which would interfere with enforcement proceedings and section
(b)(7)(B) which exempts information which would deprive a person
of a fair trial could not apply. If the investigation was not a
lawful national security intelligence investigation or a criminal
investigation with sufficient connection to enforcement,
information from a confidential source (as distinguished from the
identity of a confidential source) cannot be withheld under
section (b)(7)(D). Neither can section (b)(7)(E) be interpreted
to exempt disclosure of illegal investigative techniques since
Congress could not have intended that those remain concealed. The
information which will be exempt will not conceal the
questionable character of FBI practices but only prevent
unwarranted invasions of personal privacy ((b)(7)(C)), disclosure
of confidential sources ((b)(7)(D)), or danger to the safety of a
law officer ((b)(7)(F)). The slight increase in public knowledge
which would be gained by holding that these exemptions in section
(b)(7) do not apply to documents related to unwarranted FBI
investigations does not justify the harm to individual and
governmental interests which such a holding would entail. Our
holding, that all FBI investigatory records are exempt regardless
of the legality of the investigation if one of the requisite
harms listed in section (b)(7) is shown, reflects a sensitivity
to privacy and law enforcement interests while also assuring the
disclosure of all but the unnecessary details of FBI abuses.
Although we have held that the FBI does not need to show a law
enforcement justification for its investigation of Abrams in
order to invoke exemption 7, the FBI does need to show that one
of the specific harms listed in section (b)(7)(A)-(F) will result
if the information excised from documents 59 and 60 is disclosed.
The FBI claims that the deletions of the names of individuals
or institutions who provided the agency with information about
plaintiff are justified under exemption (7)(D) which protects
against the disclosure of the identity of a confidential source.
For the identity of the source to be exempt, the information from
the source must have been "acquired under an express assurance of
confidentiality or in circumstances where such an assurance may
reasonably be inferred." Maroscia v. Levi, 569 F.2d 1000, 1002
(7th Cir. 1977). The plaintiff complains that the defendants'
affidavits are not sufficient to qualify the sources as
confidential sources since the assertions "do no more than track
this language: no specific facts are offered to substantiate the
claim." A factual showing that those sources were actually given
an express or implied assurance of confidentiality is not
required, however, because, since this investigation apparently
began in the 1940's, "it is questionable, as a practical matter,
how the Department could ever make such a showing." Lamont v.
Department of Justice, 475 F. Supp. 761, 779 (S.D.N.Y. 1979). In
Maroscia v. Levi, the Seventh Circuit upheld the FBI's reliance
on section (b)(7)(D) even though the affidavit filed in that case
was as general as the one filed in this case, stating only that
the "`sources . . . were expressly or impliedly assured that the
information would be received confidentially.'" 569 F.2d at 1002.
Furthermore, an assurance of confidentiality can be reasonably
inferred from any exchange between a source and the FBI since the
agency's "`investigatory function depends for its existence upon
information supplied by individuals who in many cases would
suffer severe detriment if their identities were revealed.'"
Lamont v. Department of Justice, 475 F. Supp. at 779, quoting
Kaminer v. NLRB, 90 L.R.R.M. 2269, 2272 (S.D.Miss. 1975). The
plaintiff argues that, because the information in this case was
given to the FBI twenty-seven years ago, no detriment would be
suffered by the sources if their names were revealed at this
time. Plaintiff, however, misreads the decisions in Lamont and
Kaminer. In those cases, individual detriment was not a factor
which had to be present in a specific
case for the confidential source exemption to apply but a factor
to be considered in order to determine if confidentiality was
necessary to the particular agency's investigatory function in
general, and, therefore, could be presumed in a specific case.
Because of the nature of FBI investigations, confidentiality is
imperative to prevent embarrassment, harassment, or reprisals to
the source. A presumption of confidentiality is therefore
justified for FBI sources and in this case.
The confidential source exemption applies to local law
enforcement agencies as well as to individuals. Nothing in the
plain meaning of the word "source" or the legislative history
supports a distinction between individual and institutional
sources of information. Furthermore, the policy which justifies
the exemption for individuals also applies to institutions.
