Providence Journal v. United States
U.S. Court of Appeals for the First Circuit
Providence Journal v. United States
Opinion
USCA1 Opinion
December 17, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
____________________
No. 92-1166
No. 92-1166
PROVIDENCE JOURNAL COMPANY
PROVIDENCE JOURNAL COMPANY
AND GERALD M. CARBONE,
AND GERALD M. CARBONE,
Plaintiffs, Appellees,
Plaintiffs, Appellees,
v.
v.
UNITED STATES DEPARTMENT OF THE ARMY,
UNITED STATES DEPARTMENT OF THE ARMY,
Defendant, Appellant.
Defendant, Appellant.
____________________
____________________
ERRATA SHEET
ERRATA SHEET
The opinion of this Court issued on December 8, 1992, is ammended
as follows:
On cover under list of counsel "John S. Koppel, Assistant United
States Attorney", should be corrected to read "John S. Koppel,
Attorney, Civil Division, United States Department of Justice".
December 8, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
____________________
No. 92-1166
No. 92-1166
PROVIDENCE JOURNAL COMPANY
PROVIDENCE JOURNAL COMPANY
AND GERALD M. CARBONE,
AND GERALD M. CARBONE,
Plaintiffs, Appellees,
Plaintiffs, Appellees,
v.
v.
UNITED STATES DEPARTMENT OF THE ARMY,
UNITED STATES DEPARTMENT OF THE ARMY,
Defendant, Appellant.
Defendant, Appellant.
____________________
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
__________________________
____________________
____________________
Before
Before
Cyr, Circuit Judge,
Cyr, Circuit Judge,
_____________
Roney,* Senior Circuit Judge,
Roney,* Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
and Boudin, Circuit Judge.
_____________
____________________
____________________
John S. Koppel, Attorney, Civil Division, United States
John S. Koppel, Attorney, Civil Division, United States
_________________
Department of Justice, with whom Lincoln C. Almond, United States
Department of Justice, with whom Lincoln C. Almond, United States
__________________
Attorney, Stuart M. Gerson, Assistant United States Attorney General,
Attorney, Stuart M. Gerson, Assistant United States Attorney General,
________________
Leonard Schaitman, Lt. Col. Richard D. Rosen and Major Patrick W.
Leonard Schaitman, Lt. Col. Richard D. Rosen and Major Patrick W.
__________________ ___________________________ _________________
Lisowski were on brief for appellant.
Lisowski were on brief for appellant.
________
Joseph V. Cavanagh, Jr. with whom Michael DiBiase, Karen A.
Joseph V. Cavanagh, Jr. with whom Michael DiBiase, Karen A.
_________________________ _______________ _________
Pelczarski and Blish & Cavanagh were on brief for appellees.
Pelczarski and Blish & Cavanagh were on brief for appellees.
__________ ________________
____________________
____________________
____________________
____________________
*Of the Eleventh Circuit, sitting by designation.
*Of the Eleventh Circuit, sitting by designation.
CYR, Circuit Judge. This appeal is taken from a
CYR, Circuit Judge.
______________
district court judgment directing the United States Department of
the Army ("Army") to disclose to the Providence Journal Company
("Journal"), pursuant to a Freedom of Information Act ("FOIA")
request, numerous documents relating to an internal criminal
investigation into allegations against six officers of the Rhode
Island National Guard ("RING"). The Army contends that the
documents are protected from compelled disclosure under three
FOIA exemptions.
I
I
BACKGROUND
BACKGROUND
__________
During 1988, the Office of the Inspector General of the
Army ("IG") received four anonymous letters implicating six RING
officers in alleged misconduct punishable either by internal
disciplinary action or by court-martial under the Uniform Code of
Military Justice. See 10 U.S.C. 801-946 (1985 & Supp. 1992).
___
The Army Vice Chief of Staff ("VCOS") directed the IG to investi-
gate the charges against two "senior" officers and to submit a
report to the Army officer ("Army command") invested with the
authority to determine whether either disciplinary action or
court-martial was warranted. The allegations against the four
junior officers were referred to the National Guard Bureau.
In order to foster cooperation and curb possible fears
of reprisal or harassment, the IG's office, which has no subpoena
2
power, promises confidentiality as to both witness identity
and statement content "to the maximum extent possible,
particularly when it is specifically requested." Department of
Army Regulation ("DAR") 20-1, 1-15a. The IG interviewed
_
twenty-seven witnesses in the course of the investigation. Three
witnesses waived their right to confidentiality. In December
1989, the IG submitted a report ("IG Report"), which was
"approved" by the Army VCOS. Army regulations provide that
"approval" of an IG report does not connote official Army
adoption of its findings or recommendations. DAR 20-1, 3-1c.
_
The record reveals no further Army action on the IG Report.
