Massey v. F.B.I.

• Decision Date: 27 August 1993
• Docket Number: No. 1345,D,1345
• Citation: 3 F.3d 620
• Parties: Harold MASSEY, Plaintiff-Appellant, v. FEDERAL BUREAU OF INVESTIGATION, U.S. Department of Justice, Defendants-Appellees. ocket 92-6086.
• Court: U.S. Court of Appeals — Second Circuit

Page 620

3 F.3d 620

Harold MASSEY, Plaintiff-Appellant, v. FEDERAL BUREAU OF INVESTIGATION, U.S. Department of Justice Defendants-Appellees.

No. 1345, Docket 92-6086.

United States Court of Appeals Second Circuit.

Argued May 6, 1993.

Decided Aug. 27, 1993.

Thomas I. Sheridan, III, New York City (Peter R. Bain, Haythe & Curley, of counsel), for plaintiff-appellant.

Donald P. Simet, Asst. U.S. Atty., Buffalo, NY (Dennis C. Vacco, U.S. Atty., W.D.N.Y., of counsel), for defendants-appellees.

Before: MESKILL, Chief Judge, ^* PIERCE and WALKER, Circuit Judges.

WALKER, Circuit Judge:

Plaintiff Harold Massey appeals from the judgment of the United States District Court for the Western District of New York (Curtin, J.), granting the summary judgment motion of defendants-appellees Federal Bureau of Investigation (the "FBI") and United States Department of Justice, and dismissing Massey's Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552, complaint.

BACKGROUND

On April 26, 1988, Massey requested from the Rochester, New York office of the FBI the release under FOIA of documents related to his New York State murder conviction. The FBI located two documents responsive to Massey's request. The first is a reproduction of a newspaper article, which the FBI Massey appealed the redaction of the newspaper article and withholding of the memorandum to the Office of Information and Privacy of the Department of Justice, which affirmed the FBI's decision. On January 5, 1989, Massey filed the instant action to obtain the withheld information under FOIA. And, on February 7, 1992, Judge Curtin granted the defendants' motion for summary judgment and dismissed the complaint.

produced after redacting internal FBI notations containing the name of an FBI agent, the initials of other FBI employees, and certain administrative markings, pursuant to certain exemptions to FOIA. The second is an internal FBI memorandum which the FBI withheld in its entirety, also pursuant to certain FOIA exemptions.

On this appeal, we consider whether the FBI properly invoked certain exemptions to FOIA in support of its redaction of one document and withholding of the other.

DISCUSSION

A federal court reviews de novo an agency's decision to withhold or redact records requested under FOIA. See 5 U.S.C. Sec. 552(a)(4)(B). The statutory exemptions provided under FOIA are "narrowly construed with doubts resolved in favor of disclosure." Federal Labor Relations Auth. v. United States Dep't of Veterans Affairs, 958 F.2d 503, 508 (2d Cir.1992) (hereinafter "FLRA "). And, where an agency withholds or redacts documents requested under FOIA, the agency bears the burden of sustaining its action. See 5 U.S.C. Sec. 552(a)(4)(B); see also Hopkins v. HUD, 929 F.2d 81 (2d Cir.1991).

The FBI invoked FOIA exemption (b)(2), which protects from disclosure records "related solely to the internal personnel rules and practices of an agency," 5 U.S.C. Sec. 552(b)(2), in support of its withholding of "informant symbol numbers, along with other source identifying information, and purely administrative markings, i.e. file numbers."

Massey argues that the (b)(2) exemption relates only to agency personnel rules and practices, and thus does not apply to information concerning non-employee informants. This argument is unsupported by case law.

Exemption (b)(2) relates to information concerning " 'those rules and practices that affect the internal workings of an agency[,]' and, therefore, would be of no genuine public interest." Buffalo Evening News, Inc. v. United States Border Patrol, 791 F.Supp. 386, 391 (W.D.N.Y.1992) (quoting Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1056 (D.C.Cir.1981) (en banc)) (alteration in Buffalo Evening News); see Malizia v. United States Dep't of Justice, 519 F.Supp. 338, 344 (S.D.N.Y.1981) (Weinfeld, J.); see also Department of the Air Force v. Rose, 425 U.S. 352, 369-70, 96 S.Ct. 1592, 1603, 48 L.Ed.2d 11 (1976). Such internal agency information may be withheld if it is of "no genuine public interest" or, if the material is of public interest, and "the government demonstrates that disclosure of the material would risk circumvention of lawful agency regulations." Buffalo Evening News, Inc., 791 F.Supp. at 391; see Founding Church of Scientology of Washington, D.C., Inc. v. Smith, 721 F.2d 828, 830 n. 4 (D.C.Cir.1983).

