of FSM Doc. 51, Higgins Doc. 22, or Kerr Doc. 244 should be exempted from the disclosure order. The district court correctly concluded that the government did not carry its burden as to these withholding requests. The government asks us to reverse the district court for not having afforded the government’s classification decisions substantial weight. See id. at 980. This contention does not persuade us because the government failed to make an initial showing which would justify deference by the district court. See id.
Having reviewed the government’s request to withhold information from FSM Doc. 495, we are satisfied that the government carried its burden. The government showed with particularity how disclosure might reveal the identity of an intelligence source. The district court sustained the government’s request in part by allowing the government to delete information identifying the informant, but ruled that the document, edited accordingly, would not reveal the informant’s identity.
IV. Exemption 7: Documents Ordered Disclosed As Having No Law Enforcement Purpose
A.The Rational Nexus Test
The remaining document disclosures all raise issues about 5 U.S.C. § 552(b)(7). This section includes six different exemptions, all of which share the threshold requirement that the withheld record be “compiled for law enforcement purposes.” The district court denied some withholding requests because the documents were not compiled for any law enforcement purpose, and others because, although the documents met this threshold requirement, they did not satisfy the requirements of any of the particular exemptions. This part addresses rulings that documents had no law enforcement purpose. Parts IV, V, and VI consider exemption 7(C), 7(D), and 7(E) issues, respectively.
The government always bears the burden to show that a given document is сovered by an exemption and should be withheld. 5 U.S.C. § 552(a)(4)(B). However, in this case, the government’s burden for satisfying the threshold requirement of exemption 7 is easier to satisfy than the burden for other requirements. The releasing agency in this case, the Federal Bureau of Investigation, has a clear law enforcement mandate.
Binion v. Department of Justice,
The rational nexus test requires courts to accord a degree of deference to a law enforcement agency’s decisions to investigate. The court need not accept the government’s claim that a previous investigation had a law enforcement purpose if the asserted purpose is “pretextual or wholly unbelievable.”
Pratt v. Webster,
B.Marguerite Higgins
The government appeals from the district court’s ruling that “[t]here is nothing in the [Marguerite] Higgins documents that indicates any legitimate law enforcement purpose within the purview of the statutes and the ease law.”
C.Clark Kerr
The government also appeals from the district court’s conclusion that “[t]he Clark Kerr documents as a whole are not entitled to a (b)(7) exemption since it is clear that they do not relate to any investigation performed in connection with a legitimate law enforcement purpose.”
The government argued for withholding Kerr files because they were compiled to complete four personnel investigations. The FBI undertook a 1947 investigation on behalf of the Atomic Energy Commission (AEC), which was considering Kerr for an appointment as a labor advisor. It performed a 1953 investigation on behalf of the AEC again, because Kerr, as Chancellor of the University of California, had access to classified matters from UC nuclear energy laboratories. (Rosenfeld sought access to the report of this investigation, labelled Kerr Doc. 1 in the district court’s index.) The FBI completed a 1958 investigation on behalf of the White House, which was considering Kerr for an appointment to the International Development Advisory Board. Last, it performed a 1964 investigation on behalf of the White House, which was considering him for an appointment to the Board of the Communications Satellite Corporation. (Rosenfeld also sought access to this document, labelled Kerr Doc. 21 in the district court’s index.)
We have held that FBI pardon applicant investigations satisfy the rational nexus test.
Binion,
Rosenfeld introduced evidence showing that the FBI waged a concerted effort in the late 1950s and 1960s to have Kerr fired from the presidency of UC Berkeley. The earliest evidence of this effort is Doc. 2, a memorandum dated two months before the 1958 investigation. The memo notes that Kerr was formally inaugurated as President of UC Berkeley, and offers investigative information about Kerr “merely for [the FBI’s] information and in the event that the Bureau may receive some inquiry concerning Dr. Kerr, who at best is a highly controversial figure in California education.” We will not recite all of the documentation for this camрaign to fire Kerr, but we will describe some of the highlights. FBI agents counted the number of Regents on Berkeley’s Board of Regents who would support or oppose an attempt to have Kerr removed as President. One agent made a recommendation to the file in 1965 that Kerr be fired for his “lack of administration” during student protests. Last, then FBI-Director J. Edgar Hoover made a notation on the margin of one report that he knew “Kerr is no good.”