In due course, the Journal and one of its reporters
filed an FOIA request for "all documents pertaining to the
Inspector General's investigation of the Rhode Island National
Guard." See 5 U.S.C. 552 (1990). The Army released a redacted
___
version of the IG Report, withholding several exhibits in
reliance on four FOIA exemptions. See id. 552(b)(5)
___ ___
(exemption for predecisional intra-agency memoranda), (6), (7)(C)
(exemptions to safeguard against unwarranted invasions of
privacy), and (7)(D) (exemption for information provided by a
"confidential source"). Following an unsuccessful administrative
appeal to the Army General Counsel, the Journal filed suit in the
United States District Court for the District of Rhode Island to
compel disclosure of the unredacted documents pursuant to 5
U.S.C. 552(a)(4)(B). The parties filed cross-motions for
summary judgment. The district court directed the Army to submit
3
a so-called Vaughn Index, see Vaughn v. Rosen, 484 F.2d 820, 824
______ ___ ______ _____
(D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), which lists
____ ______
the precise grounds for the Army's exemption claims with respect
to each redaction or withheld document, as follows:
A. IG Report
1 Identity of the six RING officers who
were targets of the investigation
[Exemptions 6 & 7(C)];
2,6 IG's conclusions as to whether each
allegation was substantiated or
unsubstantiated [Exemption 5];
3,5 IG's synopsis of each allegation and
findings of fact [Exemptions 5 & 7(D)];
4 Statements provided by confidential and
non-confidential witnesses [Exemptions 5
& 7(D)];
7 IG's final recommendations regarding
further disciplinary action [Exemption
5];
B. Full transcript of statement by Nonconfidential
source [Exemptions 5 & 7(D)];
C-E. Internal memoranda and directives between
Army VCOS and IG's Office [Exemptions 6, 7(C)
& 7(D)];
F-I. Four anonymous letters [Exemptions 6, 7(C) &
7(D)];
J. Travel vouchers [Exemptions 6, 7(C) & 7(D)].1
Following an in camera inspection of the unredacted documents,
__ ______
____________________
1Throughout the opinion, relevant portions of the IG Report
and exhibits are identified by reference to their Vaughn Index
numbers. The Army did not appeal from the order to disclose, in
their entirety, Vaughn Index B and J. See Providence Journal Co.
___ ______________________
v. Department of Army, 781 F. Supp. 878, 888-92 (D. R.I. 1991)
__________________
(Appendix A).
4
the district court granted partial summary judgment and directed
the Army to release the entire IG Report, excepting only the
names (and other identifying information) of the confidential
_____
sources (Vaughn Index A3, A4, A5) and the various intra-agency
memoranda (Vaughn Index C-E).2
II
II
DISCUSSION
DISCUSSION
__________
The FOIA was designed to expose the operations of
federal agencies to public scrutiny without endangering efficient
administration, as a means of deterring the development and
application of a body of "secret law." See Department of Air
___ __________________
Force v. Rose, 425 U.S. 352, 360-61 (1976);3 NLRB v. Sears,
_____ ____ ____ ______
Roebuck & Co., 421 U.S. 132, 153 (1975). As the FOIA presumes
______________
public entitlement to agency information, an agency which would
withhold information must establish its right to an FOIA
exemption. See 5 U.S.C. 552(a) (4)(B). The district court
___
must make a de novo determination as to the validity of the
__ ____
agency's exemption claim. See Department of Justice v. Reporters
___ _____________________ _________
Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989). FOIA
_______________________________
exemptions are construed narrowly, Department of Justice v.
________ ______________________
Julian, 486 U.S. 1, 8 (1988); Curran v. Department of Justice,
______ ______ _____________________
____________________
2The Journal does not challenge the district court ruling
relating to Vaughn Index C-E.
3Throughout the opinion, all citation references to agencies
or departments are to United States agencies or departments,
unless otherwise indicated.
5
813 F.2d 473, 473-74 (1st Cir. 1987), and any "[d]oubts are
customarily to be resolved in favor of openness." Irons v. FBI,
_____ ___
811 F.2d 681, 685 (1st Cir. 1987) [hereinafter "Irons I"].
_______
A. Exemption 5
A. Exemption 5
___________
With respect to the IG Report's "subjective" evaluation
of the evidence against the two senior RING officers, as well as
the IG's recommendations to the Army VCOS, the Army asserts a
claim under Exemption 5 which prohibits compelled disclosure of
"inter-agency or intra-agency memorandums or letters which would
not be available by law to a party other than an agency in
litigation with the agency." 5 U.S.C. 552(b)(5). Agency
documents which would not be obtainable by a private litigant in
an action against the agency under normal discovery rules (e.g.,
____
attorney-client, work-product, executive privilege) are protected
from disclosure under Exemption 5. United States v. Weber
______________ _____
Aircraft Corp., 465 U.S. 792, 799 (1984); EPA v. Mink, 410 U.S.
_______________ ___ ____
73, 86 (1973). The Army relies on the executive or "deliberative
process" privilege, see, e.g., id. at 85-86 (1973) (national
___ ____ ___
security memo on nuclear testing prepared for President), which
is designed to safeguard and promote agency decisionmaking
processes in at least three ways:
[I]t serves to assure that subordinates
within an agency will feel free to provide
the decisionmaker with their uninhibited
opinions and recommendations without fear of
later being subject to public ridicule or
criticism; to protect against premature
disclosure of proposed policies before they
6
have been finally formulated or adopted; and
to protect against confusing the issues and
misleading the public by dissemination of
documents suggesting reasons and rationales
for a course of action which were not in fact
the ultimate reasons for the agency's action.
Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854,
________________________ ____________________
866 (D.C. Cir. 1980); see also Schell v. Department of Health and
___ ____ ______ ________________________
Human Servs., 843 F.2d 933, 939 (6th Cir. 1988). After
_____________
considering any potential impact public disclosure might have on
the employee-advisor, the agency decisionmaker, and the public,
the court should construe Exemption 5 as narrowly as is
"consistent with efficient Government operation." Mink, 410 U.S.
____
at 89 (citation omitted). Normally, a document will qualify for
protection under Exemption 5 if it is both "predecisional" and
"deliberative." See Dow Jones & Co. v. Department of Justice,
___ ________________ _____________________
908 F.2d 1006, 1008-09 (D.C. Cir. 1990).
1. "Predecisional Document" Test
1. "Predecisional Document" Test
____________________________
A document will be considered "predecisional" if the
agency can (i) pinpoint the specific agency decision to which the
document correlates, Paisley v. CIA, 712 F.2d 686, 698 (D.C. Cir.
