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Exemption 7D

Court of Appeals Decisions

Rimmer v. Holder, 700 F.3d 246 (6th Cir. 2012) (Boggs, J.).  Holding: Affirming district court's grant of summary judgment in favor of the FBI.  The court upholds the district court's affirmance of the Exemption 7(D) redactions.  Here, "the confidential sources that the FBI redacted under 7(D) were individuals who . . . called a confidential Crime Stoppers hotline to provide information" concerning a murder investigation.  The court notes that the "the district court correctly dispensed with [plaintiff's] claim that his personal knowledge of the identity of most of the government's confidential sources neutralized the personal-privacy protection afforded them under Exemption 7(D).  In this circuit, it is well-settled that '[i]f a confidential source is later revealed, we nonetheless restrict public access to documents under [Exemption 7(D)] so long as the informant and the agency intended the identity of the source to remain undisclosed at the time the agency compiled the information."  The court finds that it is undisputed that both the callers and the FBI "intended that the callers' identities remain undisclosed at the time of the calls."

Hulstein v. DEA, No. 11-2039, 2012 WL 671964 (8th Cir. Mar. 2, 2012) (Bright, J.).  Reversing the judgment of the district court; and concluding that DEA properly withheld certain information pursuant to Exemptions 7(C) and 7(D).  The Eighth Circuit reverses the district court's ruling ordering the release of information withheld pursuant to Exemption 7(D) contained in a DEA investigative report.  The Eighth Circuit notes that the district court rejected DEA's "argument that [certain withheld] information could reveal the identity of a confidential source, but did not address whether there was an implied assurance of confidentiality based on the circumstances."  The Eight Circuit finds that it "need not address whether the redacted information in the 1990 report could reveal the identity of the source because [it] determine[s] that an implied assurance of confidentiality rests on the nature of the alleged crime and the witness's relationship to the crime."  Here, the Eighth Circuit determines that the unredacted portions of the report demonstrate that there is a "risk of retaliation against the source," which is not mitigated by the passage of time or impacted by authorities' actions with respect to the allegations directed against plaintiff, and concludes that the redacted portion of one of the reports also "independently supports the DEA's argument that there was an implied assurance of confidentiality with the source."

Pickard v. DOJ, No. 08-15504, 2011 WL 3134505 (9th Cir. July 27, 2011) (Silverman, J.).  Holding:  Reversing district court's grant of summary judgment and concluding that the DEA cannot assert the Glomar response in conjunction with Exemptions 7(C) and 7(D) to deny the subject of the request's status as an informant where the government officially confirmed that status in open court in the course of official proceedings; and remanding the matter for the district court to determine the appropriateness of DEA's exemption claims.  The Ninth Circuit holds that the DEA cannot invoke a Glomar response in conjunction with Exemptions 7(C) and 7(D) with respect to an informant in plaintiff's criminal case because the government has "officially confirmed" his status as an informant within the meaning of FOIA's (c)(2) exclusion.  The (c)(2) exclusion provides that an "'agency may treat the records as not subject to the requirements of this section unless the informant's status as an informant has been officially confirmed.'"  Quoting the D.C. Circuit in Boyd v. Criminal Division of the U.S. Department of Justice, the Ninth Circuit notes that "'[w]here an informant's status has been officially confirmed, a Glomar response is unavailable, and the agency must acknowledge the existence of any responsive records it holds.'" 

Although DEA's submissions demonstrated that there was "'no official public pronouncement regarding the status of [the subject] as a confidential source,'" the Ninth Circuit determines that "nothing in the statute or legislative history suggests that in the context of the interests protected by the (c)(2) exclusion, 'official confirmation' requires that the government issue a press release publishing the identity of a confidential informant or that the director of a law enforcement agency personally identify the informant." Rather, the Ninth Circuit finds that "the plain language of the term 'official confirmation' in the context of 5 U.S.C. § 552(c)(2) leads to . . . a 'rational common-sense result' when read to mean an intentional, public disclosure made by or at the request of a government officer acting in an authorized capacity by the agency in control of the information at issue." 

In this case, the Ninth Circuit finds that "[a]t [plaintiff's] criminal trial, the government, as part of its case-in-chief, intentionally elicited testimony from [the subject] and several DEA agents as to [his] activities as a confidential informant in open court and in the course of official and documented public proceedings."  Accordingly, "the revelation of [the subject's] identity as an informant was not the product of an unofficial leak, nor was it improperly disclosed in an unofficial setting by careless agents."  Having allowed "agents and confidential informants testify at trial in open court about the identity and activities of those confidential informants," the Ninth Circuit concludes that the government "may no longer refuse to confirm or deny" the existence of records concerning that informant.  However, the Ninth Circuit notes that "[t]his is not to say that the DEA is now required to disclose any of the particular information requested by [plaintiff]," and remands the matter to the district court to "determine whether the contents, as distinguished from the existence, of the officially confirmed records may be protected from disclosure under the DEA's claimed exemptions."  

