Miller v. Bell, 79-1210

Decision Date01 October 1981
Docket NumberNo. 79-1210,79-1210
Citation661 F.2d 623
PartiesDavid MILLER, Plaintiff-Appellee, v. Griffin B. BELL, Attorney General of the United States, William H. Webster, Director of the Federal Bureau of Investigation, and United States Department of Justice, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Mark N. Mutterperl, Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C., for defendants-appellants.

Robert M. Hodge, Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, PELL, Circuit Judge, and LARSON, Senior District Judge. *


This appeal arises under the Freedom of Information Act, 5 U.S.C. § 552. The plaintiff David Miller (Miller) requested the Federal Bureau of Investigation (the FBI or the Bureau) and the Justice Department to provide him with all documents relating to his complaint to the FBI that someone had wiretapped his telephone. 1 The FBI released some 54 pages of material to the plaintiff, but, pursuant to exemptions 7(C) and (D) of the Act, §§ 552(b)(7)(C) & (D), the Bureau excised the names of persons interviewed in connection with the investigation, third parties named in those interviews, and FBI agents who took part in the investigation. The plaintiff brought suit to compel disclosure of the excised information. The district court granted the plaintiff's motion for summary judgment, and ordered the FBI to disclose all excised material. 483 F.Supp. 883. The issue presented by this appeal is whether the trial court erred when it found that exemptions 7(C) and (D) were not applicable to the excised names.


As a threshold matter, the plaintiff challenges this court's jurisdiction of this appeal, claiming that the district court's order requiring the FBI to turn over the excised information is not a final order, and thus is not appealable.

A disclosure order in a FOIA suit is injunctive in nature. It is granted pursuant to 5 U.S.C. § 552(a)(4)(B), which confers jurisdiction upon the district court, "to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." This vests the district court with all the powers of an equity court to issue injunctive relief from withholding of agency records. Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 18, 20, 94 S.Ct. 1028, 1037, 1038, 39 L.Ed.2d 123 (1974). The courts of appeals have jurisdiction of appeals from interlocutory orders of the district court granting injunctions, pursuant to 28 U.S.C. § 1292(a). Thus we have jurisdiction of the present appeal regardless of whether other issues remain pending in the district court. 2 Coastal States Gas Corp. v. Department of Energy, 644 F.2d 969, 979 & n.15 (3d Cir. 1981); cf. Theriault v. United States, 503 F.2d 390, 391 (9th Cir. 1974) (when release of documents under FOIA is the ultimate relief sought by party, an order compelling their release is final under doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)).


Before turning to the Bureau's specific assignments of error in the district court decision, a brief overview of the relevant statutory framework may be helpful. The purpose of the FOIA is to allow public access to official information unnecessarily shielded from public view, see EPA v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973). An agency must release information in its possession unless it falls within one of the nine statutory exemptions to the Act. In light of the policy favoring disclosure, however, those exemptions are to be narrowly construed. Theriault v. United States, 503 F.2d 390, 392 (9th Cir. 1974). The Act provides that the district court is to make a de novo review of the administrative claim of exemption, and that the burden of justifying the decision to withhold is on the agency. 5 U.S.C. § 552(a)(4)(B).

In light of the circumstances of this suit, 3 it is also well to note that it is not the purpose of the Act to benefit private litigants, NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n.10, 95 S.Ct. 1504, 1512 n.10, 44 L.Ed.2d 29 (1975), by serving as an adjunct or supplement to the discovery provisions of the Federal Rules of Civil Procedure, Nix v. United States, 572 F.2d 998, 1003 (4th Cir. 1978).

In 1974, Congress amended the FOIA provisions governing the role of a reviewing court in considering claimed exemptions. Prior to 1974 investigatory files compiled for law enforcement purposes were deemed entirely exempt from disclosure. See, e. g., Center for National Policy Review on Race & Urban Issues v. Weinberger, 502 F.2d 370, 372 (D.C.Cir.1974). The 1974 amendments narrowed this broad grant of exemption by limiting its application to particular types of information within the investigatory file.

