Shaw v. F.B.I., 84-5084

• Decision Date: 05 December 1984
• Docket Number: No. 84-5084,84-5084
• Parties: J. Gary SHAW v. FEDERAL BUREAU OF INVESTIGATION, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 58

749 F.2d 58

242 U.S.App.D.C. 36

J. Gary SHAW v. FEDERAL BUREAU OF INVESTIGATION, Appellant.

No. 84-5084.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 31, 1984.

Decided Dec. 5, 1984.

Miriam M. Nisbet, Washington, D.C., of the Bar of the Supreme Court of North Carolina, pro hac vice by special leave of the Court, with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellant.

James H. Lesar, Washington, D.C., for appellee.

Before WILKEY, WALD and SCALIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge SCALIA.

SCALIA, Circuit Judge:

This case involves a challenge to the Federal Bureau of Investigation's refusal to disclose, in response to a request under the Freedom of Information Act, 5 U.S.C. Sec. 552 (1982) ("FOIA"), ten photographs it had obtained from a non-federal law enforcement agency. The FBI justified the withholding under FOIA Exemption 7(D), 5 U.S.C. Sec. 552(b)(7)(D). The case raises issues of the meaning in Exemption 7(D) of the phrase "confidential information furnished only by [a] confidential source"; the showing that must be made to establish that a document is, within the meaning of that exemption, a "record compiled by a criminal law enforcement authority in the course of a criminal investigation"; and qualification under that provision of an authorized federal investigation into a state crime.

I

On October 24, 1979, J. Gary Shaw made a formal request to the FBI under FOIA for copies of photographs of participants in an event called the Quebec-Washington-Guantanamo Walk for Peace. The photographs are attached to an FBI memorandum dealing with allegations that Lee Harvey Oswald was in Montreal during the summer of 1963. The Bureau denied Shaw's request on grounds that the information was classified pursuant to Executive Order No. 12,065 and therefore privileged from disclosure under FOIA Exemption 1, 5 U.S.C. Sec. 552(b)(1). Shaw took an administrative appeal, and the Department of Justice affirmed the denial on March 31, 1980. In October 1981 the photographs were declassified in connection with the administrative appeal of another requester, but were not disclosed to Shaw. On March 16, 1982, Shaw sued to compel production, under FOIA, 5 U.S.C. Sec. 552(a)(4)(B), in the United States District Court for the District of Columbia. The FBI moved for summary judgment on grounds that although the photographs were no longer classified they were properly withheld under FOIA Exemption 7(D), 5 U.S.C. Sec. 552(b)(7)(D).

On January 13, 1983, after an in camera inspection of the relevant records, the District Court issued an Order with accompanying Memorandum denying summary judgment and requiring the FBI to disclose the photographs on grounds that it had failed to show they were obtained in the course of a criminal investigation. On November 9, 1983, after examining a supplemental affidavit submitted by the FBI in support of its motion for reconsideration the court issued an Order denying the motion, on grounds that although the supplemental affidavit might be sufficient to establish that the photographs were obtained in the course of a criminal investigation, they did not constitute confidential information. The FBI has appealed to this court under 28 U.S.C. Sec. 1291 (1982).

II

Exemption 7(D) reads in its totality as follows:

[This section does not apply to matters that are--]

(7) investigatory records compiled 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. Sec. 552(b)(7). The judicial review provisions of the FOIA provide that "the burden is on the agency to sustain its action," 5 U.S.C. Sec. 552(a)(4)(B), which of course includes establishing the availability of an exemption from disclosure, see, e.g., Exxon Corp. v. FTC, 663 F.2d 120, 127 (D.C.Cir.1980). It is uncontested that burden was met here except in the respects discussed below.

We turn first to the District Court's holding that the photographs do not constitute "confidential information" within the meaning of this provision. This appears to rest primarily on grounds that photographs taken outdoors of individuals participating in a public demonstration cannot constitute confidential information but are by their very nature public. Shaw v. FBI, Civil No. 82-0756, Order at 2 (D.D.C. Nov. 9, 1983) ("Order").