As Judge Weinfeld stated in Malizia, "there is no legitimate public interest in the FBI's practice of labelling and identifying its sources." 519 F.Supp. at 344. Moreover, disclosure of such information could do substantial damage to the FBI's law enforcement activities, for example by compromising the confidentiality of sources. See id. at 344-45. Thus, such information "plainly fall[s] within the ambit of Exemption 2." Lesar v. United States Dep't of Justice, 636 F.2d 472, 485 (D.C.Cir.1980); see Malizia, 519 F.Supp. at 344-45.

Massey also challenges the FBI's invocation of exemption (b)(7)(D), which exempts from disclosure, inter alia, agency 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 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 There is no dispute that the records requested by Massey were compiled by the FBI for law enforcement purposes. However, Massey contends that the defendants have not proffered sufficient evidence to establish that the information withheld under exemption (b)(7)(D) was provided by a confidential source. An agency invoking exemption (b)(7)(D) is not required to provide evidence of an express promise of confidentiality. See United States Dep't of Justice v. Landano, --- U.S. ----, ----, 113 S.Ct. 2014, 2021-24, 124 L.Ed.2d 84 (1993). Rather, a court may infer that information was provided in confidence. See id. In Donovan v. FBI, 806 F.2d 55 (2d Cir.1986), we held that a court may find an implied assurance of confidentiality "when 'it is apparent that the agency's " 'investigatory function depends for its existence upon information supplied by individuals who in many cases would suffer severe detriment if their identities were known.' " ' " Id. at 61 (quoting Diamond v. FBI, 707 F.2d 75, 78 (2d Cir.1983) (quoting Lamont v. Department of Justice, 475 F.Supp. 761, 779 (S.D.N.Y.1979) (citation omitted) (Weinfeld, J.)), cert. denied, 465 U.S. 1004, 104 S.Ct. 995, 79 L.Ed.2d 228 (1984)). The defendants contend that Donovan implied that such inferences could be drawn in connection with most criminal investigations.

..., information furnished by a confidential source.... 5 U.S.C. Sec. 552(b)(7)(D). The FBI employed this exemption in withholding the identities of and information provided by informants, including cooperating nonfederal law enforcement sources, in connection with a criminal investigation involving Massey.

However, our construction of exemption (b)(7)(D) in Donovan was limited by the Supreme Court's recent opinion in Landano. In Landano, the FBI argued that, for purposes of exemption (b)(7)(D), "a presumption of confidentiality arises whenever any individual or institutional source supplies information to the [FBI] during a criminal investigation." --- U.S. at ----, 113 S.Ct. at 2018. The Court rejected this "categorical" presumption of confidentiality in favor of a "particularized approach" that looks to "factors such as the nature of the crime that was investigated and the source's relation to it" in order to determine whether confidentiality may be inferred. Id. --- U.S. at ---- - ----, 113 S.Ct. at 2023-24; see also Freeman v. United States Dep't of Justice, No. Civ. A. 92-0557-LFO, 1993 WL 260694, at * 3 (D.D.C. June 28, 1993) (under reasoning of Landano, "the government must present specific evidence justifying an assertion that a condition of confidentiality was implied").

Landano noted that courts may look to the risks an informant might face were her identity disclosed, such as retaliation, reprisal or harassment, in inferring confidentiality. See --- U.S. at ----, 113 S.Ct. at 2023. The Landano Court cited Donovan approvingly in this regard, noting our focus upon the risk that the FBI investigation of murders in El Salvador at issue in that case might have been impaired if sources feared disclosure of their identities. See id.; see also Donovan, 806 F.2d at 61. The Court also noted that there may be certain "generic circumstances" in which confidentiality can be inferred, for example, where an informant is paid by the government, or where an informant provides information concerning offenses such as gang-related shootings. See Landano, --- U.S. at ----, 113 S.Ct. at 2023; see also Manchester v. DEA, 823 F.Supp. 1259, 1272 (E.D.Pa.1993) (under reasoning of Landano, "confidentiality may be generally inferred from the character of the crime at issue and thesource's relation to the crime").

On the record before us, we cannot establish whether the particular circumstances under which the FBI received the information at issue give rise to an inference of confidentiality. We thus vacate that portion of the district court's decision upholding the FBI's withholding and redaction of information identifying or provided by putatively confidential sources, and remand to the district court for further inquiry. On remand, the FBI should provide the court and Massey with a supplemental affidavit explaining the nature of the criminal investigation discussed in the internal FBI memorandum and the relation of the purportedly confidential source or sources to it, as required by Landano. See, e.g., Oliva v. United States Dep't Finally, Massey challenges the FBI's invocation of exemption (b)(7)(C), which applies to "records or information compiled for law enforcement purposes, but only to the...