UNITED STATES DEPARTMENT OF JUSTICE, ET AL., PETITIONERS v. VINCENT JAMES LANDANO
No. 91-2054
SUPREME COURT OF THE UNITED STATES
508 U.S. 165; 113 S. Ct. 2014; 124 L. Ed. 2d 84; 1993 U.S. LEXIS 3727; 61 U.S.L.W. 4485; 21 Media L. Rep. 1513; 93 Cal. Daily Op. Service 3778; 93 Daily Journal DAR 6446; 7 Fla. L. Weekly Fed. S 303
February 24, 1993, Argued
May 24, 1993, Decided
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.
956 F. 2d 422, vacated and remanded.
Federal Government held not entitled to presumption that all sources supplying information to FBI in criminal investigation are "confidential" within meaning of Freedom of Information Act exemption (5 USCS 552(b)(7)(D)).
After being convicted in a New Jersey state court for the gang-related murder of a police officer, a person claimed that the prosecution had withheld material exculpatory evidence. Seeking evidence to support this claim, the person filed a request with the Federal Bureau of Investigation (FBI), pursuant to the Freedom of Information Act (FOIA) (5 USCS 552), for information that the FBI had compiled in the course of investigating the murder. The FBI, although releasing much information, redacted some documents and completely withheld others. The requester filed an action in the United States District Court for the District of New Jersey seeking disclosure of the entire contents of the requested files. The FBI claimed that the undisclosed information was subject to various FOIA exemptions, and that some of the information had been withheld pursuant to Exemption 7(D) of the FOIA (5 USCS 552(b)(7)(D)), which exempts from disclosure agency records compiled for law enforcement purposes by criminal law enforcement authority in the course of a criminal investigation if release of those records could reasonably be expected to disclose the identity of, or information provided by, a "confidential source." The District Court, granting summary judgment to the requester, expressed the view that the Federal Government had not articulated sufficient reasons for failing to disclose some of the information withheld under Exemption 7(D) (751 F Supp 502, clarified on reconsideration 758 F Supp 1021). On appeal, the United States Court of Appeals for the Third Circuit, affirming in relevant part, (1) rejected the argument that a presumption of confidentiality arises under Exemption 7(D) as to any source that supplies information to the FBI during a criminal investigation; (2) declined to rule that such a presumption may be based on the subject matter of a particular investigation; and (3) expressed the view that in order to justify withholding information under Exemption 7(D), the Government had to provide detailed explanations relating to each alleged confidential source (956 F2d 422).
On certiorari, the United States Supreme Court vacated the Court of Appeals' judgment and remanded the case for further proceedings. In an opinion by O'Connor, J., expressing the unanimous view of the court, it was held that (1) the Government is not entitled to a presumption that all sources supplying information to the FBI in the course of a criminal investigation are confidential sources within the meaning of Exemption 7(D); (2) a source is deemed confidential, for purposes of Exemption 7(D), if the source furnished information to the FBI with the understanding that the FBI would not divulge the communication except to the extent that the FBI thought necessary for law enforcement purposes; (3) the Government is entitled to presume that an FBI source is confidential where circumstances such as the nature of the crime investigated and the source's relation to the crime support an inference of confidentiality; and (4) it was necessary to vacate and remand, because the Court of Appeals incorrectly concluded that it lacked discretion to rely on such circumstances.
LAWYERS' EDITION HEADNOTES:
[***LEdHN1]
ADMINISTRATIVE LAW §64
Freedom of Information Act -- FBI sources -- presumption of confidentiality --
Headnote:[1A][1B][1C][1D][1E]
For purposes of Exemption 7(D) of the Freedom of Information Act (FOIA) (5 USCS 552(b)(7)(D))--which exempts from disclosure agency records compiled for law enforcement purposes by criminal law enforcement authority in the course of a criminal investigation if release of those records could reasonably be expected to disclose the identity of, or information provided by, a "confidential source"--the Federal Government is not entitled to a presumption that all sources supplying information to the Federal Bureau of Investigation (FBI) in the course of a criminal investigation are confidential sources; it is unreasonable to infer that all FBI criminal investigative sources are confidential for purposes of Exemption 7(D), where (1) although many, or even most, individual sources may expect confidentiality, the Government offers no explanation, other than ease of administration, why that expectation always should be presumed, (2) there is no argument that disclosure of information furnished by other law enforcement agencies ordinarily would affect such agencies adversely, or that the agencies otherwise would be deterred from providing even the most nonsensitive information, (3) the Government's suggestion that private institutions might be subject to possible legal action or loss of business if the cooperation of such institutions with the FBI became publicly known is conclusory, given the wide variety of information that such institutions may be asked to provide, (4) the proposed presumption is in practice all but irrebuttable, (5) Exemption 7(D)'s "could reasonably be expected to" language does not support the proposed presumption, and (6) the Government offers no persuasive evidence that Congress intended to create a blanket FOIA exemption for the FBI.
