Radowich v. U.S. Atty., Dist. of Maryland, 81-1068

• Decision Date: 04 September 1981
• Docket Number: No. 81-1068,81-1068
• Citation: 658 F.2d 957
• Parties: Jeffrey J. RADOWICH, Appellee, v. UNITED STATES ATTORNEY, DISTRICT OF MARYLAND; and United States Department of Justice, Appellants, and Homer Gudelsky, Intervening Defendant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 957

658 F.2d 957

Jeffrey J. RADOWICH, Appellee, v. UNITED STATES ATTORNEY, DISTRICT OF MARYLAND; and United States Department of Justice, Appellants and Homer Gudelsky, Intervening Defendant.

No. 81-1068.

United States Court of Appeals, Fourth Circuit.

Argued May 7, 1981.

Decided Sept. 4, 1981.

Margaret E. Clark, Civil Division, Dept. of Justice, Washington, D. C. (Thomas S. Martin, Acting Asst. Atty. Gen., Washington, D. C., Russell T. Baker, Jr., U. S. Atty., Elizabeth H. Trimble, Asst. U. S. Atty., Baltimore, Md., Michael Kimmel, Civil Division, Dept. of Justice, Washington, D. C., on brief), for appellants.

Melvin J. Sykes, Baltimore, Md., for appellee.

Before WINTER, Chief Judge, and RUSSELL and WIDENER, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

The plaintiff/appellee sought the release under the Freedom of Information Act (FOIA) ¹ of certain information given the office of the United States Attorney in confidence by one Gudelsky in the course of a criminal investigation of political corruption conducted by that office. The Government objects to release asserting that such information was exempt from disclosure under work product, ² personal privacy, ³ and confidential information ⁴ exemptions. Other than for the excision under the work product exemption of the purely deliberative statements in the requested information made by the Assistant United States Attorney himself, the district court rejected all the exemption claims of the Government and ordered disclosure. ⁵

The Government has appealed, limiting its claims to those under the work product and confidential information exemptions. Since we find, contrary to the ruling of the district court, that the requested information is not subject to compulsory disclosure under exemption (b)(7)(D) (confidential information), it is unnecessary to consider the work product claim of the Government.

Exemption (b)(7)(D) protects from compulsory disclosure two specific types of confidential information, as stated in two separate clauses of the exemption, i. e., (1) any information disclosing the identity of a "confidential source" in any law enforcement investigation, whether civil or criminal; and (2) all information furnished by a confidential source if compiled in the course of a criminal investigation. ⁶ The distinction between the two types is that the first covers "(p)ersonnel, regulatory, and civil enforcement investigations" as well as criminal investigations if they reveal the identity of a confidential source, whereas the second embraces all information furnished by a confidential source but only in the course of a criminal investigation. ⁷

The district court found the first clause of this exemption to grant protection "only to the identity of a confidential source and (held that, since) the identity of Mr. Gudelsky's attorney is neither confidential nor at issue," the clause offered no protection from disclosure in this case. ⁸ It dismissed the second clause as inapplicable since "there (had) been no showing that these notes (which were the subject of the request for disclosure) contain 'confidential information furnished only by the confidential source.' " ⁹ We shall address initially the claim of the appellants under the first clause of the exemption. In so doing, we conclude the district court erred in its construction of the exemption and reverse its order of disclosure. Since the district court, however, found disclosure also not foreclosed under the second clause of 7(D), we must address that point too. We find the district court's ruling that this second clause offers no protection in this case is likewise erroneous.

It is manifest that, in dismissing the claim of exemption under the first clause of 7(D), the district court construed the term "confidential" as "secret" and, having so defined the term, concluded that, because Gudelsky and his attorney were at the time of the disclosure request known and thus were not "secret" sources, their information, even though suggestive of their identity, was not protected from disclosure. Under its construction of the term "confidential," the fact that the "source" had talked to the Assistant United States Attorney under the conceded pledge or promise of confidentiality was "irrelevant" on the issue of disclosure under 7(D) after the "identity" of the confidential source became known. The flaw in this reasoning, though, is that "confidential," as used in the exemption, is not to be construed as "secret" but as "given in confidence" or "in trust." This was made clear in the Joint Explanatory Statement of the Committee of Conference, Conference Report No. 93-1200, 1974, U.S.Code Cong. & Admin.News at 6291:

"The substitution of the term 'confidential source' in section 552(b)(7)(D) is to make clear that the identity of a person other than a paid informer may be protected if the person provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred. Under this category, in every case where the investigatory records sought were compiled for law enforcement purposes either civil or criminal in nature the agency can withhold the names, addresses, and other information that would reveal the identity of a confidential source who furnished the information."

