758 F.Supp. 1021 (D.N.J. 1991), Civ. A. 90-1953, Landano v. United States Dept. of Justice

Docket Nº:Civ. A. 90-1953
Citation:758 F.Supp. 1021
Party Name:Landano v. United States Dept. of Justice
Case Date:February 28, 1991
Court:United States District Courts, 3th Circuit, District of New Jersey

Page 1021

758 F.Supp. 1021 (D.N.J. 1991)

Vincent James LANDANO, Plaintiff,


U.S. DEPT. OF JUSTICE, et al., Defendants.

Civ. A. No. 90-1953.

United States District Court, D. New Jersey.

Feb. 28, 1991

Page 1022

Susan C. Cassel, Office of U.S. Atty., Newark, N.J., for defendants.

Neil Mullin, Smith, Mullin & Kiernan, West Orange, N.J., for plaintiff.


SAROKIN, District Judge.

Defendant Federal Bureau of Investigation ("FBI") moves, pursuant to Fed.R.Civ.P. 59(e), for reconsideration and/or clarification of the court's November 29, 1990 decision and December 13, 1990 order. Defendant also moves for a stay of the court's December 13, 1990 order pending appeal of the court's decision or, in the alternative, for an extension of the time set for the production of documents. For the reasons which follow, this court grants defendant's motion for reconsideration and clarifies its previous opinion as follows:


On its motion for reconsideration, the government presents the following syllogism: (1) all information conveyed to the FBI during the course of a criminal investigation is furnished pursuant to an express or implied promise of confidentiality; (2) based upon such express or implied promise neither the source nor the content of the information received from such source may be disclosed; (3) therefore, all information gathered by the FBI from any source during a criminal investigation is exempt from disclosure under exemption 7(D) of FOIA. Neither the statute nor any binding judicial interpretation of it supports this contention.

A person is a confidential source if she or he provided information under an express assurance of confidentiality or under circumstances from which an assurance of confidentiality could be reasonably inferred. See Lame v. United States Dept. of Justice, 654 F.2d 917, 923 (3d Cir. 1981). Whether such an express or implied assurance of confidentiality was made is a question of fact to be determined in regard to each source. In this Circuit, the per se rule or presumption suggested by the government does not exist. To find as the government contends would totally eviscerate the statute and its policy and purpose. Only if there is a finding supported by competent evidence that a source is confidential does that source and all information provided by it become exempt from the disclosure requirement of FOIA. See Lame, id. The Court is entitled to receive and review detailed information as to each alleged confidential source. The blanket and generic exemption sought by the government is without support and defeats the policy of public exposure which prompted the statute in the first instance.

As to the judicial balancing required under exemption 7(C), the government suggests that "clearing one wrongly convicted" is not of sufficient public interest to even consider whether it warrants an invasion of an informant's right of privacy. By so arguing, the government continues to misconstrue and trivialize what this court has found to be a substantial public interest. As stated in this court's earlier opinion:

Where a person convicted of a serious crime can demonstrate, as petitioner has done here, that the prosecution possessed and concealed information which might have lead to petitioner's acquittal, such person and the public should be entitled to examine that information and the reasons and policies surrounding its concealment. Landano v. Dept. of Justice, 751 F.Supp. 502, 503 (1990) (emphasis added).

The government may believe that a policy of concealing exculpatory information, resulting in wrongful convictions is not a matter of public interest and concern. If so, all the more reason for the subject statute and the need to see beyond the

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government's representations and permit the public to form its own judgments.

Lastly, the court expresses its concern over the potential inconsistencies which could result from the differing approaches for determining whether information may be withheld under exemptions 7(C) or 7(D). Under the current case law, a court may determine that the FOIA-based public interest in disclosure of information outweighs the privacy interests of an individual informant and the extent to which that informant's privacy would be invaded, thus allowing disclosure under exemption 7(C). However, if the informant was a confidential source, the court may be required to uphold the government's nondisclosure of that same information under exemption 7(D). These potential inconsistencies may run contrary to FOIA's overall policy of broad public disclosure.


This dispute arises out of two requests for FBI documents under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., plaintiff's September 30, 1988 request for information on the FBI's investigation of the murder of Police Officer Snow (FOIA Request No. 310265, "Snow Request") and plaintiff's January 10, 1989 request for information on Victor Forni (FOIA Request No. 306424, "Forni Request"). Because a thorough discussion of the history of this case appears in the court's November 29, 1990 opinion, the court will not repeat it here.

In its November 29, 1990 opinion and December 13, 1990 order, this court granted defendant's cross-motion for summary judgment and denied plaintiff's cross-motion for summary judgment with respect to the Snow file as to all FBI symbol source and file numbers, symbol numbers of confidential FBI informants, individual rap sheet information mentioned in defendant's Snow file, names of FBI informants or FBI undercover personnel, and information that could reasonably be expected to reveal the sources of confidential information. The court also denied defendant's cross-motion for summary judgment and granted plaintiff's cross-motion for summary judgment with respect to the Snow file as to the names of witnesses in the Snow investigation, the names of FBI support personnel, and the names of other law enforcement personnel not covered by the court's interpretation of categorical balancing. In light of Mr. Forni's consent to the release of his FBI file, this court also partially granted plaintiff's motion for summary judgment on his Forni request, allowing defendant to redact that file in a manner consistent with the court's opinion respecting the Snow file.


When adjudicating the withholding of information under FOIA, district courts must determine the matter de novo, requiring the defendant to bear the burden of proving that the information not released by defendant comes within a statutory exemption. § 552(a)(4)(B); King v. U.S. Dept. of Justice, 830 F.2d 210, 217 (D.C.Cir. 1987). Courts reviewing FOIA requests must also give effect to the strong presumption in favor of releasing requested documents. I.E.B.W. Local No. 5 v. U.S. Dept. of Housing & Urban Development, 852 F.2d 87, 89 (3d Cir. 1988).

Exemption 7(D)

Defendant argues that this court erred in applying an exemption 7(C)-type balancing test to determine which information may be withheld from plaintiff under exemption 7(D). The court does not agree. In describing in its Summary Judgment brief the material withheld by the FBI under exemption 7(D), the government stated:

The FBI claimed exemption 7(D) pursuant to plaintiff's Snow request to protect sources of information, including information obtained from non-federal law enforcement agencies, identified in the bank robbery investigation. Additionally, the FBI applied exemption 7(D) to information that could reasonably disclose the identity of a source (citations excluded)... Symbol source materials were also withheld under this exemption, as well as information obtained from confidential sources. Defendant's brief in support of summary judgment at 20-21.

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Contrary to defendant's position, this court did not apply an exemption 7(C)-type balancing test to determine what information may be withheld under exemption 7(D). It merely inquired into whether defendant had properly justified the withholding of the information under exemption 7(D).

Under exemption 7(D), information and records are properly exempted from disclosure when disclosure:

... could reasonably be expected to disclose the identity of a confidential source,...

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