If the enforcement authority could not assure that
information furnished by entities such as state and
local law enforcement agencies would remain
confidential, it would be confronted with the
possibility of losing these valuable sources of
information — and, as a consequence, the federal
agency's investigatory operations would be affected
adversely. This is precisely the result that Congress
unequivocally sought to avoid.
Lesar v. United States Department of Justice, 636 F.2d 472, 491
The plaintiff argues that the confidential source exemption
should not be applied to law enforcement agencies officers if
withholding their identities would shield them from civil rights
liability for activities performed in bad faith. The bad faith of
the law enforcement officers involved in Abrams' case is not as
obvious as plaintiff argues. Although the FBI could not have
prosecuted Abrams nor the Chicago Police Department refused to
hire him simply on the basis of his membership in the Communist
Party without proof of his active adherence to its revolutionary
tenets, the unconstitutionality of simply compiling information
on Communist Party members and exchanging that information with
other law enforcement agencies without using it to disadvantage
the individual was not established in the 1950's and 1960's even
assuming it is clear today. Nothing more than information
gathering and dissemination is evident in documents 59 and 60.
This case at least illustrates the difficulty of evaluating the
good faith of agents and institutions years after the fact.
Furthermore, a "good faith" limitation to the exemption is
contrary to the congressional intent that the identity of
confidential sources be protected "without exception." Senate
Debate & Vote, May 30, 1974, reprinted in FOIA Source Book 333
(remarks of Senator Hart).
The FBI, however, has withheld the identities of individuals or
institutions who did not furnish the FBI with information; the
FBI furnished them with information. Although the FBI might argue
that, as a matter of policy, all of its contacts with other law
enforcement personnel or agencies should be exempt, that policy
is not reflected in exemption (7)(D) which protects the FBI's
confidential sources not the recipients of confidential
information from the FBI. The confidential source exemption,
therefore, cannot apply to the first deletion on page 2 of
document 59 or the first, third and fourth deletions in the body
of document 60. Since our in camera inspection indicates that the
deletions are of institutional names, the personal privacy
exemption cannot be relied upon either. We uphold, however, all
other deletions in documents 59 and 60 which the agency made
pursuant to section (b)(7)(D).
The FBI argues that the identity of its agents is exempt
because disclosure would "constitute an unwarranted invasion of
personal privacy." 5 U.S.C. § 557(b)(7)(C). "FBI agents do have
a privacy interest in the potential disclosure of their names in
connection with a FOIA request regarding a particular
investigation." Miller v. Webster, 483 F. Supp. 883, 887 (N.D.Ill.
1979), appeal pending, No. 79-1210 (7th Cir.). See also Maroscia
v. Levi, 569 F.2d 1000, 1002 (7th Cir. 1977). The
agents' privacy interest must be weighed against the public
interest which would be served by release of their names. Id. The
government in this case has failed to show anything more than the
"abstract potential" for harassment, annoyance, and interference
with future investigations which is present in any case where
agents' names may be revealed. See Miller v. Webster, 483 F. Supp.
at 888. The plaintiff, however, has failed to show any public
interest to be served by revealing the names. The public interest
in disclosure of FBI abuses is fully vindicated by disclosure of
the documents without the names of the FBI agents involved. Even
if the public has an interest in plaintiff's bringing a civil
rights action, compare NLRB v. Sears, Roebuck & Co.,
421 U.S. 132, 143 n. 10, 95 S.Ct. 1504, 1513 n. 10, 44 L.Ed.2d 29 (1975)
(the FOIA was not designed to benefit private litigants) with
Miller v. Webster, 483 F. Supp. at 887 (the vindication of
constitutional rights serves the public interest), plaintiff does
not have a cause of action against the FBI agents; documents 59
and 60 do not reveal any violations of constitutional rights.
Since there is no public interest in disclosure, the privacy
interest of the FBI agents is sufficient to require exemption.
For the reasons stated above, we grant plaintiff's motion for
summary judgment as to the first deletion on page 2 of document
59 and the first, third and fourth deletions in the body of
document 60. For all other deletions in documents 59 and 60, we
deny plaintiff's motion for summary judgment and grant summary
judgment for defendant.
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