_______ ___
1983), (ii) establish that its author prepared the document for
the purpose of assisting the agency official charged with making
the agency decision, Renegotiation Bd. v. Grumman Aircraft Eng'g
__________________ ______________________
Corp., 421 U.S. 168, 184 (1975); Hopkins v. Department of Hous.
_____ _______ ____________________
and Urban Dev., 929 F.2d 81, 84 (2d Cir. 1991); Coastal States,
_______________ ______________
617 F.2d at 866, and (iii) verify that the document "precedes, in
temporal sequence, the 'decision' to which it relates." Senate
______
7
of Puerto Rico v. Department of Justice, 823 F.2d 574, 585 (D.C.
______________ _____________________
Cir. 1987). The Journal concedes that the Army VCOS ordered the
IG to conduct the preliminary criminal investigation and that
Army command, not the IG, is the final decisionmaker as to
whether there is to be any further disciplinary or prosecutorial
action against the RING officers. See Rules for Court-Martial
___
306(a) ("Each commander has discretion to dispose of offenses.
. . ."); Hopkins, 929 F.2d at 85 (document "predecisional" if its
_______
author "lacked any authority to take final agency action").
Thus, the IG Report would be a predecisional document.
The Journal argues nonetheless that Army command
implicitly adopted the IG Report by its apparent failure to take
any action within a reasonable time after issuance, thereby
______ _ __________ ____
disentitling the IG's recommendations to "predecisional" status
under Exemption 5. The Journal contends that its "implied adop-
tion" theory is necessary to prevent an agency's use of its own
inaction as an absolute shield from compelled FOIA disclosure of
________
the results of any internal investigation.4
The "implied adoption" theory is neither supported by
____________________
4The Journal suggests also that the Army's earlier
"approval" of the IG Report, coupled with the apparent inaction,
signified official Army "adoption" of the IG Report. Army
Regulations provide, however, that "[w]hen an IG report is
approved, conclusions and recommendations contained in the report
do not constitute the directing authority's decision nor an
explanation of the decision unless specifically adopted as such
in writing by the directing authority." DAR 20-1, 3-1c
__ _______ _
(emphasis added); cf. Niemeier v. Watergate Special Prosecution
___ ________ ______________________________
Force, 565 F.2d 967, 973 (7th Cir. 1977) (adoption requires
_____
something more than mere quotation, such as an affirmative
manifestation that the predecisional document's conclusions are
deemed "consistent" with final agency decision).
8
the plain language of Exemption 5 nor the related caselaw,5 and
would disserve the recognized aims of Exemption 5. Express
adoption of a predecisional document is a prerequisite to an
agency waiver under Exemption 5. See, e.g., Sears, 421 U.S. at
___ ____ _____
161 (agency must "expressly . . . adopt or incorporate [predeci-
_________
sional document] by reference" in final decision); Ahearn v.
______
United States Army Materials & Mechanics Research Ctr., 580 F.
________________________________________________________
Supp. 1405, 1407 (D. Mass. 1984) (same). Courts consistently
have refused to infer agency adoption based on mere agency
inaction. See, e.g., Brinton v. Department of State, 636 F.2d
___ ____ _______ ____________________
600, 605 (D.C. Cir. 1980) (age or length of retention of
predecisional document irrelevant to question of agency "adop-
tion"), cert. denied, 452 U.S. 905 (1981); Ashley v. Department
____________ ______ __________
of Labor, 589 F. Supp. 901, 908 (D. D.C. 1983) (no implied
________
adoption "even if a disputed document is several years old . . .
[and] has not yet produced a[n] [anticipated] final decision").6
____________________
5The one decision cited in support of the theory, Washington
__________
Post Co. v. Department of Air Force, 617 F. Supp. 602, 605 (D.
________ ________________________
D.C. 1985), is inapposite, as it involved an express agency
_______
adoption of an IG report.
6The Army argues that the Journal cannot assert its "implied
adoption" claim because it failed to request disclosure of
documents describing any final agency action following "approval"
of the IG Report. In our view, however, the initial Journal
request, which sought "all documents pertaining to the Inspector
General's investigation of the Rhode Island National Guard," was
broad enough to include any such written record of final action
by the Army, if one exists. See McGehee v. CIA, 697 F.2d 1095,
___ _______ ___
1102-03 (D.C. Cir. 1983) (once agency responds fully to FOIA
requests, no continuing duty to disclose documents generated
later; in general, prior to full compliance, there is an ongoing
_____ __ ____ __________
obligation to update disclosure). For present purposes, we
assume that no document evidencing final Army action has yet
issued.
9
The proposed "implied adoption" rule would undermine
Exemption 5 by inhibiting the free exchange of views within an
agency. Agency advisors responding to supervisory directives
might be less forthcoming with their advice lest their
recommendations be exposed to public scrutiny in the event final
agency action is not promptly taken. See Access Reports v.
___ _______________
Department of Justice, 926 F.2d 1192, 1196 (D.C. Cir. 1991) ("At
______________________
the time of writing the author could not know whether the
decisionmaking process would lead to a clear decision,
establishing the privilege, or fizzle, defeating it. Hedging his
bets, he would be drawn into precisely the caution . . . that the
exemption seeks to render unnecessary."); Schell, 843 F.2d at 941
______
(same).7 Especially is this true where, as here, one viable
agency option is to take no final "action" on the IG's
recommendations. See Rules for Court-Martial 306(c)(1) ("A
___
commander may decide to take no action on an offense. If charges
have been preferred, they may be dismissed.").