Roth v. DOJ, 642 F.3d 1161 (D.C. Cir. 2011) (Tatel, J.).  Holding:  Affirming, in part, the district court's decision that the FBI properly withheld certain information pursuant to Exemptions 7(C) and 7(D); and reversing, in part, the district court's approval of the FBI's Glomar response and certain information withheld pursuant to Exemption 7(D); and remanding for further proceedings.  The D.C. Circuit concludes that, for the most part, the FBI properly asserted Exemption 7(D) to protect "local law enforcement agencies; informants who have been assigned confidential source symbol numbers; third parties without source symbol numbers who nonetheless provided information under an express assurance of confidentiality; and third parties who provided information under an implied assurance of confidentiality."  Here, the D.C. Circuit finds that "the FBI has generally struck an appropriate balance, publicly explaining to the extent that it can why it has concluded that certain sources provided information under an express or implied assurance of confidentiality and then relying on in camera judicial review to confirm its conclusions."  However, the D.C. Circuit identifies "two instances in which the FBI's stated explanation for redacting information under Exemption 7(D) fails to correspond to the information actually contained in the documents."  Because the FBI also relied on Exemptions 6 and 7(C) to withhold that same information, the D.C. Circuit orders the district court on remand to "first determine which portions of the two paragraphs fall within Exemptions 6 and 7(C) and then order the FBI to produce all segregable, non-exempt information." 

Prudential Locations LLC v. HUD, No. 09-16995, 2011 WL 2276206 (9th Cir. June 9, 2011) (Berzon, J.).  Holding:  Vacating the district court's grant of summary judgment to HUD and remanding the matter for further proceedings.  The Ninth Circuit acknowledges "HUD's worry that releasing the names of persons who report suspected illegal activity will have a chilling effect on the ability of agencies to investigate legal violations."  Although HUD admits that Exemption 7(D) is not applicable in the instant case, the Ninth Circuit observes that "if HUD is worried about not discouraging future complainants, it might consider implementing confidentiality procedures that satisfy the Exemption 7(D) dictates."  The Ninth Circuit also notes that invoking Exemption 7(C) might be appropriate given that the "exemption  requires less from the government to justify withholding information than Exemption 6, both in terms of the likelihood that an invasion will result and in determining whether such an invasion would be 'unwarranted.'"

District Court Decisions

Braga v. FBI, No. 12-139, 2012 WL 6644356 (D.D.C. Dec. 21, 2012) (Boasberg, J.).  Holding: Granting FBI's motion for summary judgment.  The court notes that plaintiff does not challenge withholdings under Exemption 7(D) where the FBI relied on an express promise of confidentiality, instead he only challenges withholdings based upon an implied assurance of confidentiality. However, the court reviews each page contested and notes that where Exemption 7(D) was invoked, Exemption 7(C) was also invoked.  Because the court has already determined that Exemption 7(C) was properly applied, it declines to address whether Exemption 7(D) was also properly applied. 

Georgacarakos v. FBI, No. 11-1655 (JDB), 2012 WL 6210119 (D.D.C. Dec. 12, 2012) (Bates, J.). Holding: Granting defendant's motion for summary judgment.The court finds that the circumstances indicate an implied assurance of confidentiality where "the topics of the interviews include the murder itself as well as events leading to and following after the murder, what is described as 'an extremely violent stabbing of a prison inmate by other inmates.'"  The court also noted that information about and from a specific third party was protected because "the FBI expressly granted confidentiality by promising him that neither his identity nor the information he provided would be disclosed, and by inserting the term 'Protect Identity' in the body of the FD-302."  Despite the plaintiff's arguments to the contrary, "Exemption 7D permits the FBI to withhold not only the source's identity but also the information provided by that source."

ACLU of N.J.  v. DOJ, No. 11-2553, 2012 WL 4660515 (D.N.J. Oct. 2, 2012) (Salas, J.).  Holding: Granting defendants' motions for summary judgment; denying plaintiff's motions for summary judgment.  The court notes that plaintiff does not contest the applicability of these exemptions and accordingly grants summary judgment in favor of the defendants with respect to them.

ACLU v. DOJ, No. 09-0642, 2012 U.S. Dist. LEXIS 137204 (W.D. Wash. Sept. 21, 2012) (Lasnik, J.).  Holding:  Ordering the defendant to remove certain redactions and produce certain documents to plaintiff and finding that for the remaining redactions, no further disclosures are necessary.  The court orders the release of information that references a place, but "does not reflect information shared by foreign partners, disclose the existence of a foreign partner relationship, or suggest an express or implied promise of confidentiality."

Hetzler v. Record/Info.Dissemination Section, FBI, No. 07-6399, 2012 WL 3886367 (W.D.N.Y. Sept. 6, 2012) (Telesca, J.).  Holding: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment; directing defendant to re-process and re-release specific documents withheld under Exemptions 1, 6, 7(C), and 7(D).  The court upholds protection of confidential source file numbers and symbols, as well as information provided by a foreign law enforcement authority under an express grant of confidentiality.  While the plaintiff "has waived any demand for identifying information as to confidential informants" the court construes plaintiff's pro se papers "broadly" and interprets "them as arguing that [Exemption 7(D)] has been asserted in an over broad manner to redact information supplied by a confidential source on various pages." "In light of the age of these documents, and the fact that they have been unclassified by the FBI, the Court cannot discern in Defendants' moving papers a sufficient justification for redacting the information provided by the confidential foreign source."  The court concludes that the "[d]efendants have failed to make a 'specific showing of how the remaining information would identify the source.'"

