Irons v. F.B.I.

• Decision Date: 07 December 1988
• Docket Number: No. 87-1516,87-1516
• Parties: Peter IRONS, et al., Plaintiffs, Appellees, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1446

880 F.2d 1446

58 USLW 2089

Peter IRONS, et al., Plaintiffs, Appellees, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants, Appellants.

No. 87-1516.

United States Court of Appeals, First Circuit.

Heard Dec. 7, 1988.

Decided July 24, 1989.

Deborah Ruth Kant, Appellate Staff, Civ. Div., Dept. of Justice, with whom John R. Bolton, Asst. Atty. Gen., Washington, D.C., Frank L. McNamara, Jr., U.S. Atty., Boston, Mass., and Leonard Schaitman, Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C., were on briefs, for appellants.

Edward Greer, Philadelphia, Pa., for appellees.

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

OPINION EN BANC

BREYER, Circuit Judge.

The plaintiffs in this case, academic historians researching the McCarthy Era, have sued the government under the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552 (1982 & Supp. IV 1986). The plaintiffs want the Federal Bureau of Investigation ("FBI") to give them information contained in the FBI's Smith Act prosecutions file, information that would reveal what certain FBI informants, who testified at the Smith Act trials of alleged Communist leaders in the 1950s, had told the FBI (and other related material about those informants). The FOIA provides that "upon any request for records" following certain procedures, the agency "shall make the records promptly available to any person." 5 U.S.C. Sec. 552(a)(3). But this broad disclosure provision is limited by several exemptions. The FBI refused to release the files to the plaintiffs, relying on FOIA exemption 7(D), which permits the government to withhold records or information compiled for law enforcement purposes that:

could reasonably be expected to disclose the identity of a confidential source ... and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source.

5 U.S.C. Sec. 552(b)(7)(D) (emphasis added).

The legal question presented in this case is whether, despite the exception to disclosure afforded the FBI by the literal terms of exemption 7(D), the information should nevertheless be made available to the plaintiffs on the ground that the "confidential sources," by testifying at public trials concerning some of their communications to the FBI, "waived" the FBI's right to invoke exemption 7(D). The district court held that, because the informants had testified in public about these matters, much of the requested information no longer fell within the scope of exemption 7(D). On appeal, a panel of this court held that informants, by actually testifying publicly, "waived" the protections of exemption 7(D), but only insofar as they then actually revealed the information in question or insofar as the information in question would have fallen within the "hypothetical scope of cross examination" at the previous public trial. 851 F.2d 532 (1st Cir.1988) (subsequently withdrawn). Cf. Irons v. F.B.I., 811 F.2d 681 (1st Cir.1987) ("Irons I") (holding that mere willingness to testify publicly did not "waive" exemption 7(D)).

The government asked for rehearing en banc. It pointed out that FOIA's disclosure windows are open to every member of the public: a rule of law that permits reputable historians to conduct historical research will permit, to the same extent, the most disreputable criminals to search out the identity and knowledge of those who inform against them. See United States Department of Justice v. Reporters Committee for Freedom of the Press, --- U.S. ----, 109 S.Ct. 1468, 1480-81, 103 L.Ed.2d 774 (1989) ("Congress 'clearly intended' the FOIA 'to give any member of the public as much right to disclosure as one with a special interest [in a particular document]'," quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 1515, 44 L.Ed.2d 29 (1975) (emphasis added)). The government argued, in light of the fact that the rule of law enunciated in this case will apply well beyond the present Smith Act context to the entire realm of investigations governed by exemption 7(D), that the portion of the panel's rule italicized above (the portion dealing with cross-examination) would bring too much confidential information into the public domain. The government urged that this rule is not a legally permissible interpretation of exemption 7(D). We granted the petition for rehearing en banc, vacating and withdrawing the panel opinion. See 851 F.2d 532 (1st Cir.1988). We have reconsidered the district court's interpretation and application of exemption 7(D), and we conclude that the government is correct about the generally applicable rule of law. For that reason these plaintiffs are not legally entitled to the information they seek.

I.

To understand our answer to the legal question now before us, the reader must keep the following background circumstances in mind. First, the law permits the FBI to withhold both (1) information that "could reasonably be expected to disclose the identity of a confidential source," and (2) "information furnished by a confidential source" (where the FBI has received the information in the course of a criminal or national security intelligence investigation). 5 U.S.C. Sec. 552(b)(7)(D).

