956 F.2d 422 (3rd Cir. 1992), 91-5161, Landano v. United States Dept. of Justice

Docket Nº:91-5161.
Citation:956 F.2d 422
Party Name:Vincent James LANDANO v. UNITED STATES DEPARTMENT OF JUSTICE; the Federal Bureau of Investigation, Appellants.
Case Date:February 11, 1992
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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956 F.2d 422 (3rd Cir. 1992)

Vincent James LANDANO



Investigation, Appellants.

No. 91-5161.

United States Court of Appeals, Third Circuit

February 11, 1992

Argued May 20, 1991.

As Amended Feb. 24, 1992.

On Petition for Rehearing April 14, 1992.

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Stuart M. Gerson, Asst. Atty. Gen., Michael Chertoff, U.S. Atty., Susan C. Cassell, Asst. U.S. Atty., and Leonard Schaitman, John F. Daly (argued), Attys., Appellate Staff, Dept. of Justice, Civ. Div., Washington, D.C., for appellants.

Neil M. Mullin (argued), Smith, Mullin & Kiernan, P.C., West Orange, N.J., for appellee.

Before STAPLETON, SCIRICA and ALDISERT, Circuit Judges.


STAPLETON, Circuit Judge:

In this appeal, we focus on Exemptions 7(C) and 7(D) to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(b)(7)(C)-(D). These exemptions are at the center of a dispute between plaintiff-appellee Vincent Landano and defendants-appellants the Federal Bureau of Investigation and Department of Justice (collectively the "FBI") over Landano's request under the FOIA for documents relating to the 1976 murder of a police officer. Landano was convicted for that murder in a New Jersey state court. The district court granted summary judgment to Landano and ordered the FBI to release information that it had withheld as exempt. The FBI has appealed. We will affirm in part, reverse in part, and remand.

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On August 13, 1976, two gunmen robbed the Hi-Way Check Cashing Service in Kearney, New Jersey. During the course of the robbery, one of the two men shot and killed a police officer, John Snow. The FBI was involved, as were New Jersey state law enforcement officials, in the investigation of the murder. A state grand jury indicted Landano for felony murder, and he was convicted. Landano has always maintained that he did not participate in the robbery and that a man named Victor Forni was the killer of Officer Snow.

Landano attacked his conviction in a federal habeas corpus proceeding asserting that the state prosecutors violated the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by suppressing exculpatory evidence. The United States District Court for the District of New Jersey found merit in this argument and ordered that Landano be retried or released. This court reversed because Landano had not exhausted his state remedies. Landano v. Rafferty, 897 F.2d 661 (3d Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 46, 112 L.Ed.2d 23 (1990). Landano is apparently pursuing that claim at present in the New Jersey state court system.

Landano has simultaneously sought to obtain FBI files under the FOIA in the hope that they will contain exculpatory evidence or lead to the discovery of such evidence. Landano first sent a letter to the FBI's Newark field office requesting all information pertaining to the murder of Officer Snow. In response, the FBI provided 324 pages of a 726-page file, some of which were redacted. Thereafter, Landano sent the FBI a request for all information on Victor Forni. The FBI released only a portion of that file as well. As to the information in the Snow and the Forni files at issue here, the FBI contended that the release of some of the information would violate the privacy rights of individuals named in those files and that the release of other information would violate confidentiality expressly or impliedly promised by the FBI to persons from whom the FBI received information in the course of its investigation.

After exhausting his administrative appeals, Landano initiated this proceeding in the district court requesting that the court order the FBI to produce the entire contents of the requested files. The FBI submitted an affidavit of FBI Special Agent Regina Superneau detailing its reasons for withholding information under Exemptions 7(C) and 7(D), as well as under other exemptions not at issue here. The court granted summary judgment to Landano and ordered the FBI to release essentially all of the withheld material other than information that would disclose the identity of, or communications from, informants or undercover agents.


The FOIA, which is a part of the Administrative Procedure Act, requires that any federal agency promptly make available any records requested of it by any person so long as the request "reasonably describes such records." 5 U.S.C. § 552(a)(3). If an agency improperly withholds such documents, a federal district court may order production. Congress has exempted nine important categories of information from this blanket requirement, however. In this case, we are concerned with Exemption 7(C) and Exemption 7(D).