Brown v. FBI, No. 10-1292, 2012 WL 2786292 (D.D.C. July 10, 2012) (Lamberth, J.). Holding:  Denying defendant's motion to dismiss; but granting defendant's motion for summary judgment on the basis that it conducted an adequate search, and properly withheld certain information pursuant to Exemptions 3, 7(C), 7(D) and 7(E); and denying plaintiff's motion for sanctions as well as his motion to supplement his motion for sanctions.  As an initial matter, the court notes that the information at issue satisfies the Exemption 7 threshold as it "was clearly gathered for the purpose of law enforcement."  Although the court finds lacking the FBI's "vague assertion" that disclosure of identifying and investigative information "would 'have a chilling effect on the activities and cooperation of those and other future FBI confidential sources,'" it "uphold[s] its precedent of implying confidentiality to sources who provide information about drug crimes" and concludes that the information was properly withheld pursuant to Exemption 7(D). 

Miller v. DOJ, No. 05-1314, 2012 WL 2552538 (D.D.C. July 3, 2012) (Lamberth, J.).  Holding:  Concluding that plaintiff exhausted his administrative remedies with regard to fees assessed by the FBI; and granting defendant's renewed motion for summary judgment on the basis that it properly withheld certain information pursuant to Exemptions 1, 3, 5, 7(C), 7(D), 7(E) and 7(F).  Observing that plaintiff made no legal objection, the court finds that the State Department properly invoked Exemption 7(D) to protect a source who had provided information regarding plaintiff's drug trafficking.  "Regardless of whether an express fear of retaliation was documented, the Court . . . uphold[s] its precedent of implying confidentiality to sources who provide information about violent crimes."  Although absent evidence of an express agreement, the court declines to find an express promise of confidentiality with respect to certain FBI investigatory records, the court "infer[s] confidentiality due to the nature of the FBI's relationship to foreign law enforcement authorities."  Segregability: Given the FBI's explanation that "'once the agency receives information from a confidential source during the course of a legitimate criminal investigation . . . all such information obtained from the confidential source receives protection,'" the court finds no portions of the documents withheld by the agency under Exemption 7(D) are segregable.

Taccetta v. FBI, No. 10-6194, 2012 U.S. Dist. LEXIS 90683 (D.N.J. June 29, 2012) (Thompson, J.).  Holding:  Granting the FBI's motion for summary judgment on the basis that it properly withheld information pursuant to Exemptions 6, 7(C), 7(D) and 7(F); and denying plaintiff's cross-motion for an in camera inspection and to strike the FBI's declaration.  The court holds that the FBI properly asserted Exemption 7(D) to "protect the name and identifying information of a third party who was interviewed during the FBI investigation [of plaintiff] under a grant of confidentiality."

McRae v. DOJ, No. 09-2052, 2012 WL 2428281 (D.D.C. June 27, 2012) (Leon, J.).  Holding:  Denying without prejudice defendants' motion for summary judgment on the basis that it failed to discuss EOUSA's search for responsive records or EOUSA's justification for withholding certain information under Exemption 7(C), and where it did not supply information sufficient to support ATF's claim of Exemption 7(D); granting defendants' motion for summary judgment as to the adequacy of ATF's search and its claims of Exemptions 3, 7(C) and 7(E).  The court concludes that ATF has not supported its assertion of an implied assurance of confidentiality under Exemption 7(D) where its "declaration is silent . . . as to the confidential source's relationship to or knowledge of plaintiff's criminal activities."  The court finds that the declaration "fails to link plaintiff to 'notoriously violent' activities, such as gang-related murder, . . . or violent acts of retaliation for witnesses' cooperation with law enforcement, . . . or any other circumstances under which an assurance of confidentiality can be implied."

Island Film, S.A. v. U.S. Dep't of the Treasury, No. 08-286, 2012 WL 2389990 (D.D.C. June 26, 2012) (Roberts, J.).  Holding:  Granting, in part, defendant's motion for summary judgment on the basis that it properly withheld certain information pursuant to Exemptions 4, 5, 6, 7(C) and 7(D) and conducted a reasonable search, the adequacy of which was not challenged by plaintiff; ordering defendant to provide additional submissions to justify withholding information for which it invoked Exemption 2, which is precluded by Milner, and to support certain withholdings under Exemptions 7(D) and 7(E); and directing defendant to provide segregbility analysis for certain specific documents withheld in full, but determining that defendant released all reasonably segregable portions from the remaining documents.  The court determines that Treasury properly asserted Exemption 7(D) to withhold "blocked asset reports filed under 31 C.F.R. § 501.603."  The court finds that the agency's regulation, 31 C.F.R. § 501.603(a)(2), establishes that there is an express promise of confidentiality with respect to these reports.  However, the court finds that Treasury has not demonstrated that Exemption 7(D) applies to "correspondence from a confidential source" that was purportedly drafted under an express promise of confidentiality.  The court concludes that "[b]ecause the act [at issue] is economic in nature and not inherently violent, providing information regarding sanctions violations is more closely analogous to providing information on computer crimes than to providing information about rebellion or insurrection, drug trafficking or terrorism."  The court also finds that Treasury's "assurance that it generally 'treats such correspondence' . . . as confidential is insufficient to warrant an inference that it provided such an assurance for the correspondence that is at issue here."  Accordingly, the court orders Treasury to supplement its submissions with regard to these withholdings. 

