749 F.2d 58 (D.C. Cir. 1984), 84-5084, Shaw v. F.B.I.

Docket Nº:84-5084.
Citation:749 F.2d 58
Party Name:J. Gary SHAW v. FEDERAL BUREAU OF INVESTIGATION, Appellant.
Case Date:December 05, 1984
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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749 F.2d 58 (D.C. Cir. 1984)

J. Gary SHAW

v.

FEDERAL BUREAU OF INVESTIGATION, Appellant.

No. 84-5084.

United States Court of Appeals, District of Columbia Circuit

December 5, 1984

Argued Oct. 31, 1984.

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Miriam M. Nisbet, Washington, D.C., of the Bar of the Supreme Court of North Carolina, pro hac vice by special leave of the Court, with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellant.

James H. Lesar, Washington, D.C., for appellee.

Before WILKEY, WALD and SCALIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge SCALIA.

SCALIA, Circuit Judge:

This case involves a challenge to the Federal Bureau of Investigation's refusal to disclose, in response to a request under the Freedom of Information Act, 5 U.S.C. Sec. 552 (1982) ("FOIA"), ten photographs it had obtained from a non-federal law enforcement agency. The FBI justified the withholding under FOIA Exemption 7(D), 5 U.S.C. Sec. 552(b)(7)(D). The case raises issues of the meaning in Exemption 7(D) of the phrase "confidential information furnished only by [a] confidential source"; the showing that must be made to establish that a document is, within the meaning of that exemption, a "record compiled by a criminal law enforcement authority in the course of a criminal investigation"; and qualification under that provision of an authorized federal investigation into a state crime.

I

On October 24, 1979, J. Gary Shaw made a formal request to the FBI under FOIA for copies of photographs of participants in an event called the Quebec-Washington-Guantanamo Walk for Peace. The photographs are attached to an FBI memorandum dealing with allegations that Lee Harvey Oswald was in Montreal during the summer of 1963. The Bureau denied Shaw's request on grounds that the information was classified pursuant to Executive Order No. 12,065 and therefore privileged from disclosure under FOIA Exemption 1, 5 U.S.C. Sec. 552(b)(1). Shaw took an administrative appeal, and the Department of Justice affirmed the denial on March 31, 1980. In October 1981 the photographs were declassified in connection with the administrative appeal of another requester, but were not disclosed to Shaw. On March 16, 1982, Shaw sued to compel production, under FOIA, 5 U.S.C. Sec. 552(a)(4)(B), in the United States District Court for the District of Columbia. The FBI moved for summary judgment on grounds that although the photographs were no longer classified they were properly withheld under FOIA Exemption 7(D), 5 U.S.C. Sec. 552(b)(7)(D).

On January 13, 1983, after an in camera inspection of the relevant records, the District Court issued an Order with accompanying Memorandum denying summary judgment and requiring the FBI to disclose the photographs on grounds that it had failed to show they were obtained in the course of a criminal investigation. On November 9, 1983, after examining a supplemental affidavit submitted by the FBI in support of its motion for reconsideration,

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the court issued an Order denying the motion, on grounds that although the supplemental affidavit might be sufficient to establish that the photographs were obtained in the course of a criminal investigation, they did not constitute confidential information. The FBI has appealed to this court under 28 U.S.C. Sec. 1291 (1982).

II

Exemption 7(D) reads in its totality as follows:

[This section does not apply to matters that are--]

(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ... (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, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source....

5 U.S.C. Sec. 552(b)(7). The judicial review provisions of the FOIA provide that "the burden is on the agency to sustain its action," 5 U.S.C. Sec. 552(a)(4)(B), which of course includes establishing the availability of an exemption from disclosure, see, e.g., Exxon Corp. v. FTC, 663 F.2d 120, 127 (D.C.Cir.1980). It is uncontested that burden was met here except in the respects discussed below.

We turn first to the District Court's holding that the photographs do not constitute "confidential information" within the meaning of this provision. This appears to rest primarily on grounds that photographs taken outdoors of individuals participating in a public demonstration cannot constitute confidential information but are by their very nature public. Shaw v. FBI, Civil No. 82-0756, Order at 2 (D.D.C. Nov. 9, 1983) ("Order").

"Nonpublic" or "secret" is certainly one of the meanings that the word "confidential" may bear. But it may also mean "provided in confidence"--i.e., provided with the assurance that it will not be disclosed to others. Even if the former meaning were accepted here, we would have some doubt whether the District Court's decision could be sustained, since the mere fact that an event occurred in public does not make it "public" in the relevant sense of...

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