  1. Exemption 7(C).

    We first consider Exemption 7(C). Exemption 7(C) exempts from disclosure "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). If the agency invokes Exemption 7(C), it has the burden "to sustain its action." Id. § 552(a)(4)(B).

    An agency's invocation of Exemption 7(C) requires us to identify the privacy interests that would be affected by release of the requested information as well as the public interests that would be served by disclosure. After identifying the competing

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    interests we are then called upon to balance those interests to determine if disclosure is appropriate, i.e., whether disclosure "could reasonably be expected to constitute an unwarranted invasion of personal privacy." § 552(b)(7)(C) (emphasis supplied). See United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989).

    Landano does not dispute the right of the FBI to withhold the names of FBI undercover agents or FBI informants. We are concerned here with: (1) the names of other FBI employees that appear in the requested documents; (2) the names of the persons interviewed during the investigation; (3) the names of third parties mentioned by those interviewed; and (4) the identities of state and local law enforcement personnel who participated in the investigation. Thus, our Exemption 7(C) analysis is concerned solely with the failure to disclose the identity of individuals who were involved in the investigation or in the events with which the investigation was concerned.

    1. Privacy Interests

      The district court held that the FBI had not made an adequate showing that disclosure of the information withheld under Exemption 7(C) would implicate anyone's privacy interest. In its words, the "defendant offers nothing to convince the court that the dangers involved in releasing such information exist in this particular case, particularly in view of the approximately 14 years which have elapsed since the underlying investigation." Landano v. United States Dep't of Justice, 751 F.Supp. 502, 508 (D.N.J.1990). We do not agree.

      Numerous courts of appeals have recognized that individuals involved in a criminal investigation--including suspects, witnesses, interviewees, and investigators--possess privacy interests, cognizable under Exemption 7(C), in not having their names revealed in connection with disclosure of the fact and subject matter of the investigation. See, e.g., Safecard Services, Inc. v. SEC, 926 F.2d 1197, 1205 (D.C.Cir.1991) ("suspects, witnesses and investigators" have privacy interests implicated by release of their names in connection with a criminal investigation); KTVY-TV v. United States, 919 F.2d 1465, 1469 (10th Cir.1990) (witnesses and persons named by them have privacy interests). Suspects of the investigation have the most obvious privacy interest in not having their identities so revealed. Baez v. United States Dep't of Justice, 647 F.2d 1328, 1338 (D.C.Cir.1980). However, disclosure of the names of interviewees and witnesses may result in embarrassment and harassment to them as well. Criminal investigations turn up a myriad of details about the personal lives of witnesses and interviewees and for some, disclosure of the fact of cooperation with the investigation may itself result in reprisals or strained personal relationships. Moreover, as this case demonstrates, many people may have reason to seek out and question those who have supplied information in the course of a criminal investigation. See, e.g., Halloran v. Veterans Admin., 874 F.2d 315, 321 (5th Cir.1989), ("many of the nonsuspects who are identified or referred to in the transcripts have discernible privacy interests in not having their thoughts, comments, and views regarding their work, their job performance, and their co-workers, clients, and friends released to the public. Moreover, merely being associated with a criminal investigation may lead to further embarrassment and difficulties."); Cleary v. FBI, 811 F.2d 421, 424 (8th Cir.1987) (recognizing privacy interests in avoiding "unnecessary questioning concerning the investigation [and] subpoenas issued by private litigants in civil suits incidentally related to the investigation," although conceding that these privacy interests may be overborne by greater public interests).

      Moreover, this court has held that even the law enforcement personnel involved in a criminal investigation have a privacy interest, cognizable under Exemption 7(C), in not having their identities disclosed. In Patterson by Patterson v. FBI, 893 F.2d 595, 601 (3d Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 48, 112 L.Ed.2d 24 (1990),

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      we concluded that the FBI acted properly in withholding under Exemption 7(C) the names of the FBI personnel who had...

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