Citizens for Resp. & Ethics in Wash. v. DOJ, No. 11-592, 2012 WL 2354353 (D.D.C. June 8, 2012) (Leon, J.). Holding:  Granting defendant's motion for summary judgment on the basis that it properly withheld the requested materials categorically under Exemptions 6 and 7(C), as well as Exemptions 2, 3, 7(D), and 7(E).  The court holds that the FBI properly invoked Exemption 7(D) to withhold the identities of informants who provided information under express and implied assurances of confidentiality in relation to its high profile political corruption investigation involving "'charges of conspiracy, fraud, and tax evasion.'"  Considering the FBI's declarations which set forth potential harms in disclosure, "the continuing nature of the investigation, the ongoing relationship between the FBI and the sources, . . . and the potential 'chilling effect' of disclosure on current and future sources, . . . [the court] finds that the information was furnished on a confidential basis and is, therefore, exempt from disclosure." 

Bloomer v. DHS, No. 11-35, 2012 U.S. Dist. LEXIS 62543 (D. Vt. May 3, 2012) (Reiss, J.) .   Holding:  Granting DHS's motion for summary judgment on the basis that it properly withheld information pursuant to Exemptions 3, 6, 7(C), 7(D) and 7(E).  The court concludes that DHS properly asserted Exemption 7(D) to withhold information pertaining to a deceased confidential informant.  As an initial matter, because "DHS has not submitted the sort of 'probative evidence . . . such as . . . an official's personal knowledge about that source' that is generally required for express confidentiality," the court notes that it will review the Exemption 7(D) withholdings to ascertain whether an assurance of confidentiality can be implied.  The court then finds that the convicted drug traffickers' "contacts with the drug trade, and possibly to organized crime would likely have led an informant to require an assurance of confidentiality."  Furthermore, the court determines that "[t]he fact that both [the subject of the request] and the informant are now deceased does not alter this analysis." 

Lewis v. DOJ, No. 09-746, 2011 WL 5222896 (D.D.C. Nov. 2, 2011) (Walton, J.).  Holding:  Granting, in part, defendant's renewed motion for summary judgment based on the adequacy of EOUSA's and the Office of Professional Responsibility's (OPR) searches, and the propriety of OPR's assertion of Exemptions 5 and 6 as well as EOUSA's and DEA's invocation of Exemptions 7(C) and 7(D); and denying summary judgment as to four pages of records referred from OPR to EOUSA, and OPR's reliance on Exemption 2.  The court treats "plaintiff's statement that 'he does not seek . . . information about informants and their names' . . . as a concession that the DEA properly has withheld 'source-identifying and source-supplied investigative information' under Exemption 7(D)."

Torres-Montalvo v. Keith, No. 11-161, 2011 WL 5023271 (S.D. Tex. Oct. 17, 2011) (Owsley, Mag.).  Holding:  Denying plaintiff's motion brought pursuant to 5 U.S.C. § 552(b)(7)(D) to seal court opinions related to his habeas corpus petition; and noting that "the Freedom of Information Act is inapplicable to decisions issued by federal courts and any argument to refrain from any issuance of an opinion based on § 552(b)(7)(D) fails" 

Banks v. DOJ, No. 06-1950, 2011 WL 4448602 (D.D.C. Sept. 26, 2011) (Sullivan, J.).  Holding:  Granting partial summary judgment to defendant based on plaintiff's failure to exhaust his administrative remedies for two requests and on the propriety of defendant's withholdings under Exemptions 6 and 7(C); and denying, without prejudice, defendant's motion for summary judgment for information withheld pursuant to Exemptions 7(D) and 7(E).  Based upon the current record, the court finds that it "cannot determine whether the USPIS properly has withheld information under Exemption 7(D)," because "[t]he declarant neither offers 'probative evidence that the source[s] did in fact receive an express grant of confidentiality,' nor describes circumstances which would support an inference of confidentiality."

Rimmer v. Holder, 10-1106, 2011 U.S. Dist. LEXIS107883 (M.D. Tenn. Sept. 22, 2011) (Trauger, J.).  Holding:  Granting summary judgment to defendants based on the propriety of their withholdings.  With respect to defendants' "relatively few invocations of Exemption 7(D)," the court gives no weight to plaintiff's assertion that "he has become aware of the names of the individuals that the defendants seek to protect through redaction, along with some of the information that they provided, and that most of this information is contained in state law enforcement files that should have been disclosed at the time of his trial."  Rather, the court finds that "[i]t is well settled . . . that the identity of confidential informants and the information they provide is to be protected under FOIA, even if 'a confidential source is later revealed.'"