"Nonpublic" or "secret" is certainly one of the meanings that the word "confidential" may bear. But it may also mean "provided in confidence"--i.e., provided with the assurance that it will not be disclosed to others. Even if the former meaning were accepted here, we would have some doubt whether the District Court's decision could be sustained, since the mere fact that an event occurred in public does not make it "public" in the relevant sense of "generally known"--as the composition of the Quebec-Washington-Guantanamo Walk for Peace evidently is not. In any case, "secret" is not the relevant meaning here. The purpose of the confidential information exemption is to prevent the FOIA from causing the "drying up" of sources of information in criminal investigations. See 120 CONG.REC. 17,036-37 (1974) (statement of Sen. Hruska, ranking minority member of Senate Judiciary Committee, criticizing earlier version of 1974 amendment to Exemption 7 which did not contain "confidential information" exemption on grounds that it would lead to drying up of FBI's sources). That purpose will not be achieved unless the person providing information under the assurance that it will not be disclosed can rely upon the fact that his disclosure will not result in further publication. He may have many reasons for desiring that result--the most common of which may be that he does not want to have to rely upon the agency's or the courts' judgment that disclosure will not reveal his identity (which is of course the basis for a separate exemption--the first clause of Exemption 7(D), which excuses the production of information that would "disclose the identity of a confidential source," 5 U.S.C. Sec. 552(b)(7)(D)). As we have recently held, therefore, "the availability of Exemption 7(D) depends not upon the factual contents of the document sought, but upon whether the source was confidential and the information was compiled during a criminal investigation." Weisberg v. United States Department of Justice, 745 F.2d 1476, 1492 (D.C.Cir.1984). Accord, Lesar v. United States Department of Justice, 636 F.2d 472, 492 (D.C.Cir.1980).

The District Court also supported its conclusion on grounds that the source of the information could not be deduced by examining the photos. Order at 2. This disregards the structure of Exemption 7(D), which establishes two separate categories of exemption: (1) information that would "disclose the identity of a confidential source," and (2) information that would "disclose ... confidential information furnished only by the confidential source." 5 U.S.C. Sec. 552(b)(7)(D). Requiring the second category to come within the first as well would render it entirely redundant. It is irrelevant to the second inquiry whether the information would reveal the identity of the source. See Duffin v. Carlson, 636 F.2d 709, 712-13 (D.C.Cir.1980); Radowich v. United States Attorney, 658 F.2d 957, 959, 962-64 (4th Cir.1981).

Finally, the District Court appears to have considered that because the information in dispute involves photographs of a public act which might have been taken by any number of people, the information could not be said to have been " 'furnished only' by the [confidential] source," as the exemption requires. Order at 2. Even if we reject the explicit holding of the Fourth Circuit, see Radowich, and the clear implication of dicta in this circuit, see the passages from Weisberg and Lesar cited supra, that "information furnished only by the confidential source" means "only that information which is furnished by the confidential source," this analysis would still be flawed. Whatever the phrase "furnished only by the confidential source" may mean, it assuredly cannot mean "obtainable only from the confidential source."

Shaw further argues on this appeal that the photographs are not privileged because their source was not a confidential one. He does not dispute that they were furnished to the FBI by a nonfederal law enforcement agency which advised the FBI that it desired to have the information and the fact of its cooperation kept confidential. Nor is it possible to deny that foreign and local law enforcement agencies can qualify as confidential sources for purposes of Exemption 7. See Weisberg, 745 F.2d at 1491-92; Lesar, 636 F.2d at 489-91. Shaw asserts, however, that the FBI has frequently revealed other information received from the same source at issue here--which he identifies, on the basis of more or less educated guesses, as the Royal Canadian Mounted Police. This, he says, means that the source is not confidential. Even accepting Shaw's speculations as true, they do not lead to the desired conclusion. Disclosure of one piece of information received from a particular party--and even the disclosure of that party as its source--does not prevent that party from being a "confidential source" for other purposes. If that were so, all those who ever wish to protect their identity as sources would have to deal with federal law enforcement agencies either always on a confidential basis or else not at all. The former recourse would produce a needless restriction of information quite at odds with the main purpose...