811 F.2d 681 (1st Cir. 1987), 86-1446, Irons v. F.B.I.

Docket Nº:86-1446.
Citation:811 F.2d 681
Party Name:Peter IRONS and Melvin Lewis, Plaintiffs, Appellees, v. FEDERAL BUREAU OF INVESTIGATION and Department of Justice, Defendants, Appellants.
Case Date:February 05, 1987
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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811 F.2d 681 (1st Cir. 1987)

Peter IRONS and Melvin Lewis, Plaintiffs, Appellees,



Defendants, Appellants.

No. 86-1446.

United States Court of Appeals, First Circuit

February 5, 1987

Argued Dec. 5, 1986.

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Deborah Ruth Kant, Dept. of Justice, with whom Leonard Schaitman, Dept. of Justice, Richard K. Willard, Asst. Atty. Gen., Washington, D.C., and William F. Weld, U.S. Atty., Boston, Mass., were on brief, for defendants, appellants.

Edward Greer, Cambridge, Mass., with whom Stephanie Levin, Boston, Mass., was on brief, for plaintiffs, appellees.

Before CAMPBELL, Chief Judge, and TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

This case presents a question of novel impression in this circuit: does the willingness of a confidential informant to give trial testimony, if necessary, constitute a blanket waiver of the source's confidentiality so that investigatory records of the Federal Bureau of Investigation (FBI) which might tend to reveal his identity become subject to disclosure under the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552? The district court, favoring a per se rule concerning such potential witnesses, answered this inquiry in the affirmative. We do not agree.


Peter Irons and Melvin Lewis, plaintiffs-appellees, are recognized scholars specializing in the field of legal history. They have been engaged for some time in a research effort directed at the infamous "McCarthy Era," and particularly, prosecutions of the Communist Party and certain of its alleged members under the Smith Act circa 1948-1956. Along the way, the professors served an FOIA request for the files compiled by the FBI in the course of gathering information about the American Communist Party and its membership in the early years of the Cold War. (The legitimacy of the appellees' professed need has not been questioned; the record contains several essentially uncontradicted affidavits which limn how the Smith Act file materials dovetail with the ongoing scholarly work.) In addition, Irons and Lewis sought a waiver of all fees connected with the search and the administrative processing of their request. See 5 U.S.C. Sec. 552(a)(4)(A).

When the expected dispensation was not granted in full, the requestors brought suit in the United States District Court for the District of Massachusetts. On September 28, 1983, the district court ordered the FBI to waive all fees and costs. The requestors and the government soon thereafter docketed a stipulation concerning the order and timing of document production and the prospective compilation of an index. Inasmuch as the files encompassed some 60,000 pages which had to be culled before dissemination, the parties agreed to a phased schedule of releases over time. In the lengthy interval that followed, enormous care was taken both by the requestors (responsibly to trim the scope of their demands) and by the government (to effect due and expeditious compliance with what remained of the FOIA requests).

When roughly half of the documents had been delivered (some in excised form), the appellees noted that, although the disclosure included contemporaneous reports of FBI interviews prepared by Bureau agents, the names of the interviewees and any information fro which their identities could be deduced was often deleted from the reports. In pursuing this course of redaction before release, the FBI relied upon 5 U.S.C. Secs. 552(b)(7)(C) and (D). The relevant text of these exemptions at the time the doctored documents were delivered read as follows:

This section [the FOIA] does not apply to ...

* * *

* * *

(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ... (C) constitute an unwarranted invasion of personal privacy, [or] (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

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conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, ...