Congress was extremely concerned, however, that personal privacy and confidentiality be preserved by means of exemptions 7(C) & (D), those at issue in this suit. Senator Hart, who introduced the amendment, discussed at length the purpose and operation of these exemptions in a Memorandum Letter contained in the legislative history of the amendments. He stated:

A question has been raised as to whether my amendment might hinder the (FBI) in the performance of its investigatory duties. The Bureau stresses the need for confidentiality in its investigations. I agree completely....

... My amendment would not hinder the Bureau's performance in any way.... (The amendment) was carefully drawn to preserve every conceivable reason the Bureau might have for resisting disclosure of material in an investigative file:

If informants' anonymity whether paid informers or citizen volunteers would be threatened, there would be no disclosure;


If disclosure is an unwarranted invasion of privacy, there would be no disclosure....;

If in any other way the Bureau's ability to conduct such investigation was threatened, there would be no disclosure.

120 Cong.Rec. S17040 (1974), reprinted in Subcomm. on Govt. Information and Individual Rights, House Comm. on Govt. Operations. 94th Cong., 1st Sess., Freedom of Information Act and Amendments of 1974 (P.L. 93-502) Source Book: Legislative History, Texts, and other Documents (Joint Comm. Print) 351 (hereinafter cited as FOIA Source Book).

In relation to the confidential information and source provisions of exemption 7(D) Senator Hart was specific in identifying precisely the burden of justification for withholding that the exemption imposed upon the Bureau:

(T)he agency not only can withhold information which would disclose the identity of a confidential source but also can provide blanket protection for any information supplied by a confidential source. The President is therefore mistaken in his statement that the FBI must prove that disclosure would reveal an informer's identity; all the FBI has to do is to state the information was furnished by a confidential source and it is exempt.

120 Cong.Rec. S36871 (Remarks of Sen. Hart) (1974), reprinted in FOIA Source Book at 451. See Terkel v. Kelly, 599 F.2d 214, 216 (7th Cir. 1979), cert. denied, 444 U.S. 1013, 100 S.Ct. 662, 62 L.Ed.2d 642 (1980).

A. Exemption (b)(7)(D).

We first turn our attention to (b)(7)(D), which exempts investigatory records compiled for law enforcement purposes to the extent that their release would "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, ... confidential information furnished only by the confidential source." The district court noted that this exemption is available to an agency either if the source of the information is given an express assurance of confidentiality, or if one could reasonably infer such an assurance from the circumstances of the interview. It concluded that the Government had failed to carry its burden of proof on its claim that the interviews at issue were given with such implied assurances of confidentiality. The trial court expressed two grounds for its conclusion. First, it noted an affidavit from one interviewee which specified that no express assurances of confidentiality were made, and that she did not infer such a pledge of confidentiality. Second, the court held that the Bureau had failed to show that this was a case in which an interviewee might have some reason for desiring confidentiality. The Bureau contends that the trial court erred by imposing a higher standard of proof upon the FBI than that intended by the legislature, and the standard established by this court in Scherer v. Kelley, 584 F.2d 170 (7th Cir. 1978), cert. denied, 440 U.S. 964, 99 S.Ct. 1511, 59 L.Ed.2d 778.

In Scherer, this court examined FBI claims of exemption under §§ 7(C) & (D). We concluded that FBI affidavits which "comprehensively set forth the exemptions upon which (the) agency had relied when it excised portions of its file ... and set forth the reasons underlying their use," were sufficient to sustain FBI claims of exemption. 584 F.2d at 175, 176. See Maroscia v. Levi, 569 F.2d 1000 (7th Cir. 1977). We find that this standard is in keeping with the purpose of the Act as expressed in its legislative history, supra.

Special Agent King's lengthy and detailed affidavit of October 28, 1977, adequately meets this standard. It identifies each type of excision and relates them in particular detail to the relevant claimed exemption. The affidavit also sets forth the reasons of the FBI in relying on the claimed exemptions, and articulately expresses the concern of the Bureau that such material remain confidential in order to preserve the Bureau's ability to elicit continued public cooperation through such interviews. See Scherer, 584 F.2d at 176; Maroscia, 569 F.2d at 1002. The legislative history makes it clear that the drafters of the 1974 amendments were fully cognizant of such...

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