[***LEdHN2]
ADMINISTRATIVE LAW §64
Freedom of Information Act -- FBI sources -- degree of confidentiality --
Headnote:[2A][2B]
For purposes of Exemption 7(D) of the Freedom of Information Act (FOIA) (5 USCS 552(b)(7)(D))--which exempts from disclosure agency records compiled for law enforcement purposes by criminal law enforcement authority in the course of a criminal investigation if release of those records could reasonably be expected to disclose the identity of, or information provided by, a "confidential source"--the word "confidential" refers to a degree of confidentiality less than total secrecy, and thus a source is deemed confidential if the source furnished information to the Federal Bureau of Investigation (FBI) with the understanding that the FBI would not divulge the communication except to the extent that the FBI thought necessary for law enforcement purposes; it cannot have been Congress' intent that a source is confidential for purposes of Exemption 7(D) only if the source can be assured, explicitly or impliedly, that the source's cooperation with the FBI will be disclosed to no one, since (1) the FOIA does not define the word "confidential," (2) in common usage, confidentiality is not limited to complete anonymity or secrecy, (3) a promise of complete secrecy would mean that the FBI agent receiving the source's information could not share such information even with other FBI personnel, (4) Congress, when adopting Exemption 7(D), was presumably aware of the Federal Government's disclosure obligations under Brady v Maryland, 373 US 83, 10 L Ed 2d 215, 83 S Ct 1194, and applicable procedural rules, and also must have realized that some FBI witnesses would testify at trial, and (5) at the time that an interview is conducted, neither the source nor the FBI agent ordinarily knows whether the communication will be disclosed.
[***LEdHN3]
ADMINISTRATIVE LAW §64
Freedom of Information Act -- FBI sources -- presumption of confidentiality --
Headnote:[3A][3B][3C][3D]
Under Exemption 7(D) of the Freedom of Information Act (FOIA) (5 USCS 552(b)(7)(D))--which exempts from disclosure agency records compiled for law enforcement purposes by criminal law enforcement authority in the course of a criminal investigation if release of those records could reasonably be expected to disclose the identity of, or information provided by, a "confidential source"--the Federal Government is entitled to presume that a source who provided information to the Federal Bureau of Investigation (FBI) is confidential--that is, that the source cooperated with the FBI with an implied assurance of confidentiality--where circumstances such as the nature of the crime investigated and the source's relation to the crime support an inference of confidentiality; such a particularized approach is consistent with Congress' intent to provide workable rules of FOIA disclosure.
[***LEdHN4]
APPEAL §1692.3
remand -- misconception as to law -- Freedom of Information Act --
Headnote:[4A][4B][4C]
On certiorari to review a United States Court of Appeals decision which held that the Federal Bureau of Investigation (FBI) could not properly withhold, from a person convicted of a gang-related murder, information compiled by the FBI in connection with the murder investigation insofar as the FBI relied on Exemption 7(D) of the Freedom of Information Act (5 USCS 552(b)(7)(D))--which exempts from disclosure agency records compiled for law enforcement purposes by criminal law enforcement authority in the course of a criminal investigation if release of those records could reasonably be expected to disclose the identity of, or information provided by, a "confidential source"--the United States Supreme Court will vacate the Court of Appeals' judgment and remand the case for further proceedings, where (1) the Supreme Court holds that (a) the Federal Government is entitled to a presumption of confidentiality, for purposes of Exemption 7(D), where circumstances such as the nature of the crime investigated and the witness' relation to the crime support an inference of confidentiality, and (b) the Court of Appeals incorrectly concluded that it lacked discretion to rely on such circumstances; and (2) the Supreme Court observes that most people would think that witnesses to a gang-related murder likely would be unwilling to speak to the FBI except on the condition of confidentiality.