Accordingly, we decline to depart from the established
view that an agency may meet its burden of proof under the "pre-
decisional document" test by demonstrating that the preparer was
not the final decisionmaker and that the contents confirm that
the document was originated to facilitate an identifiable final
agency decision. See Mobil Oil Corp. v. EPA, 879 F.2d 698, 703
___ ________________ ___
____________________
7In contrast, express agency adoption represents a
significant vindication of a subordinate advisor's recommenda-
tion, posing little risk of retaliation or public embarrassment.
See, e.g., Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1204
___ ____ ______________________ ___
(D.C. Cir. 1991); see also Washington Post, 617 F. Supp. at 605.
___ ____ _______________
10
(9th Cir. 1989) (agency asserting Exemption 5 claim need not
demonstrate differences between contents of deliberative document
and final agency decision).
11
2. "Deliberative Document" Test
2. "Deliberative Document" Test
___________________________
A "predecisional" document may still not "fall within
the confines of Exemption 5 if it is not part of the
'deliberative process.'" Formaldehyde Inst. v. Department of
__________________ ______________
Health and Human Servs., 889 F.2d 1118, 1121 (D.C. 1989); see
________________________ ___
also Access Reports, 926 F.2d at 1195 (document must "reflect[]
____ ______________
the give-and-take of the consultative process") (citation
omitted). The Army asserts that two features of the IG Report
contributed to the deliberative process: (1) Vaughn Index A2,
A6 and A7, conveying the IG's views as to whether the allegations
were substantiated, as well as the IG's recommendations relating
to any appropriate agency action, and (2) Vaughn Index A3 and
A5, which include the IG's findings of fact and summaries in
support of the IG's recommendations. The district court ruled
that:
the [IG's] investigatory report was not a
deliberative policy-making document. The
investigation concerned factual allegations
against high-ranking officials. This is not
agency policy in the same vein as Mink,
____
supra, where reports were prepared for the
_____
President on the advisability of underground
nuclear testing.
If the [IG] report concerned broader
issues if it was a report of general
recommendations on disciplining superior
officers the situation would be different.
However, this report is factually specific;
_________ ________
it does not reflect "agency give-and-take
of the deliberative process by which the
decision itself is made."
Providence Journal v. Department of Army, 781 F. Supp. 878, 885
__________________ ___________________
12
(D. R.I. 1991) (citing Weber Aircraft, 465 U.S. 792 (1984);
_______________
Cooper v. Department of Navy, 558 F.2d 274 (5th Cir. 1977))
______ ___________________
(emphasis added) (other citations omitted).
A predecisional document will qualify as "deliberative"
provided it (i) formed an essential link in a specified consulta-
tive process, (ii) "reflect[s] the personal opinions of the
writer rather than the policy of the agency," and (iii) if
released, would "inaccurately reflect or prematurely disclose the
views of the agency." National Wildlife Fed'n v. Forest Serv.,
_______________________ ____________
861 F.2d 1114, 1118-19 (9th Cir. 1988); see also Safecard Servs.,
___ ____ ________________
Inc. v. SEC, 926 F.2d 1197, 1204 (D.C. Cir. 1991) (agency must
____ ___
show the decisional "context" of the document within the process
used to reach determinations "like those in issue"); cf. Senate
___ ______
of Puerto Rico, 823 F.2d at 585-86 (agency bears burden of
_______________
establishing "what deliberative process is involved, and the role
played by the documents in the course of that process") (citation
omitted). Even where expressions of personal opinion generally
render a document "deliberative," however, segregable factual
portions of the document might still be subject to compelled
disclosure if, for example, they are not so "inextricably
intertwined" with the deliberative material that their disclosure
would compromise the private remainder of the documents. See
___
Mink, 410 U.S. at 92.
____
a. "Consultative Process"
a. "Consultative Process"
____________________
We find no authority for the suggested distinction
13
between "reports of general recommendations on disciplining
superior officers" and "factual" reports prepared in the course
of internal disciplinary investigations against particular indi-
viduals. See, e.g., Renegotiation Bd., 421 U.S. at 184 (agency
___ ____ _________________
deliberations preceding adjudicative decision involving specified
persons implicate Exemption 5); National Wildlife, 861 F.2d at
_________________
1118 (Exemption 5 not limited to consultations over official
"policy"); Brockway v. Department of Air Force, 518 F.2d 1184,
________ ________________________
1192 (8th Cir. 1975) (Exemption 5 extends beyond "policy"
memoranda to include all documents not discoverable in litigation
_________ ___ ____________ __ __________
with agency); see also, e.g., Swisher v. Department of Air Force,
____ ______ ___ ____ ____ _______ _______________________
495 F. Supp. 337 (W.D. Mo. 1980), aff'd, 660 F.2d 369 (8th Cir.
_____
1981) (IG Report constitutes "deliberative" document); American
________
Fed'n of Gov't Employees v. Department of Army, 441 F. Supp. 1308
________________________ __________________
(D. D.C. 1977) (same). Rather, the appropriate judicial inquiry
is whether the agency document was prepared to facilitate and
inform a final decision or deliberative function entrusted to the
agency. See, e.g., Russell v. Department of Air Force, 682 F.2d
___ ____ _______ _______________________
1045, 1046-48 (D.C. Cir. 1982) (editorial review process used by
Office of Air Force History to prepare historical document on use
of Agent Orange during Vietnam war constitutes deliberative
agency function).
