Billington v. U.S. Dept. of Justice

• Citation: 233 F.3d 581
• Decision Date: 01 December 2000
• Docket Number: No. 99-5402,99-5402
• Parties: (D.C. Cir. 2000) Gail G. Billington, Appellant v. U.S. Department of Justice, Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 581

233 F.3d 581 (D.C. Cir. 2000)

Gail G. Billington, Appellant v. U.S. Department of Justice, Appellee

No. 99-5402

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Submitted October 16, 2000

Decided December 1, 2000

Appeal from the United States District Court for the District of Columbia(92cv00462)

Gail G. Billington, appearing pro se, was on the briefs for appellant.

Wilma A. Lewis, U.S. Attorney, R. Craig Lawrence and Scott S. Harris, Assistant U.S. Attorneys, were on the brief for appellee.

Before: Williams, Randolph, and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge:

Gail Billington's efforts to pry loose information from the Department of Justice are chronicled in the two lower court opinions that preceded this appeal. See Billington v. Department of Justice, 11 F. Supp. 2d 45 (D.D.C. 1998) (Billington I), and Billington v. Department of Justice, 69 F. Supp. 2d 128 (D.D.C. 1999) (Billington II). In brief, Gail Billington and her husband Michael were members of the National Caucus of Labor Committees (NCLC), a political organization founded by Lyndon LaRouche in the 1960s. Mr. Billington and other members were prosecuted and convicted in the 1980s for fund-raising irregularities. In 1991 and 1992, Gail Billington filed several Freedom of Information Act (FOIA) requests with the Federal Bureau of Investigation seeking information relating to the federal and state investigations of the NCLC. She believes this information will exculpate her husband and other convicted NCLC members. The FBI withheld some responsive documents in full and released others in redacted form, citing exemptions 1, 2, 3, 5, 6, 7(C), 7(D), and 7(E) to FOIA. See 5 U.S.C. § 552(b)(1)-(7). Billington challenged several of those claims of exemption in this suit.¹

The district court divided the case into two stages, the first to consider all documents but those contained in four FBI "Internal Security" files and the second to consider documents from those four files. In Billington I, the court upheld all of the government's withholdings and redactions under exemptions 1, 2, 3, and 5 to FOIA. It upheld most of the government's exemption 7(C) withholdings, but ordered the government to reevaluate withholdings relating to a deceased individual and to information that had previously been disclosed to another FOIA requester. The court also upheld most of the government's exemption 7(D) withholdings, but ordered the FBI to provide a supplemental affidavit justifying redactions concerning entities that received, rather than provided, information on a confidential basis. The court also found a State Department declaration justifying exemption 6 withholdings insufficient and ordered an in camera review of the documents. See 11 F. Supp. 2d 45 (D.D.C. 1998).

In Billington II, the district court upheld the government's withholdings under exemptions 1, 2, 7(C), 7(D), and 7(E), including some withholdings it had questioned in Billington I. See 69 F. Supp. 2d 128 (D.D.C. 1999).

On appeal, Billington challenges certain of the government's exemption 6,² 7(C), 7(D), and 7(E)³ withholdings. She also challenges the sufficiency of one Internal Revenue Service declaration and the propriety of the district court reviewing another in camera. We have nothing to add to the district court's sound reasoning with respect to the government's withholding parts or all of documents under exemptions 7(C) and 7(E), and therefore reject this portion of Billington's appeal substantially for the reasons given by the district court. Of the remaining issues we reverse and remand (with one exception, see note 5 infra) for the reasons given in the balance of this opinion.

I.

FOIA requires the government to disclose, upon request, broad classes of documents identified in 5 U.S.C. § 552(a). It exempts from disclosure nine categories of documents described in 5 U.S.C. § 552(b). The government is entitled to summary judgment if no material facts are in dispute and if it demonstrates either that withheld or redacted documents are not required to be disclosed under § 552(a) or are exempt from disclosure under § 552(b). See, e.g., Computer Professionals for Social Responsibility v. United States Secret Serv., 72 F.3d 897, 902 (D.C. Cir. 1996); Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994). We review the district court's grant of summary judgment de novo. See Spirko v. United States Postal Serv., 147 F.3d 992, 998 (D.C. Cir. 1998);Nation Magazine v. United States Customs Serv., 71 F.3d 885, 889 (D.C. Cir. 1995).

A.

