Keeney v. F.B.I., 1037

• Decision Date: 03 September 1980
• Docket Number: No. 1037,D,1037
• Citation: 630 F.2d 114
• Parties: 6 Media L. Rep. 1888 Steven Harris KEENEY, Plaintiff-Appellee, v. FEDERAL BUREAU OF INVESTIGATION, Clarence M. Kelley, Director, Federal Bureau of Investigation, United States Department of Justice, and Edward H. Levi, Attorney General of the United States, Defendants-Appellants. ocket 79-6267.
• Court: U.S. Court of Appeals — Second Circuit

Page 114

630 F.2d 114

6 Media L. Rep. 1888

Steven Harris KEENEY, Plaintiff-Appellee, v. FEDERAL BUREAU OF INVESTIGATION, Clarence M. Kelley Director, Federal Bureau of Investigation, United States Department of Justice, and Edward H. Levi, Attorney General of the United States, Defendants-Appellants.

No. 1037, Docket 79-6267.

United States Court of Appeals Second Circuit.

Argued April 1, 1980.

Decided Sept. 3, 1980.

Michael Graham, Hartford, Conn., for plaintiff-appellee.

John C. Hoyle, Atty., Dept. of Justice, Washington, D.C. (Alice Daniel, Asst. Atty. Gen., Richard Blumenthal, U.S. Atty., D. Connecticut and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., on brief), for defendants-appellants.

Before LUMBARD, MANSFIELD and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

Defendants appeals from so much of a judgment of the United States District Court for the District of Connecticut, T. Emmet Clarie, Chief Judge, as ordered the Federal Bureau of Investigation ("FBI") to disclose to plaintiff, pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (1976), certain information supplied to the FBI by local law enforcement agencies. Because we conclude that such agencies may constitute "confidential source(s)," information from which may be exempt from disclosure under § 552(b)(7)(D), we vacate the judgment and remand for further proceedings.

FACTS

In the late 1960's the FBI compiled a dossier on plaintiff in connection with his New Left activities and his position as president of the Trinity College chapter of the Students for a Democratic Society. Plaintiff was apparently never prosecuted under federal law for any such activities. The FBI eventually closed its file on plaintiff and took his name off its list of potentially dangerous persons.

On July 27, 1975, plaintiff wrote to the FBI requesting copies of all files kept or maintained by the FBI concerning him. On August 24, 1975, at the FBI's request, he furnished additional information to enable it to make an accurate search of its records. During the ensuing year, plaintiff received no documents from the FBI, despite several follow-up requests and the intervention of plaintiff's congressman. The FBI explained that the delay was caused by an administrative backlog and the need to refer plaintiff's request to the FBI's Intelligence Division because some of the information in plaintiff's dossier was considered "classified." Plaintiff filed an appeal within the FBI but no action was taken on his appeal, apparently because the Appeals Unit also was suffering a backlog.

Plaintiff filed this action on October 8, 1976, seeking release of all of the FBI's documents concerning him. Meanwhile, the FBI had written to plaintiff on October 5, 1976, to advise him that 80 pages of material would be released to him upon his payment of an $8.00 duplicating fee. Plaintiff paid this fee and the 80 pages were released to him, but with substantial excisions. In response to plaintiff's administrative appeal, the FBI later released additional pages of material, consisting both of new material and of pages from the original release, now made available with less extensive deletions.

With these releases made, the dispute in the district court centered on the propriety of the deletions from the materials released and of the FBI's continued withholding of certain documents. Both sides moved for summary judgment. In support of their motion for summary judgment, the defendants submitted an affidavit by an FBI records supervisor, together with copies of the documents released and a comprehensive index which described in general terms the documents withheld, the information deleted from the released documents, and the FOIA exemption relied on for each withholding or deletion.

The motions for summary judgment were referred to Magistrate F. Owen Eagan, who, after receiving additional evidence and argument, filed a report recommending that the FBI be ordered to disclose to plaintiff any and all information concerning him still withheld by it, with seven exceptions. ¹ This recommended ruling rejected the defendants' contention that, pursuant to FOIA exemption 7(D), the FBI should not be required to disclose information received in confidence from local law enforcement agencies:

(T)he FBI may not withhold any information transmitted by local law enforcement agencies on the grounds that they are confidential sources. Section (b)(7)(D) "does not extend to entities such as corporations, credit bureaus, or other organizations, including law enforcement agencies."