Second, for purposes of this rehearing en banc, we take as given the fact that the relevant sources here are "confidential." A person is a confidential source

"if the person provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred." S.Rep.No. 1200, 93d Cong., 2d Sess. 13 (1974) U.S. Code Cong. & Admin. News, 6267, 6291 (Conference Report).

Lame v. United States Department of Justice, 654 F.2d 917, 923 (3rd Cir.1981). The sources here received the requisite "assurance of confidentiality." See Keys v. United States Department of Justice, 830 F.2d 337, 345 (D.C.Cir.1987); Irons I, 811 F.2d at 686 (assurance of confidentiality is " 'inherently implicit in FBI interviews conducted pursuant to a criminal investigation' ") (quoting Miller v. Bell, 661 F.2d 623, 627 (7th Cir.1981) (per curiam), cert. denied, 456 U.S. 960, 102 S.Ct. 2035, 72 L.Ed.2d 484 (1982)) (citations omitted). Sometimes, of course, the fact that a source later gave public testimony might show that a law enforcement agency never gave a valid assurance of confidentiality in the first place, see, e.g., Van Bourg, Allen, Weinberg & Roger v. N.L.R.B., 751 F.2d 982, 986 (9th Cir.1985); Poss v. N.L.R.B., 565 F.2d 654, 658 (10th Cir.1977); Climax Molybdenum Co. v. N.L.R.B., 407 F.Supp. 208, 209 (D.Colo.1975), aff'd on other grounds, 539 F.2d 63 (10th Cir.1976); and sometimes it might show that an assurance was intended by all parties to expire after a certain time, e.g. Nemacolin Mines Corp. v. N.L.R.B., 467 F.Supp. 521, 524-25 (W.D.Pa.1979). But such is not the situation here. Irons I, 811 F.2d at 685-86 & n. 2.

Third, the information here at issue falls within the literal language of the second clause of the exemption. That is to say, it was "furnished by a confidential source" (though long ago). The words "furnished by a confidential source" do not mean that the information or the identity of the source is secret; they simply mean that the information was "provided in confidence" at the time it was communicated to the FBI. Shaw v. F.B.I., 749 F.2d 58, 61 (D.C.Cir.1984); L & C Marine Transport, Ltd. v. United States, 740 F.2d 919, 925 n. 8 (11th Cir.1984); Radowich v. United States Attorney, District of Maryland, 658 F.2d 957, 959 (4th Cir.1981); Keeney v. F.B.I., 630 F.2d 114, 117, 119 n. 2 (2d Cir.1980).

Fourth, we are not considering the FBI's refusal to make available information restating what the sources in fact revealed at the Smith Act trials. In this dispute the government does not contest the plaintiffs' right to obtain documents that reveal no more than what the FBI sources have already revealed at trial, even though other courts have upheld, under exemption 7(D), the FBI's refusal to disclose such information. See L & C Marine Transport, 740 F.2d at 925 (law enforcement agencies need not disclose information about source identity even though the source's identity is already publicly known); Radowich, 658 F.2d at 960 (same); Lame, 654 F.2d at 925 ("subsequent release or publication ... of a portion of the information [originally given in confidence] does not negate the exemption for any of the information originally given") (emphasis added; footnote omitted); Lesar v. United States Department of Justice, 636 F.2d 472, 491 (D.C.Cir.1980) (same). We focus here only upon the plaintiffs' claim that they are entitled to more than what the Smith Act trials in fact brought to light.

One might wonder, in light of what we have just written, how the plaintiffs could plausibly claim that they are entitled to the information they seek. After all, most of the information sought falls within the plain language of exemption 7(D): "information furnished by a confidential source." Why, at least in respect to this information, is the literal language not the end of the matter? The reason that the plaintiffs' claim is plausible is that some courts have written opinions that use the word "waiver" when discussing exemption 7(D); one might therefore argue that a "confidential source" could "waive" the exemption and that the statute foresees courts defining the scope of any such "waiver." See, e.g., Ingle v. Department of Justice, 698 F.2d 259, 269 (6th Cir.1983); Miller v. Bell, 661 F.2d at 628; Radowich, 658 F.2d at 960; Powell v. United States Department of Justice, 584 F.Supp. 1508, 1530 (N.D.Cal.1984). The plaintiffs argue that the sources' testifying amounted to such a "waiver." Indeed, the panel in the present case agreed and undertook the difficult task of defining a "waiver's...