As Army command controls the agency decision whether
Army personnel are to be disciplined for alleged misconduct, or
prosecuted under the Uniform Code of Military Justice for alleged
criminal activity, its deliberative task is no less an agency
14
function than the formulation or promulgation of agency
disciplinary policy. As with other discretionary prosecutorial
decisions, many considerations contribute to the final
determination by Army command, including the rank of the investi-
gated officers, the seriousness of the allegations, the overall
reliability of the evidence, the relative appropriateness of the
available forms of remediation, and any special mitigating
circumstances. Cf. Senate of Puerto Rico, 823 F.2d at 585 n.38
___ _____________________
("[T]he process leading to a decision to initiate, or forego,
prosecution is squarely within the scope of the privilege
. . . ."). It is not surprising, therefore, that the Army has in
place a confidential consultative process to ensure maximum input
from the chain of command concerning the need for further action.
See Russell, 682 F.2d at 1048 (agency has "much at stake" in
___ _______
"candid consideration" where it must be prepared to "stand by its
[final decision] in the public forum, and in light of the possi-
bility of . . . litigation . . . perhaps in the judicial forum as
well").
b. "Essential" to Consultative Process
b. "Essential" to Consultative Process
__________________________________
Neither can we agree that the primary function of the
IG Report was to convey raw evidence or data discovered during
the investigation and that the IG's recommendations were
peripheral or gratuitous. Schell, 843 F.2d at 940 (court must
______
determine whether document was "essential" or merely a
"peripheral item which just 'beefs up' a position with cumulative
15
materials") (citation omitted). We think it is clear that the
recommendations made by the IG the agency official with the
investigative expertise and the greatest familiarity with the
first-hand evidence are highly important to Army command even
though it is not obligated in the final analysis to credit the
IG's recommendations. See, e.g., Hopkins, 929 F.2d at 85 (HUD
___ ____ _______
inspector reports contain "recommendations to higher officials
that various agency actions should be taken."); Formaldehyde, 889
____________
F.2d at 1125 (reliance on temporary consultants' opinion often
necessary); Schell, 843 F.2d at 942 ("It is the free flow of
______
advice, rather than the value of any particular piece of informa-
tion, that Exemption 5 seeks to protect."). We cannot say that
the IG's recommendations were in any sense either merely
cumulative or peripheral. We conclude, at a minimum, therefore,
that a significant portion of the IG Report (Vaughn Index A2,
A6, and A7) was "essential" to the consultative process within
the agency.
c. Premature Disclosure of IG's "Personal Opinions"
c. Premature Disclosure of IG's "Personal Opinions"
_______________________________________________
Nor is the chilling effect on candid advice from agency
subordinates, which Exemption 5 was designed to mitigate,
significantly diminished merely by reason of the fact that the
subordinates' recommendations relate to the appropriateness of
disciplinary action against particular individuals. A
subordinate agency advisor may have more cause for concern about
____
public disclosure of disciplinary recommendations involving high-
16
level agency officials, since there may be a real or perceived
risk of retaliation from a vindictive official who is the target
of the advisor's findings or recommendations. Cf. Cooper, 558
___ ______
F.2d at 277 ("[S]ervice people are human, too: they fear
disciplinary action, work and hope for promotion, possess
loyalties and ties of friendship to people and organizations,
[and] dislike speculating to the derogation of others'
reputations . . . .").
Army command is not required to accept the IG's recom-
mendations. Indeed, command already may have exercised its
prerogative to take no further action on these allegations, for
reasons entirely unrelated to the grounds espoused in the IG
Report. Accordingly, since public release of the recommendatory
sections in the IG Report would either "inaccurately reflect or
prematurely disclose the views of the agency," the Army may not
be required to reveal any information referenced in Vaughn Index
A2, A6, or A7.8
____________________
8None of the cases relied on by the Journal, or by the
district court, supports a contrary result. Weber Aircraft, 465
______________
U.S. at 796 (Air Force waived Exemption 5 claim by voluntarily
___________
releasing entire record of collateral investigation of air
______
crash); Playboy Enters., Inc. v. Department of Justice, 677 F.2d
_____________________ ______________________
931, 935 (D.C. Cir. 1982) (plaintiff sought disclosure of
contents of witness statements only, but did not "'wish to probe
the process whereby the task force assigned reliability or weight
to specific evidence'"); Cooper, 558 F.2d at 279 (Navy investiga-
______
tive report of helicopter crash, which was primarily "fact-
oriented," with the expression of an opinion "incidental," not
entitled to blanket exemption; on remand, however, district court
_______ __ ______
must scrutinize each section of report to determine if its
disclosure would "safeguard the consultative or decision-making
process"); Brockway, 518 F.2d at 1185 (plaintiff sought only
________
witness statements concerning air crash (not findings of fact));
Project on Military Procurement v. Department of Navy, 710 F.
________________________________ ___________________
17
d. "Inextricably Intertwined" Fact-Oriented Material
d. "Inextricably Intertwined" Fact-Oriented Material
________________________________________________
The Army contends that Vaughn Index A3 and A5,
conveying the IG's conclusions as to the facts revealed by the
evidence discovered during the investigation, should be exempt
because the conclusions are so "inextricably intertwined" with
the IG's mental processes that their disclosure necessarily would
reveal the substance of the IG's recommendations. See, e.g.,
___ ____
Quarles v. Department of Navy, 893 F.2d 390, 392-93 (D.C. Cir.
_______ __________________
1990) (cost estimates derive from "complex set of judgments" by
preparers); Russell, 682 F.2d at 1048 (historical facts
_______
essentially "interpretive" choices by reviewer); Swisher, 495 F.