And this construction of the exemption in the Joint Conference Report was followed in Keeney v. Federal Bureau of Investigation, 630 F.2d 114, 119 n. 2 (2d Cir. 1980), where the Court, after a careful review of the legislative history of the exemption, declared:

"We also reject plaintiff's argument that the exemption is inapplicable because the local law enforcement agencies in the present case have now been identified, and thus cannot constitute 'confidential' sources. As we have discussed above, the term, 'confidential' is used in exemption 7(D) in the sense of reposing confidence or trust, rather than in the sense of 'secret.' "

This definition of "confidential source," as stated in the Joint Conference Report and in Keeney is substantially the same as we announced earlier in Deering Milliken, Inc. v. Irving, 548 F.2d 1131, 1138 (4th Cir. 1977), where we held that to establish "the confidentiality of the source," which is, according to Lesar v. United States Dept. of Justice, 636 F.2d 472 (D.C.Cir.1980), the condition placed on the applicability of the exemption, it is only necessary to show that the information was given under an express assurance of confidentiality or in circumstances where such an assurance could reasonably be inferred. See also Maroscia v. Levi, 569 F.2d 1000, 1002 (7th Cir. 1977).

It is also clear that, as the Court declared in Lesar v. United States Dept. of Justice, supra, 636 F.2d at 491, the proscription of involuntary disclosure provided by the exemption does not disappear if the "identity" of the "confidential source" later becomes known but continues until the beneficiary of the promise of confidentiality waives disclosure. See also, to the same effect: Volz v. United States Dept. of Justice, 619 F.2d 49, 50 (10th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 397, 66 L.Ed.2d 244 (1980); Scherer v. Kelley, 584 F.2d 170, 176, n. 7 (7th Cir. 1978), cert. denied, 440 U.S. 964, 99 S.Ct. 1511, 59 L.Ed.2d 778 (1979).

It follows that the district court erred in holding that the first clause of the exemption was inapplicable in this case because the identities of the confidential sources were known. This is true because it is not suggested that the "confidential" sources in this case who concededly had talked to the Assistant United States Attorney only because of a pledge of confidentiality, had waived the assurance of confidentiality given them by the Assistant United States Attorney. The United States Attorney accordingly was perfectly right in denying disclosure of information that might disclose the identity of his "confidential" sources and the district court should have sustained his refusal under the first clause of 7(D). ¹⁰

Turning now to the second clause of 7(D), which protects "information furnished by a confidential source," the district court premised its conclusion that such exemption was inapplicable in this case on its construction of the phrase "confidential information furnished only by the confidential source" in that exemption. In its view, this language exempted only such information given by a confidential source that was not available from another source, and it would impose on the law enforcement agency the obligation of establishing that the information was not available to the agency from another source, as a condition to the right to the exemption.

Admittedly, this clause of the statute, in this particular at least, is awkwardly phrased. It is perhaps possible to give the language the construction adopted by the district court. On the other hand, the language can be construed as intended to limit the protection to information furnished by a confidential source only and not to information furnished by others. Under this construction any information furnished by the confidential source would be absolutely protected but disclosure could be compelled for information furnished by other than a confidential source. To repeat, under this construction, this exemption is limited to information furnished by a confidential source and only that information. And this construction seems more in keeping with the exemption's manifest purpose as clearly mirrored in the legislative history. ¹¹ It would be unreasonable to assume that Congress could have intended to protect all information reasonably likely to disclose the identity of a confidential source, even though known, in connection with "investigatory records, compiled for law enforcement purposes," either civil or criminal, but not to protect all information furnished by a confidential source, even though available from some other source, "in the course...