(Magistrate's Report at 8-9, quoting Ferguson v. Kelley, 448 F.Supp. 919, 925 (N.D.Ill.1978), on motion for reconsideration, 455 F.Supp. 324 (N.D.Ill.1978)). By endorsement on the report, the district court adopted the magistrate's findings of fact and conclusions of law, and judgment was entered accordingly.

Defendants appeal only from so much of the district court judgment as orders disclosure of information supplied by local law enforcement agencies. Plaintiff has not cross-appealed with respect to any of the exceptions to disclosure allowed by the judgment. The sole issue on this appeal, therefore, is whether local law enforcement agencies may constitute "confidential source(s)" for purposes of exemption from disclosure.

DISCUSSION

FOIA provides in general that agency records must be disclosed to the public on request. 5 U.S.C. § 552(a). The statute provides a number of exemptions, however, including exemption 7(D), § 552(b)(7)(D), which is at issue here:

(b) This section does not apply to matters that are-

(7) investigatory records complied for law enforcement purposes, but only to the extent that the production of such records would . . .

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

5 U.S.C. § 552(b)(7)(D) (emphasis added). The cardinal question is the meaning of the words "confidential source." The magistrate construed these words to apply only to natural "persons" who provided information under an assurance, express or implied, of confidentiality. He concluded that the phrase " 'does not extend to entities such as corporations, credit bureaus, or other organizations, including law enforcement agencies.' " We disagree.

The plain language of exemption 7(D) does not suggest so narrow a construction. While a "source" of information obviously may be a single individual, one definition of "source" is "(t)hat from which anything comes forth." Webster's New International Dictionary 2405 (2d ed. 1957) (definition 3). See also Webster's Third New International Dictionary 2177 (1976) (definition 2b: "a point of origin or procurement . . . , SUPPLIER"). Accordingly, with respect to information, the word "source" is routinely used to refer also to statements, studies or compilations by collective entities such as committees, government agencies, corporations, and so forth. All of these are rather commonly referred to as sources of information. The modifier "confidential," evidently used in this context to mean showing trust in another, or "disposed to relate or confide private or secret matters," see Webster's Third New International Dictionary, supra at 476 (definition 2a), excludes sources which provide generally available data. But nothing in that word or in the experience of everyday life suggests that only natural persons can be disposed to confide secret information. Corporations, for example, commonly treat certain types of data as private and rely on business associates or governmental agencies not to make disclosures. Similarly an affidavit submitted by defendants in the present case indicated that local law enforcement agencies traditionally expect that information they provide to the FBI will be kept confidential. There appears to be no reason why a law enforcement agency which imparts information to the FBI on an understanding that it will not be revealed would not come within the plain meaning of the words "confidential source." See, e.g., Church of Scientology v. United States Dep't of Justice, 612 F.2d 417, 420 (9th Cir. 1979). Accord, id. at 428-29 (Wallace, J., dissenting).

Nor do we construe the legislative history of exemption 7(D) as requiring the narrow construction adopted in the district court. As originally enacted, exemption 7 of FOIA excluded from disclosure only "investigatory files compiled for law enforcement purposes except to the extent available by law to a private party." Pub.L.No. 89-487, 80 Stat. 251 (1966) (codified with a slight change in language by Pub.L.No. 90-23, 81 Stat. 55 (1967)). The present language of exemption 7, including subpart (D), was added in the 1974 Amendments to FOIA, Pub.L.No. 93-502, § 2(b), 88 Stat. 1563 (1974), and was a modification of an amendment proposed by Senator Hart as follows:

Section 552(b)(7) is amended to read as follows:

"Investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication or constitute a clearly unwarranted invasion of personal privacy, (C) disclose the identity of an informer, or (D) disclose investigative techniques and procedures."

120 Cong.Rec. 17033 (1974), reprinted in Subcomm. on Government Information and Individual Rights of the House Comm. on Government Operations & Subcomm. on Administrative Practice and Procedure of the Senate Comm. on the Judiciary, Freedom of Information Act and Amendments of 1974 (P.L. 93-502): Source Book: Legislative History, Texts, and Other Documents 332 (Joint Comm. Print 1975) (hereinafter cited as "Source...