These documents all support a conclusion that these reports were compiled with no rational nexus to a plausible law enforcement purpose — that any asserted purpose for compiling these documents was pretextual. Doc. 2 suggests that the FBI knew no investigation was pending and that thе FBI had no reason to investigate him. The later documents all strongly support the suspicion that the FBI was investigating Kerr to have him removed from the UC administration, because FBI officials disagreed with his politics or his handling of administrative matters. Conspicuously absent from these documents is any connection to any possible criminal liability by Kerr. While the statements of dislike for Kerr in the record are egregious, the other documents constitute “precisely the sort of generalized monitoring and information-gathering that are not related to the Bureau’s law enforcement duties.”
Lamont v. Department of Justice,
The only documents in the Kerr file for which such a presumption might be rebutted are the reports of the personnel investigations. Rosenfeld seeks disclosure of two of the four personnel investigations, the 1953 report (Doc. 1) and the 1964 report (Doc. 21). Since the earliest evidence of the campaign to have Kerr fired is in 1958, there is no *810 factual basis to conclude that the campaign extended back to 1958. Thus, no evidence in the record rebuts the government’s asserted law enforcement purpose, to conduct a background check requested by another agency. We therefore reverse and remand for a determination whethеr any of the specific exemption 7 exemptions apply to Kerr Doc. 1.
The 1964 report, Doc. 21, was compiled after the campaign against Kerr started. The district court’s opinion gives no indication whether the court considered that the document might have been compiled for a legitimate purpose, a personnel report, even if contemporaneous documents were compiled for a different purpose. See id. at 1449, 1457. We remand for a determination whether other evidence renders unbelievable the government’s assertion that Doc. 21 was compiled to complete a personnel background check.
The government has presented no other evidence rebutting the evidence thаt documents in the Kerr file compiled after 1958 were compiled with an illegitimate law enforcement purpose, to have Kerr fired from his position in the UC system. We affirm the district court’s rulings as to the rest of the Kerr file.
D. The Free Speech Movement
The government sought to withhold many documents in the FSM file under the various exemption 7 exemptions. The district court ruled that the government showed a law enforcement purpose covering FSM documents dated before January 19, 1965.
The government asserted two purposes that could have supported the conclusion that all the records in the FSM file, pre- and post-cutoff, were compiled with a law enforcement purpose. The district court found that the FBI investigated whether and to what extent the FSM was influenced by subversive organizations or would be likely to lead to civil disorder. Id. at 1445. The FBI corroborated these two purposes by identifying two individuals in the FSM leadership with communist leanings and indicating the potential for disorder in the demonstrations and civil disobedience occurring at UC Berkeley in 1964. Id.
The district court concluded that the records put in the FSM file from Oсtober 1964 to January 1965 were compiled with a law enforcement purpose. However, the court also concluded that this purpose “disintegrated,” that the FBI invoked it merely as a pretext to pursue routine monitoring, with respect to documents put in the file after January 19, 1965. See id. at 1445, 1448. Neither party contests the court’s finding of a valid law enforcement purpose from October 1964 to January 1965.
We affirm the district court’s ruling because the court did not clearly err in determining that any post-cutoff law enforcement purpose was invoked only as a pretext to monitor the subjects of the FSM investigation. The record contains a January 28, 1965, memorandum showing that the FBI gave information about some of the investigation subjects to a member of the UC Board of Regents at the request of then-CIA Director John McCone. A later memo indicated that the Regent would use the information to “curtail, harass and at times eliminate Communists and ultra liberal members on the faculty.” These documents strongly suggest that the January 28 memo was compiled to harass political opponents of the FBI’s allies among the Regents, not to investigate subversion and civil disorder. They also suggest that by that date the FBI may no longer have had a legitimate purpose to continue its investigation of the FSM subjects. The FSM file also contains many reports compiled after the cutoff date about the activities of Mario Savio, an FSM leader. Read together, the documents admit that the FBI found he had negligible contacts with communists, and suggest the FBI was interested in investigating him for his “contemptuous *811 attitude” instead of Ms possible subversiveness.