_______
____________________
Supp. 362, 367 (D. D.C. 1989) (plaintiff entitled to waiver of
fee on FOIA request; court does not reach merits of Navy's
potential Exemption 5 claim, nor plaintiff's entitlement to
disclosure); Washington Post Co., 617 F. Supp. at 605-07 (Air
____________________
Force "waived" right to prevent disclosure of most fact-oriented
portions of document either by express adoption of related
_______ ________
recommendatory sections or by voluntary disclosure of summaries
_________ __________
of more detailed fact-oriented sections; government failed to
meet burden by providing "empirical support" that remaining fact-
oriented sections were "inextricably intertwined" with exempted
________
deliberative material).
Adams v. United States, 686 F. Supp. 417 (S.D.N.Y. 1988), is
_____ _____________
the only case the Journal cites which is at all apposite.
However, Adams stands on a mistaken premise. The Adams court
_____ _____
held that the IG's findings of fact were irrelevant to the
deliberative process because the commanding officer was free to
disregard the findings in making the final disciplinary decision,
and that Exemption 5 applies "only insofar as [] disclosure might
tend to expose the decisionmaker's deliberative process." Id. at
_______________ ___
419-20 (citation omitted) (emphasis in original). Exemption 5
protects the deliberative process, which necessarily involves at
_______
least two parties: the advisor and the decisionmaker. The fact
that the decisionmaker may choose to disregard the IG's advisory
findings does not alter the fact that (1) the IG, who had first-
hand exposure to the witnesses and the evidence, is in the
optimum position to make informed findings of fact; and (2) an
informed final decision requires the IG's candid assessment of
witness demeanor and credibility.
18
Supp. at 340 (IG's investigative conclusions exempt); American
________
Fed'n, 441 F. Supp. at 1313 (IG's preliminary conclusions "play
_____
an integral part in the consultative process"). The district
court held that the IG's evidentiary conclusions and rationale
are not exempt from disclosure since "[t]he mere act of selecting
facts for inclusion in a report does not make that report
deliberative," and "[s]imple judgment exercised in preparing the
Report of Investigation does not equal deliberation." Providence
__________
Journal, 781 F. Supp. at 885.9
_______
The Exemption 5 analysis employs a rough-hewn dichotomy
between opinion and fact: whereas the purely recommendatory
provisions in a deliberative predecisional document are exempt
from compelled disclosure, "memoranda consisting only of compiled
factual material or purely factual material contained in
deliberative memoranda and severable from its context would
_________ ____ ___ _______
generally be available for discovery . . . ." Mink, 410 U.S. at
____
87-88 (emphasis added); see also Hopkins, 929 F.2d at 85;
___ ____ _______
Russell, 682 F.2d at 1048; Mead Data Cent., Inc. v. Department of
_______ _____________________ _____________
Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977). As the dichotomy
_________
between opinion and fact is not clear-cut, courts generally
follow a "functional" approach in an attempt to determine
____________________
9Even though the Army raised the issue before the district
court, see Providence Journal, 781 F. Supp. at 889 (Appendix A),
___ __________________
on appeal it apparently disclaims any contention that Vaughn
Index A4, objectively recounting the contents of the statements
provided by the 27 solicited sources, is entitled to protection
from FOIA disclosure under Exemption 5. See Playboy Enters., 677
___ _______________
F.2d at 935 (mere selection of facts for inclusion in report not
"deliberative").
19
"whether production of the contested document [or section] would
be 'injurious to the consultative functions of government .
. . .'" Mink, 410 U.S. at 87 (citing Kaiser Aluminum & Chem.
____ ________________________
Corp. v. United States, 157 F. Supp. 939, 946 (Ct. Cl. 1958)).
_____ _____________
Even when requested material is found to be
factual, the courts have held it exempt where
they were convinced that disclosure "would
expose an agency's decisionmaking process in
such a way as to discourage candid discussion
within the agency and thereby undermine the
agency's ability to perform its functions."
Quarles, 893 F.2d at 392 (citation omitted); see also Access
_______ ___ ____ ______
Reports, 926 F.2d at 1195 (central inquiry is whether disclosure
_______
would "discourage candid discussion within the agency.")
(citation omitted); Formaldehyde, 889 F.2d at 1123 (opinion-fact
____________
distinction is subordinate to inquiry concerning "effect of the
materials' release" on deliberative process). Factual material
should be considered segregable if it is not so "inextricably
intertwined" with the deliberative material that its disclosure
would "compromise the confidentiality of deliberative information
that is entitled to protection." Mink, 410 U.S. at 92; see
____ ___
Hopkins, 929 F.2d at 85.
_______
While mere selection of the evidence deemed material to
________
an agency decision may not implicate Exemption 5,10 disclosure
____________________
10In some cases, a predecisional distillation of material
facts from a larger public record may reveal the final decision-
maker's mental processes by enabling public scrutiny of the
information not relied on in arriving at the final agency
___
decision. See, e.g., Russell, 682 F.2d at 1049 (comparison with
___ ____ _______
final agency action would reveal what the agency thought were
insignificant preliminary findings of fact); Montrose Chemical
_________________
20
of the IG's findings of fact necessarily would reveal the opinion
of the IG on the credibility and probity of the evidence relating
to each allegation. Findings of fact arrived at in the personnel
management context reflect a significant degree of subjectivity.
