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MANNING v. DYE

STEVEN MANNING, Plaintiff,
v.
THOMAS DYE, et al., Defendants.



The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Steven Manning has sued the two Federal Bureau of Investigation agents, the United States, and a private individual for claims arising from their alleged fabrication and concealment of evidence in connection with prosecutions of Manning for murder and kidnapping. Manning was sentenced to death for the murder and to life imprisonment for the kidnapping, but both convictions have been overturned, and he is now a free man. The parties are engaged in discovery, and the case is set for trial in December of this year.

The federal defendants have produced in discovery a number of documents, many of them witness statements obtained by FBI agents, from which they have redacted text or that refer to the witness by some generic description rather than by name. The federal defendants claim the nondisclosures are justified by the need for confidentiality of references to a witness protection program and information that might disclose the identity of informants. Manning has moved to compel the defendants to produce unredacted versions of these documents and to identify the unidentified persons. The parties have submitted memoranda, and the Court held an in camera hearing*fn1 attended by the primary lawyer for the federal defendants and an in-house FBI lawyer, for the purpose of identifying the reasons for certain of the nondisclosures.

  1. Witness protection program nondisclosures

  After becoming a government informant, defendant Thomas Dye was admitted to a witness protection program. This was disclosed to Manning prior to his trial for murder, at which Dye testified, and it has likewise been disclosed by the federal defendants in discovery in the present case. The government nonetheless seeks to preclude disclosures of any references to or information about the witness protection program. It contends that if any information about the program — apparently including its existence — is given out, it might deter others from entering the program in the future or may otherwise compromise the program.

  The government has not made a serious effort to explain why disclosure of the particular information it redacted for this reason would pose a risk of any harm to the program. On the other hand, most of the redacted information is of minimal probative value — for example, information that identifies that the program exists. For the most part, Manning's need for the undisclosed information is minimal and does not outweigh the government's interest in confidentiality, weak though it may be. For this reason, the government need not disclose unredacted copies of documents 1340-41, 1353-54, 1355-56, 1415-16, 1522-25, 2386, 2401-02, 3222, and 3274-75.

  There are some instances, however, in which the relevance of the information relating to the witness protection program significantly outweighs the government's claimed need for confidentiality. On document 1414, the government is directed to disclose the last sentence of the third paragraph, but not the other redacted portions. This sentence provides the reason why Dye was placed in the program and includes a particular agent's claim of responsibility for getting Dye into the program. This information has a direct bearing on Manning's claim that the named defendants importuned Dye to fabricate information, which is more than sufficient to overcome the government's confidentiality interest.

  On the third page of document 1530-1533 and document 3378-3381 (these are duplicate copies of the same document), the government is directed to disclose the entire redacted paragraph, except for the name of the witness. The withheld information discloses a benefit accorded to Dye by the government, specifically, placement of a friend of his in the witness protection program. This information is directly relevant to critical issues in this case. The government has provided the Court with no information that would suggest that disclosure of the mere fact that this individual was placed in the program, or the other information withheld in this paragraph, would pose any risk to that person's safety, and we note in addition that no location information or personal identifiers are provided in these documents.

  Finally, on document 4416, the government need not disclose the withheld identification number or the withheld location information, but it must disclose the identity of the person for whose benefit a monetary deposit was being made.

  2. Confidential informant nondisclosures

  Nearly all of the other nondisclosures are justified by the federal defendants based on the common law privilege against disclosure of the identity of confidential government informants. See generally Roviaro v. United States, 353 U.S. 53 (1957). The purpose of this privilege is to protect the public interest in effective enforcement of the law; it is premised on the notion that persons who assist a government investigation may later be targeted for reprisal by those who were under investigation or their compatriots. See, e.g., Dole v. Local 1942, IBEW, 870 F.2d 368, 372 (7th Cir. 1989).

  The informer's privilege covers both the identity of the informant and the contents of his communications with the government, if those communications would tend to reveal his identity. Roviaro, 353 U.S. at 59-60; United States v. Herrero, 893 F.2d 1512, 1525 (7th Cir. 1990). "With the threat of reprisal real and unprotected against, well-intentioned citizens may hesitate or decline to assist the government in tracking down wrongdoers. . . . The most effective means of protection, and by derivation the most effective means of fostering citizen cooperation, is bestowing anonymity on the informant, thus maintaining the status of the informant's strategic position and also encouraging others similarly situated who have not yet offered their assistance." Dole, 870 F.2d at 372.

  When the government asserts the informer's privilege, it is not required to make a threshold showing that reprisal or retaliation is likely. Id. But the privilege is not absolute; "it yields when the identification of the informant or of a communication is essential to a balanced measure of the issues and the fair administration of justice." Id. (citing Roviaro, 353 U.S. at 60-61. To overcome the privilege, the party opposing it must show that his need for the information outweighs the need for confidentiality. Id. at 373. "The privilege will not yield to permit a mere fishing expedition, nor upon bare speculation that the information may possibly prove useful." Id. (citations omitted); see generally Herrero, 893 F.2d at 1525.

  A number of the redactions concern Dye's FBI code name. Because Dye's status as an informant has long been known to Manning, there is no reason to keep his code name confidential. Defendants are directed to disclose ...


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