The district court found that a January 19, 1965, memorandum, which reported that the FSM and the UC demonstrations were not controlled by commumsts, was the last document in the FSM file to be compiled with a law enforcement purpose. Based on our review of the documents that followed tMs memorandum, we cannot say that the district court clearly erred in determining that tMs was the last document compiled with a rational nexus to a legitimate law enforcement purpose. We affirm the district court’s exemption 7 ruling as to documents compiled directly into the FSM file.
E. Channelized Documents
The last set of documents subject to an exemption 7 challenge are documents cross-filed (channelized) mto the FSM file from other FBI investigatiоn files. The government argues, citing
FBI v. Abramson,
The government did not raise this argument to the district court in its summary judgment motion; it first raised the argument in support of reconsideration of the summary judgment ruling. The district court refused to reconsider because the government failed to show why it could not have presented the argument to the court before summary judgment. The district court did not abuse its discretion in decliMng to consider an argument raised for the first time on reconsideration without a good excuse.
Schanen v. Department of Justice,
V. Exemption 7(C): Information Invading Privacy
The district court ordered the disclosure of some pre-cutoff FSM documents notwithstanding government requests to exempt them under exemption 7(C).
6
See
The government appeals from the district court’s demal of the reconsideration motion. It also asks us to reverse portions of the district court’s ruling m light of
Department of State v. Ray,
Exemption 7(C) requires us to balance the privacy interests of the individuals protected by the nondisclosure against the public interest at stake.
Reporters Comm.,
We agree with the district court that this interest exists here. It certamly serves FOIA’s purpose to disclose publicly records that document whether the FBI abused its law enforcement mandate by over-zealously investigating a political protest *812 movement to which some members of the government then may have objected.
The government argues that the issue here is the extent of the public interest in knowing the identities of the subjects of these documents, not the interest in the other contents of the documents. The government’s point comports with Supreme Court precedent. In
Ray,
7
the Court analyzed the interest in public access to interviews the Department of State conducted with repatriated Haitian refugees. The Department of State conducted these interviews to determine whether Haiti’s government was retaliating аgainst the returnees for having attempted to leave the country.
Ray,
We conclude that this precedent is distinguishable because the public interest in this case may not be served without disclosing the names of the investigation subjects. The public interest in this case is knowing whether and to what extent the FBI investigated individuals for participating in political protests, not federal criminal activity. Disclosing the names of the investigation subjects would make it possiblе to compare the FBI’s investigations to a roster of the FSM’s leadership. Therefore, disclosing the names of investigation subjects promotes the public interest of this FOIA request.
In light of this strong public interest, we consider the government’s arguments about the district court’s weighing of privacy interests. The government first asserts that the district court erred in giving minimal weight to the privacy interests of the subjects of its investigations, contrary to
Reporters Committee
and
Ray.
We find nothing in the record to suggest that the district court made such an error. None of the court’s findings as to the FSM documents denied a 7(C) exemption because the only privacy interest was the interest of an investigated third party in keeping the investigative report confidential.
See
The government alsо argues that the district court erred by concluding that “the passage of time” diminished investigation subjects’ interest in keeping secret the events reported in the investigation. However, having reviewed the specific rulings that the government would have us reverse on this basis, FSM Docs. 42 and 402, we note that this argument incorrectly characterizes the district court’s use of the passage of time. In Doc. 42, the court ordered a police officer’s name disclosed, but not the police unit where he was stationed. Id. at 1450. The court reasoned that “[d]ue to the ... passage *813 of time, it is unlikely that disclosure of the unit would lead to the identity of the officer.” Id. In FSM Doc. 402, the court ordered the disclosure of a party’s name because the name “is only a first name, and a common one at that,” and because “[r]elease would not identify the person, especially given the passage of time.” Id. at 1453.