Adionser v. DOJ, No. 10-27, 2011 U.S. Dist. LEXIS105035 (D.D.C. Sept. 15, 2011) (Leon, J.).  Holding:  Granting summary judgment in favor of defendants based on the adequacy of their searches and the propriety of their exemption claims.  The court determines that DEA and EOUSA properly asserted Exemption 7(D) to protect information withheld based on an express grant of confidentiality where their submissions "refer to notations on the withheld documents – specifically the EOUSA's 'CI' notation and the DEA confidential informant code."  The court notes that "[s]uch notations provide probative evidence that the source received an express grant of confidentiality."  Additionally, the court finds that, with regard to information withheld pursuant to an implied grant of confidentiality, the assertion of Exemption 7(D) was appropriate because, based on the violence inherent with illicit drug trafficking, "[i]t is reasonable to conclude that these sources disclosed information in confidence due to the fear of reprisal." 

Kortlander v. BLM, No. 10-132, 2011 U.S. Dist. LEXIS 103264 (D. Mont. Sept. 13, 2011) (Cebull, J.).  Holding:  Upon conducting an in camera review, granting summary judgment to defendant based on its claims of exemption and the adequacy of its search.  The court concludes that BLM properly asserted Exemption 7(D) to protect "names, identifiers, and information provided by confidential sources" based on an express promise of confidentiality. 

McGehee v. DOJ, No. 01-1872, 2011 WL 3375532 (D.D.C. Aug. 5, 2011) (Kessler, J.).  Holding:  Granting, in part, defendant's motion for summary judgment with respect to the adequacy of its search and its withholdings pursuant to Exemptions 3, 7(C), 7(D), and 7(E); and denying, in part, defendant's motion with respect to the adequacy of its Vaughn Index.  The court holds that the FBI properly invoked Exemption 7(D) to withhold information related to two sources who were given express promises of confidentiality.  The court rejects plaintiffs' contention that the FBI presented insufficient evidence to demonstrate that these individuals were promised confidentiality, because the FBI's "declarant had no personal knowledge of what assurances were given and that the phrases 'protect identity,' 'confidential source,' and 'In confidence' [noted on the records] 'may have been based on an FBI agent's misunderstanding of the circumstances . . . or were simply part of a bureaucratic routine.'"  The court finds instead that "[p]laintiffs' claims are simply too speculative to overcome the presumption of good faith accorded Defendant's affidavit." 

The court also concludes that the FBI properly asserted Exemption 7(D) to withhold information related to individuals who "gave the FBI information under an implied assurance of confidentiality."  The court rejects plaintiffs' argument that "because the informants' fear of danger may have subsided, they no longer are entitled to an implied promise of confidentiality," finding that "[p]laintiffs point to no authority" for such a claim.  Additionally, the court likewise dismisses as "entirely speculative and unpersuasive" plaintiffs' assertion that "'some of the interviews raise questions about the validity of any confidentiality agreement because they were carried out under conditions suggesting duress.'" 

Moffat v. DOJ, No. 09-12067, 2011 WL 3475440 (D. Mass. Aug. 5, 2011) (Casper, J.).  Holding:  Granting summary judgment to defendants based on adequacy of their searches and withholdings; denying plaintiff's request for attorney's fees and costs with respect to DEA and ATF, but permitting him leave to file a memorandum regarding his entitlement to fees with respect to his claim against the FBI.  The court concludes that the FBI correctly asserted Exemption 7(D) to protect confidential sources.  The court finds that the FBI properly protected identifying information related to "sources who provided information under an 'implied' assurance of confidentiality" because "[t]hese individuals, given the nature of the information provided, 'would reasonably fear that disclosure of their identit[ies] would place them in danger.'"  Likewise, the court concludes that the FBI properly redacted "information provided by [two] individuals on the basis of an 'express' assurance of confidentiality," noting that "given the content of these investigations, even under an 'implied' assurance of confidentiality the FBI would be permitted to withhold these records as both individuals 'would reasonably fear that disclosure of their identit[ies] would place them in danger.'"

ACLU of Wash. v. DOJ, No. 09-0642, 2011 WL 1900140 (W.D. Wash. May 19, 2011) (Lasnik, J.).  Holding:  Granting, in part, and denying, in part, defendants' motion for reconsideration; permitting government to supplement its Vaughn index with respect to certain withholdings prior to reviewing the contested documents in camera; and concluding that defendants provided an insufficient basis for withholding certain information pursuant to Exemption 7(E).  The court allows defendants additional time to substantiate their assertion that information contained on a government form and related documents that would "reveal the names of foreign partners which share and exchange information with TSC" is protected pursuant to Exemption 7(D).