Our review of these Vaughn-indexed documents discloses instances
of conflicting and inconsistent witness statements. The findings
of fact in the IG Report necessarily were premised on an
assessment and resolution of the relative credibility of these
statements, as well as subjective judgments as to the probity of
other evidence developed during the investigation. Cf. Playboy
___ _______
Enters., Inc. v. Department of Justice, 677 F.2d 931, 935 (D.C.
_____________ ______________________
Cir. 1982) (plaintiff did not "wish to probe the process whereby
the task force assigned reliability or weight to specific
evidence"). Revelation of the IG's findings of fact undoubtedly
would divulge the substance of the related recommendatory
sections with which they comport.11 Accordingly, as we
conclude that the recommendatory provisions in the IG Report are
exempt from disclosure, the Army cannot be compelled to disclose
the IG's findings of fact in Vaughn Index A3 and A5.
____________________
Corp. v. Train, 491 F.2d 63, 67-68 (D.C. Cir. 1974) (same). But
_____ _____
absent any documentation evidencing a final agency decision, we
need not address this issue.
11For instance, disclosure of a finding that a high-ranking
officer did or did not engage in particular conduct reveals the
IG's judgment as to whether the allegation was substantiated by
the evidence. Were such findings subject to compelled disclosure
in these circumstances, forthright findings of fact by agency
subordinates, based on disputed evidence, would be harder to come
by. See American Fed'n, 441 F. Supp. at 1313 (chilling effects
___ ______________
of prospective disclosure are greatest in the case of an internal
criminal investigation of agency personnel).
________
21
B. Exemption 7(D)
B. Exemption 7(D)
______________
The Army claims that the statements provided by twenty-
eight (twenty-four solicited witnesses and four anonymous infor-
mants) of its thirty-one sources (Vaughn Index A4, F-I) are
nonetheless protected under Exemption 7(D), which shields from
compelled disclosure records and information compiled for law
enforcement purposes,
but only to the extent that the[ir]
__ ___ ______
production . . .
could reasonably be expected to disclose the
________ ___
identity of a confidential source12 . . .
________ __ _ ____________ ______
and, in the case of a record or information
compiled by criminal law enforcement
authority in the course of a criminal
investigation . . . information furnished by
___________ _________ __
a confidential source. (Emphasis added.)
_ ____________ ______
Exemption 7 was intended to avert the "drying-up" of
sources of information necessary to conduct criminal investiga-
tions. Irons v. FBI, 880 F.2d 1446, 1450-51 (1st Cir. 1989)
_____ ___
[hereinafter "Irons II"]. An agency claiming the right to
_________
decline disclosure on the basis of Exemption 7(D) must demon-
strate that the particular document was compiled for "law
enforcement purposes" from information provided by a
"confidential source." See Curran, 813 F.2d at 473-74 (unlike
___ ______
certain other FOIA exemptions, once both elements of a 7(D)
exemption are established, the court should not engage in a
___
____________________
12The Journal seeks disclosure of the contents of the state-
ments only, not the witnesses' identities.
22
balancing of interests); Brant Constr. Co. v. EPA, 778 F.2d 1258,
_________________ ___
1262-63 (7th Cir. 1985) (same). The Journal challenges only the
"confidentiality" of the Army's sources.13
Document confidentiality depends not on the contents
but on the terms and circumstances under which the information
was acquired by the agency. See Irons I, 811 F.2d at 685;
___ ________
Johnson v. Department of Justice, 739 F.2d 1514, 1517 (10th Cir.
_______ _____________________
1984); see also Irons II, 880 F.2d at 1448 ("confidential" does
___ ____ _________
not mean "secret" information, but information "provided in con-
fidence"). A confidential source is one who "'provide[s]
information under an express assurance of confidentiality or in
circumstances from which such an assurance could be reasonably
inferred.'" Id. at 1447 (quoting S. Rep. No. 1200, 93d Cong., 2d
___
Sess. 13 (1974)) (citation omitted). We discuss the two types of
source statements requested by the Journal: (1) solicited state-
ments from confidential sources (Vaughn Index A4), and (2)
____________________
13The Journal does not dispute that the requested documents
satisfy the threshold criterion under Exemption 7(D), namely that
the records were compiled by a criminal law enforcement authority
in the course of a criminal investigation. See Curran, 813 F.2d
___ ______
at 475; Shaw v. FBI, 749 F.2d 58, 63 (D.C. Cir. 1984) (agency
____ ___
must "identify . . . a particular individual or a particular
incident as the object of its investigation and . . . the connec-
tion between that individual or incident and a . . . violation of
federal law."); cf. Stern v. FBI, 737 F.2d 84, 89 (D.C. Cir.
___ _____ ___
1984) (mere internal disciplinary proceeding not sufficient for
Exemption 7(D); investigation must be targeted at specific person
for actions punishable either by criminal or civil sanctions).
For Exemption 7 purposes, Inspectors General are normally deemed
"criminal law enforcement" agencies, Brant, 778 F.2d at 1265
_____
(citing New England Apple Council v. Donovan, 725 F.2d 139 (1st
__________________________ _______
Cir. 1984)) (noting "the substantial similarities between the
activities of the FBI and OIGs [Offices of Inspectors General]").
These allegations exposed the RING officers to possible court-
martial.
23
unsolicited statements from confidential sources (Vaughn Index
F-I).
