508 U.S. 165 (1993), 91-2054, Department of Justice v. Landano

Docket Nº:No. 91-2054
Citation:508 U.S. 165, 113 S.Ct. 2014, 124 L.Ed.2d 84, 61 U.S.L.W. 4485
Party Name:Department of Justice v. Landano
Case Date:May 24, 1993
Court:United States Supreme Court

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508 U.S. 165 (1993)

113 S.Ct. 2014, 124 L.Ed.2d 84, 61 U.S.L.W. 4485

Department of Justice



No. 91-2054

United States Supreme Court

May 24, 1993

Argued Feb. 24, 1993


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, 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 [113 S.Ct. 2016] 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.


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

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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 United States Dept. of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 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

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proof may compromise legitimate interests, the Government still can attempt to meet its burden with in camera affidavits. Pp. 179-180.

956 F.2d 422 (CA3 1992), vacated and remanded.

O'CONNOR, J., delivered the opinion for a unanimous Court.

O'CONNOR, J., lead opinion

JUSTICE O'CONNOR delivered the opinion of the Court.

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.

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

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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, not he, killed Officer Snow. He contends that the prosecution withheld material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).

Although his efforts to obtain state postconviction and federal habeas relief thus far have proved unsuccessful, see Landano v. Rafferty, 897 F.2d 661 (CA3), cert. denied, 498 U.S. 811 (1990); Landano v. Rafferty, 856 F.2d 569 (CA3 1988), cert. denied, 489 U.S. 1014 (1989); State v. Landano, 97 N.J. 620, 483 A.2d 153 (1984), Landano apparently is currently pursuing a Brady claim in the state courts, see Landano v. Rafferty, 970 F.2d 1230, 1233-1237 (CA3), cert. denied, 506 U.S. 955 (1992); Brief for Petitioners 3, n. 1. Seeking evidence to support that claim, Landano filed FOIA requests with the FBI for information that the Bureau had compiled in the course of its involvement in the investigation of Officer Snow's murder. Landano sought release of the Bureau's files on both Officer Snow and Forni. The FBI released several hundred pages of documents. The Bureau redacted some of these, however, and withheld several hundred other pages altogether.

[113 S.Ct. 2018] Landano 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. In response, the Government submitted a declaration of FBI Special Agent Regina Superneau explaining the Bureau's reasons for withholding portions of the files. The information withheld under Exemption 7(D) included information provided by five types of sources: regular FBI informants; individual witnesses who were not regular informants; state and local law enforcement agencies; other local agencies; and private financial and commercial institutions. Superneau Declaration, App. 28. Agent Superneau explained why, in the Government's view, all such sources should be presumed confidential.

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The deleted portions of the files were coded to indicate which type of source each involved. The Bureau provided no other information about the withheld materials. Id. at 33-41.

On cross-motions for summary judgment, the District Court largely rejected the Government's categorical explanations. See 751 F.Supp. 502 (NJ 1990), clarified on reconsideration, 758 F.Supp. 1021 (NJ 1991). There was no dispute that the undisclosed portions of the Snow and Forni files constituted records or information compiled for law enforcement purposes by criminal law enforcement authority in the course of a criminal investigation. The District Court concluded, however, that the Government had not met its burden of establishing that each withheld document reasonably could be expected to disclose the identity of, or information provided by, a "confidential source." Although the court evidently was willing to assume that regular FBI informants were confidential...

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