ACLU of Wash. v. DOJ, No. 09-0642, 2011 WL 887731 (W.D. Wash. Mar. 10, 2011) (Lasnik, J.).  Holding:  Granting in part defendant's motion for summary judgment and ordering supplemental Vaughn index or disclosure.  With regard to document withheld in full which contained information "provided by a foreign government under express and implied assurances of confidentiality," the court finds that "[t]he FBI has not alleged, much less shown, that the information was compiled 'in the course of a criminal investigation' or 'lawful national intelligence investigation.'"  Therefore, the court concludes that the FBI "has failed to justify the nondisclosure of the information provided by the confidential source under Exemption 7(D)."  Additionally, the court determines that the FBI did not sufficiently justify its application of Exemption 7(D) to "letters from the FBI to other law enforcement agencies identifying possible unauthorized uses of the VGTOF database and requesting an investigation" where the source of the information is identified in general terms, some of the information provided by that source has been disclosed, and there is no indication that the source requested or received a promise of confidentiality.  The court also concludes that Exemption 7(D) is not appropriate to withhold a printout provided by a source in the course of a criminal investigation because the "[t]here is no indication that the author requested confidentiality or believed that his communication would be maintained in confidence." 

Lazaridis v. DOJ, No. 09-1177, 2011 WL 652469 (D.D.C. Feb. 24, 2011) (Collyer, J.).  The court concludes that the FBI has not justified its assertion of Exemption 7(D) to protect information that it claims was provided by a foreign government agency under an express grant of confidentiality where the declarant "does not claim to have any personal knowledge of the agreement and he has presented no probative evidence of such an agreement."  Additionally, the court finds that the FBI failed to provide a sufficient factual basis to demonstrate that that it properly withheld "the identity of and information supplied by an individual 'during the course of [plaintiff's] investigation'" under an implied grant of confidentiality.  The court finds that the FBI's "generalized statement" that "the 'individual . . .  provid[ed] sensitive and secretive information involving [plaintiff] which would reasonably raise fear of retaliation if his/her identity were revealed" "could apply to any law enforcement investigation."  The court observes that "[i]t is unknown what relationship the source had to [plaintiff] and his or her knowledge of any alleged activity from which a reasonable fear of retaliation may be found."  Moreover, the court further notes that "[a]n investigation of parental kidnapping without more does not seem to fit within the narrow category of cases where confidentiality is presumed."  The court also finds that Exemption 7(D) is inapplicable to information provided to an FBI special agent by a local sheriff's office.  For one, the court notes the sheriff's department "is identified and, thus, not confidential."  Additionally, the FBI "has not stated any facts from which the Court can find that 'the particular source [Sheriff's Department] spoke [or conveyed information] with an understanding that the communication would remain confidential.'" 

Hodge v. FBI, No. 08-403, 2011 WL 532121 (D.D.C. Feb. 14, 2011) (Leon, J.).  The court concludes that the FBI properly asserted Exemption 7(D) to protect the identities of confidential sources who provided information to the FBI under express and implied grants of confidentiality.  With respect those given an express promise of confidentiality, the court finds that the FBI "detail[ed] the circumstances of that promise" and that the annotations contained in the investigative reports "provide 'probative evidence that the source did in fact receive an express grant of confidentiality.'"  Likewise, the court determines that the FBI explanations detailing the "brutality of the underlying crimes" investigated and how "the information provided by the third parties was 'specific' and 'singular in nature' and led to plaintiff's arrest" is sufficient to support withholding information provided pursuant to an implied grant of confidentiality.  The court finds that "[d]ue to the violent nature of the crimes, it is reasonable to conclude that these sources disclosed information in confidence due to the fear of reprisal."

Schoenman v. FBI, No. 04-2202, 2011 WL 446857 (D.D.C. Feb. 9, 2011) (Kollar-Kotelly, J.).  The court determines that the FBI properly withheld information pertaining to confidential sources where it "credibly explains, in a reasonably detailed and non-conclusory manner, that the information at issue in each instance was received in connection with an express grant of confidentiality and describes how the public disclosure of such information would have a chilling effect on the cooperation of other sources and thereby would hinder its ability to gather confidential information." 

Sussman v. U.S. Marshals Serv., No. 03-610, 2010 U.S. Dist. LEXIS 90723 (D.D.C. Sept. 1, 2010) (Kennedy, J.). Based on its in camera review, the court concludes that U.S. Marshals Service (USMS) properly invoked Exemption 7(F) to protect names and identifying information of third parties as well as "'information provided by a third-party individual that could pose a potential threat to a judge.'"

Mosby v. Hunt, No. 09-1917, 2010 WL 2794250 (D.D.C. July 15, 2010) (Bates, J.). After conducting an in camera review of a one-page memorandum and one-page form pertaining to a request for a prison transfer, the court finds that BOP properly redacted information about plaintiff pursuant to Exemption 7(F). The court states that "[b]y its terms, exemption 7(F) protects 'any individual'" and here "[p]laintiff does not appear to have waived the protection contemplated by [that] exemption." The court concludes that release of the "information could 'jeopardize the safety of individual(s),' including plaintiff."