The government withheld or redacted numerous documents under exemption 7(D), which protects law enforcement information obtained from sources who received an express or implied assurance of confidentiality. See Campbell v. United States Dep't of Justice, 164 F.3d 20, 34 (D.C. Cir. 1998). The question posed in exemption 7(D) cases "is not whether the requested document is of the type that the agency usually treats as confidential, but whether the particular source spoke with an understanding that the communication would remain confidential." United States Dep't of Justice v. Landano, 508 U.S. 165, 172 (1993). Landano rejected the government's suggestion that assurances of confidentiality are "inherently implicit" when somebody provides information to a federal law enforcement agency. See 508 U.S. at 174-78.

In this case, the government's justifications for withholding or redacting certain documents under exemption 7(D) fall short of the particularized justification Landano requires.The government's declarations do not sufficiently detail certain express assurances of confidentiality and do not adequately explain implied assurances of confidentiality for information received after 1977.

The government employed a coding system to correlate claims of exemption on responsive documents to the justifications in its declarations. It identified seven exemption 7(D) categories using the notations (b)(7)(D)-1, (b)(7)(D)-2, and so on through (b)(7)(D)-7. See Joint Appendix 43-44. Billington challenges four of these categories: (b)(7)(D)-3 ("name and information provided by source with an expressed promise of confidentiality"), (b)(7)(D)-4 ("name, identifying data and information provided with an implied promise of confidentiality"), (b)(7)(D)-5 ("information provided by non-federal law enforcement agencies under an implied promise of confidentiality"), and (b)(7)(D)-7 ("name of a foreign government agency who has an expressed promise of confidentiality").See Joint Appendix 43-44.

The government's declarations justifying exemptions coded (b)(7)(D)-3 do not "present 'probative evidence that the source did in fact receive an express grant of confidentiality'."See Campbell v. United States Dep't of Justice, 164 F.3d 20, 34 (D.C. Cir. 1998). The FBI's August 29, 1997, declarations supporting the (b)(7)(D)-3 redactions state that "this information was received with the explicit understanding that it would be held in the strictest confidence. It is obvious from the released information that these sources warrant confidentiality." Joint Appendix 55. This may be obvious to the affiant, but it is not obvious to us. This bald assertion that express assurances were given amounts to little more than recitation of the statutory standard, which we have held is insufficient. See Campbell, 164 F.3d at 30 ("the affidavits must show, with reasonable specificity, why the documents fall within the exemption. The affidavits will not suffice if the agency's claims are conclusory, merely reciting statutory standards, or if they are too vague or sweeping."); King v. United States Dep't of Justice, 830 F.2d 210, 219 (D.C. Cir. 1987). The declaration goes on to state that "the manner in which the FBI actually obtains information from these sources is also demonstrative of the express promise of confidentiality under which it was received. The information is often received at times and at locations which guarantee the contact will not be noticed." Joint Appendix 56. The circumstances under which the FBI receives information might support a finding of an implied assurance of confidentiality, but they do not demonstrate the oral or written act required for an express assurance of confidentiality. Cf. Landano, 508 U.S. at 179 (suggesting "generic circumstances in which an implied assurance of confidentiality fairly can be inferred").

The FBI's March 11, 1998, declaration at least avers that evidence of express assurances exists, recorded either on the document containing the information or in some other place. Such a memorialization made contemporaneously with a report summarizing information received from a confidential source certainly suffices. See Campbell, 164 F.3d at 34. The trouble is that several of the contested documents do not contain the notations mentioned in the March 11 declaration.⁴The giving of express assurances may well be recorded elsewhere, but the mere recitation of that fact does not provide "detailed and specific information demonstrating 'that material withheld is logically within the domain of the exemption claimed'." Campbell, 164 F.3d at 30. At the very least the government must indicate where these assurances of confidentiality are memorialized. In light of these deficiencies, we reverse the grant of summary judgment as to documents that do not reveal an express assurance of confidentiality on their face and remand to allow the government to make a stronger showing.⁵

Billington also attacks redactions based on an implied assurance of confidentiality coded (b)(7)(D)-4 and (b)(7)(D)-5.The character of the crime and the source's relation to it may support an inference that the source provided information under an implied assurance of confidentiality. See Landano, 508 U.S. at 179. The FBI's March 11, 1998, declaration and attached exhibits indicate that law enforcement sources would...