Vol. XIII, No. 3
Court to Hear Exemption 7(D) Case
The United States Supreme Court has decided to hear a Freedom of Information Act case involving law enforcement records, one with broad implications for the protection of confidential law enforcement sources under Exemption 7(D) of the Act.
On the first day of its new Term, the Supreme Court granted the government's petition for certiorari in United States Dep't of Justice v. Landano, 61 U.S.L.W. 3256 (U.S. Oct. 5, 1992) (No. 91- 2054), agreeing to review a Third Circuit Court of Appeals decision that would require disclosure of confidential source identities by the FBI where it is unable to submit "individualized" proof of the confidentiality expected by its sources.
The Landano case arose from Vincent Landano's 1976 conviction in a New Jersey state court for the murder of a police officer. While challenging that conviction in both state and federal court, Landano sought complete FOIA access to all related records of the FBI, which had played a collateral role in his prosecution. After the FBI redacted its file to protect both personal privacy interests under Exemption 7(C) and confidential source information under Exemption 7(D), Landano brought a FOIA lawsuit, arguing that he needed any such "exculpatory" information.
The district court ruled in Landano's favor, ordering the disclosure of much of the information withheld under both exemptions. On appeal, the Third Circuit ruled that the information withheld by the FBI under Exemption 7(C) had been properly withheld, but it ordered disclosure of most of the confidential source information withheld under Exemption 7(D). Landano v. United States Dep't of Justice, 956 F.2d 422, 436 (3d Cir. 1992).
The Third Circuit concluded that it was bound to follow one of its earlier FOIA decisions, Lame v. United States Dep't of Justice, 654 F.2d 917, 923-29 (3d Cir. 1981), in which it had stated that an agency seeking to protect confidential sources under Exemption 7(D) must submit "detailed explanations [as] to each alleged confidential source." Without "a showing by the government of the particular circumstances of an interview or source," the Third Circuit concluded, it could not draw the inference of actual confidentiality that is minimally necessary under Exemption 7(D). 956 F.2d at 435. See also FOIA Update, Winter 1992, at 3.
This approach to establishing the confidentiality of sources under Exemption 7(D) conflicts sharply with the "presumption" of confidentiality that is employed by most other circuit courts of appeals. In the D.C., Second, Sixth, Seventh, Tenth and Eleventh Circuits, confidentiality is presumed to be implicit in investigative contact with a law enforcement agency such as the FBI, so source-by-source showings are not required.
For that reason, and because proving the exact circumstances of a source relationship many years after the fact can be extremely difficult, if not impossible, the Solicitor General sought Supreme Court review. In asking the Supreme Court to resolve the conflict among circuit courts on this important FOIA issue, the Solicitor General stressed that the Third Circuit's source-by-source rule "imposes an evidentiary burden that will, in many instances, be impossible to meet."
The case should be scheduled for argument in early 1993, with a decision expected by the end of next spring. This will be the fifth time that the Supreme Court has considered an Exemption 7 FOIA issue since that exemption was amended in 1974, but it will be the first occasion for the Court to consider and interpret Exemption 7(D). At the same time that the Court granted the Solicitor General's petition for certiorari on the Exemption 7(D) issue, it denied a cross-petition filed by Landano regarding Exemption 7(C).
The Supreme Court's decision to hear Landano follows its decision not to hear another FOIA case involving FBI records at the very end of its most recent Term. In late June, the Supreme Court denied the Solicitor General's certiorari petition asking it to review a novel Ninth Circuit Court of Appeals FOIA decision in Wiener v. FBI, 943 F.2d 972 (9th Cir.) (as amended upon petition for rehearing), reh'g en banc denied, 951 F.2d 1073 (9th Cir. 1991), cert. denied, 112 S. Ct. 3013 (1992).
The Wiener case, which remains ongoing, involves the FBI's investigative files on former Beatle John Lennon. In processing those records for disclosure under the FOIA, the FBI withheld portions of them under a variety of law enforcement and national security exemptions. After all of the withheld information was examined in camera by the district court judge, who found it to be properly withheld, the plaintiff appealed to the Ninth Circuit, arguing that a standard Vaughn Index of the withheld information was inadequate to permit him to challenge the FBI's withholding.
In an unprecedented FOIA decision, the Ninth Circuit accepted this procedural argument in Wiener totally. It adopted a novel FOIA rule that a Vaughn Index must be designed to provide a FOIA requester with as much detail as possible in order "to enable the requester to contest the withholding" of any of the information. 943 F.2d at 980. Without ordering any disclosure per se, it remanded the case back to the district court judge with strict instructions for the preparation of exceptionally detailed new Vaughn declarations necessary to justify any withholding under its new standards. See FOIA Update, Summer 1991, at 5.
Despite the interlocutory nature of the Ninth Circuit's ruling (i.e., it ordered no information immediately disclosed), the Solicitor General determined that the matter was of such exceptional importance to federal agencies as to warrant a certiorari petition seeking review of the Ninth Circuit's extraordinary "maximum-detail standard."
The Supreme Court's denial of that petition now leaves all federal agencies in the position of having to strive to meet this onerous new standard in FOIA lawsuits litigated within the jurisdictional bounds of the Ninth Circuit. Thus far, the Wiener rule of "maximum" Vaughn specificity has not been applied in any other jurisdiction.
A FOIA issue that is very likely to reach a final stage and warrant Supreme Court resolution in the coming year is the Exemption 6 issue involved in numerous FOIA-related lawsuits brought by the Federal Labor Relations Authority (FLRA) in recent years. These suits stem from the FLRA's efforts to compel federal agencies to disclose the home addresses of their employees to labor unions under the provisions of the Federal Service Labor-Management Relations Act (FSLMRA), which in turn implicate the privacy-protection provisions of both Exemption 6 and the Privacy Act of 1974; the FOIA issue on which these cases turn is whether the disclosure policies of a statute other than the FOIA (such as the FSLMRA) can be factored into the public interest balancing process under Exemption 6. See FOIA Update, Spring 1992, at 11.
Three years ago, not long after the Supreme Court issued its landmark privacy-protection decision in Reporters Committee, see FOIA Update, Spring 1989, at 1, the D.C. Circuit Court of Appeals ruled that only the "core purpose" of the FOIA, not the policies of federal labor statutes, should be given weight under Exemption 6. See FLRA v. United States Dep't of the Treasury, 884 F.2d 1446, 1453 (D.C. Cir. 1989). Thus far, this position has been adopted by the First, Second, Sixth and Seventh Circuit Courts of Appeals. However, three other circuits, most notably the Ninth Circuit in FLRA v. Department of the Navy, 958 F.2d 1490, 1496-97 (9th Cir. 1992) (petition for rehearing en banc pending), recently have ruled to the contrary. This makes Supreme Court attention to this FOIA issue now virtually inevitable.
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