Fischer v. DOJ, No. 07-2037, 2010 WL 2745811 (D.D.C. July 13, 2010) (Huvelle, J.). The court determines that the FBI properly invoked Exemption 7(F) to protect identities of confidential sources. The court finds insufficient plaintiff's assurances that "he does not personally pose a threat to any individual, no individual's life or physical safety can be put at risk by releasing the records." The court observes that the FBI's declaration identifies as a harm reports of death threats against the protected sources by plaintiff and other individuals. The court further notes that, even if it were to accept plaintiff's denials that he has made such threats, "he does not challenge [the FBI's] assertion that other individuals have threatened the confidential sources in question."

Concepcion v. FBI, No.07-1766, 2010 WL 1189832 (D.D.C. Mar. 30, 2010) (Urbina, J.). Defendant properly used this exemption to withhold the identify of and information provided by a cooperating witness. Defendant's affidavit explains that the withheld information is "'singular in nature,' and that the release of the information 'could reveal the informant's identity.'"

Banks v. DOJ, No.06-1950, 2010 WL 1172593 (D.D.C. Mar. 26, 2010) (Sullivan, J.) (parties' motions for summary judgment denied without prejudice). Exemptions 2, 3, 5, 6, 7(C), 7(D), & 7(E). The court finds that USPIS has not adequately justified its decision to invoke these exemptions to withhold records. Defendant's Vaughn index "falls short . . . both in its failure to discuss the nature or type of information withheld and its tendency to restate the statutory language of the exemptions claimed as its sole justification for withholding the relevant information. The accompanying declaration offers no additional information to compensate for the Vaughn index's deficiencies." USPIS's declaration repeatedly fails to establish that its withholdings were consistent with statutory standards.

Span v. DOJ, No.08-2183, 2010 WL 1007858 (D.D.C. Mar. 22, 2010) (Kennedy, J.). "On their face, these exemptions justify withholding the agency's assigned identification code number for a [confidential source], and the information that was gleaned from the [confidential source]."

King v. DOJ, No.08-1555, 2010 WL 935420 (D.D.C. Mar. 17, 2010) (Kennedy, J.). The court declines plaintiff's request that it conduct an in camera review to ascertain whether DEA applied this exemption correctly. "In the absence of any cause shown, the Court will accord to the agency declaration the good faith to which it is entitled. . . .."

Barnett v. U. S. Dep't of Labor, No.09-146, 2010 WL 985225 (E.D. Tex. Mar. 15, 2010) (Hines, Mag. J.). Because the witnesses were given express assurances of confidentiality, Exemption 7(D) applies, but only in order to protect information protected under Exemption 7(C) "plus any substantive factual information that reasonably can be expected to disclose the identity of a witness. The court has conducted a segregability analysis, and has determined that some of the withheld factual information reasonably could be used to link information to a confidential source whereas some could not." A confidential witness's handwritten statement can be withheld in full since "handwriting analysis could be used to link the statement to its source." The transcribed version, on the other hand, can be released in part.

Sellers v. DOJ, No.08-0840, 2010 WL 545939 (D.D.C. Feb. 17, 2010) (Kennedy, J.). Though the sources used by the FBI in this case provided information only under implied grants of confidentiality, "[c]ourts have held that the violence and risk of retaliation attendant to drug trafficking warrant an implied grant of confidentiality to a source." Plaintiff alleges that the withheld information has been released into the public domain, but he has not met his burden of proof on this issue, as he has "fail[ed] to point to any specific record, document, or information identical to what is being withheld under the claimed exemption. Accordingly, there is no showing from which the Court can conclude with any confidence that the information sought by plaintiff truly is in the public domain." The FBI also properly asserted Exemption 7(D) to withhold information it received from South Carolina law enforcement officials. "The message printed on [the South Carolina] documents suggests that [the state agency] shared information with the FBI only on the understanding that the contents would be kept confidential."

Lasko v. DOJ, No.08-1850, 2010 WL 537551 (D.D.C. Feb. 17, 2010) (Friedman, J.). Defendant DEA used this exemption to withhold material provided by a confidential source acting under an implied grant of confidentiality. "Courts have held that the violence and risk of retaliation attendant to drug trafficking warrant an implied grant of confidentiality to a source who provides information to investigators."

Blackwell v. FBI, No.09-661, 2010 WL 143714 (D.D.C. Jan. 15, 2010) (Collyer, J.). Defendant properly asserted Exemption 7(D) "to protect the identity of a foreign government agency which provided information under an express assurance of confidentiality." The FBI's declaration establishes that disclosure of the agency's identity "would have a chilling effect on the FBI's future relationship with this foreign government agency."

Adamowicz v. IRS, No.08-10255, 2009 WL 4277237 (S.D.N.Y. Nov. 24, 2009) (Preska, C.J.). Defendant appropriately applied this exemption to protect the identity of a source who provided information to the government after being given verbal assurance by the IRS "that his or her identity would be kept confidential." Plaintiffs, contrary to their claims, have not established that defendant has revealed the source's identity, but even if the agency had done so, "'[t]he privilege belongs to the beneficiary of the promise of confidentiality and continues until he or she waives it.'"