The district court in each of these cases respected the document subject’s privacy by refusing to order the disclosure of the subject’s name. The court ordered the disclosure of information that might in some circumstances lead to the identity of the person. However, the court found in each case as a matter of fact that the information was not likely to identify the party, in part because it would be impracticable to conduct an identity search more than twenty-five years later. The district court accommodated, not disregarded, the subjects’ privacy.
Last, the government argues that the district court erred by affording less weight to the privacy interests of the subjects of some documents, because those subjects were well-known to have been active in the FSM. The government did not specifically identify for us the documents affected by this alleged error. We presume from our review of the district court’s opinion that the government is appealing from the orders to disclose names in FSM Docs. 42, 342, 352, and 371 on this basis.
See
On this issue, we share the government’s concern that the district court’s characterization of the subjects’ рrivacy interests may be “cramped.”
Reporters Comm.,
We remand the district court’s judgment as to FSM Docs. 42, 342, 352, and 371. The district court should determine whether these documents contain information, relate ing to individuals whose names have been withheld, that exceeds the scope of FSM criminal investigations. We cannot make this determination because it is factual in nature. If the documents have no such information, the district court’s rulings on them may stand. If the documents do contain information unrelated to the FSM, the district court should determine how much release of this information would invade the privacy of individuals whose names have been withheld, and balance this interest against the strong public interest in access tо the individuals’ identities. We affirm the district court’s rulings on exemption 7(C) requests in all other respects.
VI. Exemption 7(D): Information Disclosing Confidential Informants
The Government argues that the court applied incorrect legal standards in evaluating the FBI’s claims of exemption from release of information under 5 U.S.C. § 552(b)(7)(D). That provision permits the government to withhold
records or information compiled for law enforcement purposes, [to the extent those records] could reasonably be expected to disclose the identity of a confidential *814 source ... and, in the ease of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation ... information furnished by a confidential source.
The government bears the burden of establishing the applicability of the exemption.
Department of Justice v. Landano,
— U.S. -, -,
The Government argued in its original briefs to this court that the district court should have applied a presumption of confidentiality to sources that provided information in the course of the FBI investigations. The Supreme Court has since foreclosed this argument. In
Landano,
the Court rejected the view held by the D.C., Second, Seventh, Eighth, and Tenth Circuits that a presumption of confidentiality attaches from the mere fact of an FBI investigation.
See Dow Jones & Co. v. Dep’t of Justice,
Landano
did not affect the application of exemption 7(D) to sources and information covered by an express assurance of confidentiality. We have observed that such an express promise of confidentiality is “virtually unassailable.”
Wiener v. FBI,
The government asserts the district court erred in denying proteсtion to several records over claims of express grants of confidence. It specifically objects to the court’s refusal to treat all symbol numbered sources as protected by express grants of confidentiality. The government argued below, and again on appeal, that symbol numbered sources receive assurances from the FBI that their relationship with the FBI will not be revealed to the public, and therefore qualify as a class for exemption 7(D) protection. The district court apparently concluded otherwise. Although the government reargues the point that in fact these sources were granted express assurances of confidence, it has not pointed to anything in the record that indicates persuasively that all of these sources were “told [their] name[s] would be held in confidence.” Id. We have no basis upon which to disturb the district court’s conclusions. Further, our own review of the individual document rulings indicates that the court observed scrupulously the sanctity of the legitimate claims of express grants of confidence. We discern no error in the court’s treatment of the express confidence claims.
We now turn to the district court’s denial of requests to withhold documents allegedly acquired through implied assurances of confidentiality. The district court rejected the government’s argument that FBI sources inherently qualify for the “implied assurance” protection, and conducted a document-specific and source-specific inquiry. The court’s inquiry comported with Landano’s command to analyze documents individually.