[***LEdHN5]
ADMINISTRATIVE LAW §64
Freedom of Information Act -- confidential sources -- criminal investigation --
Headnote:[5]
In determining the applicability of Exemption 7(D) of the Freedom of Information Act (5 USCS 552(b)(7)(D))--which exempts from disclosure agency records compiled for law enforcement purposes by criminal law enforcement authority in the course of a criminal investigation if release of those records could reasonably be expected to disclose the identity of, or information provided by, a "confidential source"--the question is not whether the requested document is of the type that the agency usually treats as confidential, but whether the particular source spoke with an understanding that the communication would remain confidential.
[***LEdHN6]
ADMINISTRATIVE LAW §64
Freedom of Information Act -- confidential sources -- FBI informants --
Headnote:[6]
For purposes of Exemption 7(D) of the Freedom of Information Act (5 USCS 552(b)(7)(D))--which exempts from disclosure agency records compiled for law enforcement purposes by criminal law enforcement authority in the course of a criminal investigation if release of those records could reasonably be expected to disclose the identity of, or information provided by, a confidential source--it is reasonable to infer that paid informants normally expect their cooperation with the FBI to be kept confidential, and that such informants receive an implied assurance of confidentiality; such an inference is justified by (1) the nature of the informant's ongoing relationship with the FBI, and (2) the fact that the FBI typically communicates with informants only at locations and under conditions which assure that the contact will not be noticed.
[***LEdHN7]
ADMINISTRATIVE LAW §64
COURTS §153
Freedom of Information Act -- FBI sources -- confidentiality -- prophylactic rule --
Headnote:[7]
Although a prophylactic rule protecting the identities of all criminal investigative sources of the Federal Bureau of Investigation (FBI) would serve the Federal Government's objectives and would be simple for the FBI and the courts to administer, the United States Supreme Court is not free to engraft such a policy choice onto the statute that Congress passed, that is, Exemption 7(D) of the Freedom of Information Act (5 USCS 552(b)(7)(D)), which exempts from disclosure agency records compiled for law enforcement purposes by criminal law enforcement authority in the course of a criminal investigation if release of those records could reasonably be expected to disclose the identity of, or information provided by, a "confidential source."
[***LEdHN8]
STATUTES §207
narrow construction --
Headnote:[8]
Exemptions from disclosure set forth in the Freedom of Information Act (5 USCS 552) must be construed narrowly in favor of disclosure.
SYLLABUS: Respondent Landano was convicted in New Jersey state court for murdering a police officer during what may have been a gang-related robbery. In an effort to support his claim in subsequent state-court proceedings that the prosecution violated Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, by withholding material exculpatory evidence, he filed Freedom of Information Act (FOIA) requests with the Federal Bureau of Investigation (FBI) for information it had compiled in connection with the murder investigation. When the FBI redacted some documents and withheld others, Landano filed this action in the Federal District Court, seeking disclosure of the requested files' contents. The FBI claimed that it withheld the information under Exemption 7(D), which exempts agency records compiled for law enforcement purposes by law enforcement authorities in the course of a criminal investigation if the records' release "could reasonably be expected to disclose" the identity of, or information provided by, a "confidential source." The court held that the FBI had to articulate case-specific reasons for nondisclosure of information given by anyone other than a regular informant, and the Court of Appeals affirmed in relevant part. It held that a source is confidential if there has been an explicit assurance of confidentiality or circumstances from which such an assurance could reasonably be inferred. However, it rejected the Government's argument that a presumption of confidentiality arises whenever any individual or institutional source supplies information to the FBI during a criminal investigation and declined to rule that a presumption may be based on the particular investigation's subject matter. Rather, it held that, to justify withholding under Exemption 7(D), the Government had to provide detailed explanations relating to each alleged confidential source.
Held:
1. The Government is not entitled to a presumption that all sources supplying information to the FBI in the course of a criminal investigation are confidential sources within the meaning of Exemption 7(D). Pp. 171-178.