Wolfson v. United States, No.09-0304, 2009 WL 4186045 (D.D.C. Nov. 30, 2009) (Huvelle, J.). Prior cases involving crimes of the sort for which plaintiff was investigated (including racketeering, extortion, and loan sharking) have held that these crimes are sufficiently serious that an assurance of confidentiality to sources could be inferred. Plaintiff's claim to be innocent of the crimes for which he was convicted, or his claim that he knows the identity of the source and the government has disclosed that identity, does "nothing . . . to undermine the presumption of veracity afforded to an agency's supporting declaration."

United Am. Fin., Inc. v. Potter, No.06-1023, 2009 WL 3583567 (D.D.C. Nov. 3, 2009) (Bates, J.). The Court notes that the Inspector General Act bars identification of the identity of an employee who makes a complaint or provides information to investigators without that employee's consent. This, coupled with the pendency of the proceedings, is enough to support an implied grant of confidentiality for purposes of Exemption 7(D).

Zavala v. DEA, No.08-2215, 2009 WL 3617481 (D.D.C. Nov. 4, 2009) (Friedman, J.). DEA has established that it received information responsive to plaintiff's request from state, local, or foreign agencies under express grants of confidentiality. "[T]his showing is sufficient to justify its decision to withhold this information under Exemption 7(D)." DEA also received information concerning plaintiff under implied grants of confidentiality. "Courts have held that the violence and risk of retaliation attendant to drug trafficking warrant an implied grant of confidentiality to a source who provides information to investigators."

Smith v. FBI, No.07-1183, 2009 WL 3347186 (D.D.C. Oct. 19, 2009) (Roberts, J.). Defendant has now provided sufficient justification of its claim that there was an implied grant of confidentiality to sources it utilized in its investigation. The FBI has asserted that "'plaintiff has a propensity for violence,'" and informed the court that plaintiff has made threats against his victim and a witness. This additional information, along with the fact that plaintiff was prosecuted for child sexual exploitation, are enough to justify FBI's use of Exemption 7(D) "based on an implied grant of confidentiality." Furthermore, "[p]laintiff's general claim of prior disclosure through trial testimony fails to carry his burden of identifying with specificity the exact testimony that is duplicated in withheld materials."

North v. DOJ, No.08-1439, 2009 WL 3113243 (D.D.C. Sept. 30, 2009) (Kollar-Kotelly, J.). Records pertaining to the confidential informant who testified against plaintiff are also protected pursuant to Exemption 7(D). "Under Exemption 7(D), any information that a law enforcement agency receives from a confidential source in the course of a criminal investigation is protected from disclosure. . . . Moreover, this protection continues even after a source has been publicly identified, and the agency does not waive its right to assert this exemption when the confidential source testifies in open court."

Roth v. DOJ, No.08-822, 2009 WL 3019781 (D.D.C. Sept. 23, 2009) (Huvelle, J.). After conducting an in camera inspection, the court finds that "the majority of the material withheld under Exemption 7(D) was provided to the FBI pursuant to express assurances of confidentiality or under circumstances strongly implying that an assurance of confidentiality was understood."

King v. DOJ, No.08-1555, 2009 WL 2951124 (D.D.C. Sept. 9, 2009) (Kennedy, J.). Defendant EOUSA appropriately invoked Exemption 7(D) to withhold the identities of confidential sources and information they provided. The fact that some of these sources allegedly testified against plaintiff at his criminal trial does not mean that Exemption 7(D) does not apply. Furthermore, "[plaintiff] has no way of knowing whether or not [all the confidential sources protected by EOUSA testified against him]; all he could know is that at least some confidential sources testified about some of the information provided." In any event, "[plaintiff] has not '"point[ed] to specific information in the public domain that appears to duplicate that being withheld,'" as the law requires him to do before a court can find that the exemption has been waived by the public domain doctrine."

Bretti v. DOJ, No.08-450, 2009 WL 2371508 (N.D.N.Y. Aug. 4, 2009) (Hurd, J.). The FBI properly withheld the identities of confidential sources pursuant to this exemption, notwithstanding the fact that some of these sources may have testified against plaintiff at his criminal trial. The Court stated that "information furnished by a confidential source requires no balancing test and no consideration of the public interest in disclosure, if such information may reveal the confidential source's identity." Additionally, "plaintiff has failed to show how his actions will benefit the public, as plaintiff brought this suit to benefit himself."

Calhoun v. DEA, No.08-01059 (N.D. Ohio June 25, 2009) (Limbert, Mag. J.). DEA appropriately withheld names of individuals mentioned by the subject of plaintiff's request in an interview with DEA, as well as sections of the interview that did not discuss plaintiff. However, DEA cannot withhold the entirety of the subject's interview on the basis of his status as a confidential source because plaintiff has shown that the subject testified against plaintiff at plaintiff's trial (a fact that has also been recognized by the Third Circuit Court of Appeals). Furthermore, the court disagrees with DEA's conclusion that "segregation would provide incomprehensible phrases to Plaintiff" and instead "finds that the information contained in DEA-6 can be released to Plaintiff in some segregable form." DEA is directed to make further disclosures as detailed by the court in its opinion.

Updated: February 2013
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