5 U.S.C. Sec. 552(b)(7) (West Supp.1985). 1

The requestors were not so easily to be denied. On November 26, 1985, they asked the district court for partial summary judgment rejecting the claimed applicability of the specified exemptions and ordering the defendants (appellants before us) to yield the withheld material. After some intermediate skirmishing, irrelevant for our purposes, the district court, in an ore tenus bench decision, invoked what can aptly be described as a "per se potential witness" rule: it held that the protection for confidential sources afforded by Exemption 7(D) did not warrant masking the identities of informants who had agreed, expressly or by fair implication, to testify if necessary in the Smith Act prosecutions. And, after balancing the generic privacy interests of the informers against the requestors' authentic needs and the perceptible public benefits associated with disclosure, the district judge held that Exemption 7(C) was similarly unavailing. He therefore granted the motion for partial summary judgment and commanded that the documents be supplied in unredacted form. This appeal ensued.


As a threshold matter, we must ascertain whether we have jurisdiction to entertain this appeal here and now. The litigation is not over, so there is no "final judgment" to be reviewed, as the term is usually defined. See 28 U.S.C. Sec. 1291. The appellants argue that the district court's turnover order is in the nature of an injunction, cf. 5 U.S.C. Sec. 552(a)(4)(B) (vesting jurisdiction in the district courts "to enjoin the agency from withholding records and to order the production" of such records), thus immediately appealable under 28 U.S.C. Sec. 1292(a)(1). There is, concededly, respectable authority to that effect. See Miller v. Bell, 661 F.2d 623, 625 (7th Cir.1981) (per curiam), cert. denied, 456 U.S. 960, 102 S.Ct. 2035, 72 L.Ed.2d 484 (1982). Alternatively, the FBI contends that since the district court's release order (i) lays down a broad principle which comprises the law of the case in a consummate fashion, (ii) settles an important point of controlling law, and (iii) will be effectively unreviewable on appeal from final judgment, if complied with (after all, once the identities of the sources are revealed, the ballgame will be over), this situation fits within our collateral order jurisdiction. In re American Colonial Broadcasting Corp., 758 F.2d 794, 803 (1st Cir.1985); see generally Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949).

We need not split fine hairs on this point. Though sister circuits have diverged in choosing the precise rationale which permits them to review FOIA cases at an equivalent stage of the proceedings, compare, e.g., Miller v. Bell, 661 F.2d at 625 (FOIA release order is injunctive in nature; therefore, immediate appellate review is available under 28 U.S.C. Sec. 1292(a)) with Theriault v. United States, 503 F.2d 390, 391-92 (9th Cir.1974) (FOIA release order meets Cohen collateral order standard), all have agreed that appellate jurisdiction vests at the time the turnover order is made.

We concur. To hold otherwise would be to force the government to let the cat out of the bag, without any effective way of recapturing it if the district court's directive was ultimately found to be erroneous. And, as we have noted in the past, the fact that the right asserted is, like this one, essentially incapable of vindication if the aggrieved party must await an appeal from final judgment, "should be the 'central focus' and perhaps even the 'dispositive criterion' of appellate jurisdiction over

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[interlocutory] orders." Boreri v. Fiat S.P.A., 763 F.2d 17, 21 (1st Cir.1985) (quoting In re Continental Investment Corp., 637 F.2d 1, 6-7 (1st Cir.1980)). See also In re Empresas Noroeste, Inc., 806 F.2d 315, 317 (1st Cir.1986); Rodriguez v. Banco Central, 790 F.2d 172, 178 (1st Cir.1986); In re San Juan Star Co., 662 F.2d 108, 112 (1st Cir.1981). Here, irreparable harm would plainly result to the appellants from an inability to obtain precompliance review.

We therefore spurn any suggestion that this appeal is not properly before us.


In our consideration of the merits of this appeal, we turn first to the applicability of Exemption 7(D). At the verge, however, we must confront a preliminary point. The appellees urge us to appraise the district court's conclusion that 7(D) had been waived under a "clearly erroneous" test. The appellants, on the other hand, maintain that the scope of our review, given the circumstances sub judice, is unfettered. We will first establish the appropriate standard for our inquiry and will then proceed to discuss the merits of the claim of exemption under 5 U.S.C. Sec. 552(b)(7)(D).

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