(a) A source should be deemed "confidential" if the source furnished information with the understanding that the FBI would not divulge the communication except to the extent it thought necessary for law enforcement purposes. Contrary to respondent's position, Congress could not have intended to limit the exemption to only those sources who are promised complete anonymity or secrecy, because at the time an interview is conducted, neither a source nor the FBI ordinarily knows whether a communication will need to be disclosed. Pp. 173-174.
(b) Nonetheless, the presumption for which the Government argues in this case is unwarranted, because it does not comport with common sense and probability. During the course of a criminal investigation, the FBI collects diverse information, ranging from the extremely sensitive to the routine, from a variety of individual and institutional sources. While most individual sources may expect confidentiality, the Government offers no explanation, other than administrative ease, why that expectation always should be presumed. The justifications for presuming the confidentiality of all institutional sources are even less persuasive, given the wide variety of information that such sources are asked to give. Considerations of fairness also counsel against the Government's rule. Its presumption is, in practice, all but irrebuttable, because a requester without knowledge about the particular source or the withheld information will very rarely be in a position to offer persuasive evidence that the source had no interest in confidentiality. While Exemption 7(D)'s "could reasonably be expected to" language and this Court's decision in Department of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 103 L. Ed. 2d 774, 109 S. Ct. 1468, may support some inferences of confidentiality, they do not support the presumption that all FBI criminal investigative sources are exempt. Nor does the FOIA's legislative history indicate that Congress intended to create such a rule. Pp. 174-178.
2. Some narrowly defined circumstances can provide a basis for inferring confidentiality. For example, it is reasonable to infer that paid informants normally expect their cooperation with the FBI to be kept confidential. Similarly, the character of the crime at issue and the source's relation to the crime may be relevant to determining whether a source cooperated with the FBI with an implied assurance of confidentiality. Most people would think that witnesses to a gang-related murder likely would be unwilling to speak to the FBI except under such conditions. The Court of Appeals erred in declining to rely on such circumstances. This more particularized approach is consistent with Congress' intent to provide workable FOIA disclosure rules. And when a document containing confidential source information is requested, it is generally possible to establish the nature of the crime and the source's relation to it. Thus, the requester will have a more realistic opportunity to develop an argument that the circumstances do not support an inference of confidentiality. To the extent that the Government's proof may compromise legitimate interests, the Government still can attempt to meet its burden with in camera affidavits. Pp. 179-180.
COUNSEL:John F. Daly argued the cause for petitioners. With him on the briefs were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Roberts, Acting Solicitor General Bryson, Edwin S. Kneedler, and Leonard Schaitman.
Neil Mullin argued the cause for respondent. With him on the brief were Nancy Erika Smith, Eric R. Neisser, and Alan B. Morrison.
JUDGES: O'CONNOR, J., delivered the opinion for a unanimous Court.
OPINIONBY: O'CONNOR
OPINION:[*167][***91][**2017] JUSTICE O'CONNOR delivered the opinion of the Court.
[***LEdHR1A] [1A][***LEdHR2A] [2A][***LEdHR3A] [3A][***LEdHR4A] [4A]Exemption 7(D) of the Freedom of Information Act, 5 U.S.C. § 552 (FOIA), exempts from disclosure agency records "compiled for law enforcement purposes . . . by criminal law enforcement authority in the course of a criminal investigation" if release of those records "could reasonably be expected to disclose" the identity of, or information provided by, a "confidential source." § 552(b)(7)(D). This case concerns the evidentiary showing that the Government must make to establish that a source is "confidential" within the meaning of Exemption 7(D). We are asked to decide whether the Government is entitled to a presumption that all sources supplying information to the Federal Bureau of Investigation (FBI or Bureau) in the course of a criminal investigation are confidential sources.
I
Respondent Vincent Landano was convicted in New Jersey state court for murdering Newark, New Jersey, police officer John Snow in the course of a robbery. The crime received considerable media attention. Evidence at trial showed that the robbery had been orchestrated by Victor Forni and a motorcycle gang known as "the Breed." There [*168] was testimony that Landano, though not a Breed member, had been recruited for the job. Landano always has maintained that he did not participate in the robbery and that Forni, [***92] not he, killed Officer Snow. He contends that the prosecution withheld material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963).