Landano,
— U.S. at -,
VII. Exemption 7(E): Information Likely to Disclose a Law Enforcement Technique
The government appeals from the denial of its sole request under Exemption 7(E), to withhold a portion of FSM Doc. 42.
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The district court denied the request because the law enforcement technique аt issue, a pretext phone call, “would leap to the mind of the most simpleminded investigator.”
We agree with these courts’ reasoning, and adopt it as the law of this Circuit. It would not serve the purposes of FOIA to allow the government to withhold information to keep secret an investigative technique that is routine and generally known. Accordingly, the district court did not err in applying a routine-technique exception to Exemption 7(E). We find no error in the court’s finding that a pretext phone call constitutes an investigative technique generally known to the public.
We are not рersuaded by the government’s argument that the technique at issue is more precise, namely, the use of the identity of a particular individual, Mario Savio, as the pretext. This argument proves too much. If we were to follow such reasoning, the government could withhold information under Exemption 7(E) under any circumstances, no matter how obvious the investigative practice at issue, simply by saying that the “investigative technique” at issue is not the practice but the application of the practice to the particular facts underlying that FOIA request.
VIII. Conclusion
We affirm the district court’s judgment in all respects except the following. We reverse the ruling on Doc. 1 in the Kerr file, and remand the ruling on Doc. 21 in this file for farther consideration in light of section III.C of this opinion. We remand the rulings on FSM Docs. 42, 342, 352, and 371 for proceedings consistent with part IV of this opinion.
AFFIRMED in part, REVERSED in part, and REMANDED.
Notes
. Hereinafter, references to "section" refer to sections in title 5 of the United States Code.
.
See Vaughn v. Rosen,
. The version of Federal Rule of Appellate Procedure 4 in effect in 1991 only allowed a party to file a notice of appeal after the district court had disposed of all pending post-judgment motions.
. Exemption 1 allows the government to withhold "matters that are ... specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and ... are in fact properly classified pursuant to such an Executive order." 5 U.S.C. § 552(b)(1).
Hereinafter, all “exemption” referenсes refer to FOIA exemptions under section 552(b).
. The District of Columbia Circuit’s test for a law enforcement agency’s showing of law enforcement purpose resembles ours closely. If the agency's investigatory activities that give rise to the documents at issue relate to federal law enforcement or national security, "the nexus between the investigation and one of the agency’s law enforcement duties must be based on information sufficient to support at least ‘a colorable claim' of its rationality.”
Pratt,
. Section 552(b)(7)(C) allows the government to withhold documents which are compiled for a law enforcement purpose and which "constitute an unwarranted invasion of privacy."
. The Court applied exemption 6, not exemption 7(C), in Ray. Section 552(b)(6) allows the government to withhold "persоnnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Exemptions 6 and 7(C) both involve balancing public interests against privacy interests, but exemption 6 withholding requests require a showing of a more intrusive invasion of privacy. While exemption 6 cases have limited relevance to exemption 7(C) cases with respect to balancing, they are certainly relevant in describing how to define the interests at stake.
. The government offers only one piece of evidence of the district court’s alleged error. The government asserts that at the hearing on the motion for reconsideration, the court stated, with reference to Reporters Committee, "I don’t very honestly see how that сhanges things." However, this assertion takes the court's statement out of context. The court was speaking to a request by the government for the court to hear the merits of the motion, notwithstanding a serious factual question about whether the government failed to file and serve the motion in a timely manner. The court's comment about the new Supreme Court decision not "chang[ing] things” speaks to the court’s refusal to hear oral argument on the merits of the motion. The court decided on the bench that the new Supreme Court case was not enough reason to grant oral argument when the court normally did not hear argument on reconsideration motions and when there was a possibility that the district court had no jurisdiction to consider the merits.
. Section 552(b)(7)(E) exempts a record from disclosure if it was compiled for law enforcement purposes and would "disclose investigative techniques and procedures."