1. Statements Solicited from Confi-
1. Statements Solicited from Confi-
dential Sources (Vaughn Index A4)
dential Sources (Vaughn Index A4)
___________________________________
The district court found that twenty-four of the
twenty-seven individuals from whom information was solicited by
the IG qualified as "confidential" sources, since they accepted
express agency assurances of confidentiality; hence their
identities were protected from disclosure under the first clause
__________
of Exemption 7(D). The district court nevertheless held that the
contents of each statement solicited from these confidential
________
sources must be disclosed because the information was not
"furnished only by the confidential source." See Providence
____ ___ __________
Journal, 781 F. Supp. at 886-87. The court did not identify the
_______
nonconfidential sources to which it made reference, but
presumably meant to include the anonymous authors of the four
unsolicited letters which triggered the internal investigation,
as well as the three sources who expressly declined assurances of
confidentiality.
Although we agree with the district court that the
identities of the twenty-four confidential sources are exempt
from disclosure under the first clause of Exemption 7(D), we
cannot agree that the contents of their statements are not
________
shielded from disclosure under the second clause. The district
court ruling relied entirely on the word "only" appearing in
the second clause of Exemption 7(D) which Congress deleted in
24
1986 for the explicit purpose of clarifying the broad policy
goals served by the second clause.14 Irons I, 811 F.2d at 687
_______
("'There should be no misunderstanding that . . . [the 1986
modifications] are intended to broaden the reach of this
exemption and to ease considerably a Federal law enforcement
agency's burden in invoking it.'") (citing 199 Cong. Rec.
S16504). Under amended Exemption 7(D), an agency may not be
ordered to disclose information from a confidential source even
if nonconfidential sources have provided the agency with the
identical information.15
The Journal nevertheless urges affirmance of the
district court ruling, on the ground that the Army should be
required to prove that each individual witness either (1)
initiated the request for confidentiality, or (2) articulated a
_________ ___________
____________________
14Prior to the 1986 amendment, 552(b)(7)(D) exempted
investigatory records compiled for law enforcement
purposes, but only to the extent that the production of
such records would . . . 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.
(Emphasis added.) The 1986 amendment eased the government's
burden of proof substantially. For the phrase "would . . . dis-
close," it substituted the phrase "could reasonably be expected
to disclose," and it deleted the word "only" in the final clause.
See supra p. 22; see also Irons I, 811 F.2d at 687.
___ _____ ___ ____ _______
15The Journal acknowledges that the district court
mistakenly relied on the unamended version of Exemption 7(D). It
concedes as well that the district court's finding that these
twenty-four witnesses did receive express assurances of confiden-
tiality is supportable.
25
legitimate reason for invoking confidentiality respecting
statement content after the IG made the initial tender of
_____
confidentiality. Absent some such prophylactic rule, the Journal
argues, a federal agency could insulate itself from legitimate
FOIA disclosure requests merely by offering confidentiality to
all sources, whether or not required or requested by the source.
The Journal cites no authority for its proposed rule,
and sound policy considerations counsel against it. Muzzling law
enforcement agencies in order to deter tenders of confidentiality
likely would risk "drying-up" the flow of information from many
wary witnesses with valuable information, especially sources who
might reasonably expect that an agency would extend an offer of
confidentiality if it were an available option. Moreover, in
circumstances where law enforcement officials solicit information
pertaining to a criminal investigation, see supra note 13, absent
___ _____
evidence to the contrary the courts have inferred agency assur-
ances of confidentiality notwithstanding agency silence. See,
___
e.g., Dow Jones, 908 F.2d at 1010.
____ _________
A requirement that agency assurances of confidentiality
be subjected to post hoc judicial evaluation as proposed by the
____ ___
Journal promises more mischief than benefit. The task of
evaluating the "legitimacy" of confidentiality claims and
assurances on a witness-by-witness basis would not only be
onerous but often fruitless. It would be rare that a source
would be unable to advance some colorable basis for a
confidentiality claim, given the subjective nature of witness
26
concerns about possible retaliation. Perhaps more importantly,
mere awareness by potential sources that the agency's assurances
of "content" confidentiality would be subject to second-guessing
by the courts (advice with which fairness would seem to require
that an agency provide its potential sources in advance)
frequently would mean that only the unwary would be inclined to
provide information in an internal criminal investigation.
We think it more fair and efficient that law
enforcement agencies be allowed to continue to extend assurances
of confidentiality to their sources, with the advice that
confidentiality may be disclaimed. In this manner, unfettered
agency control and manipulation of Exemption 7(D) protections can
be minimized without jeopardizing valuable agency sources. As
the procedure utilized by the Army met this standard, its twenty-
four solicited statements are exempt from FOIA disclosure in
their entirety under Exemption 7(D).
2. Unsolicited Anonymous Sources (Vaughn Index F-I)
2. Unsolicited Anonymous Sources (Vaughn Index F-I)
___________________________________________________
The district court found that the four anonymous
letters were not protected from compelled disclosure by Exemption
7(D) as there was no evidence that the letters were sent under
implied assurances of confidentiality. The court identified two
reasons for its ruling: (1) the letters may have been written by
nonmilitary personnel unfamiliar with the "obscure Army regula-
tions" assuring confidentiality, and (2) copies of the letters
were made available to other "disciplinary" officials, including
27
Army generals and the Governor. Providence Journal, 781 F. Supp.
__________________
at 887.
Given the obvious import of the 1986 amendments to
Exemption 7(D), see supra note 14, and the consequent easing of
___ _____
the law enforcement agency's burden of proof, we think the Tenth
Circuit has articulated a sound rationale for determining whether
the unsolicited information from these anonymous sources was
provided under an implied assumption of confidentiality. See
_______ ___
Johnson, 739 F.2d at 1517-18 (summarizing three-way circuit split
_______
and citing cases).
Most people would assume that the information
they give to a criminal law enforcement offi-
cial during a criminal investigation will be
kept confidential. However, situations may
arise where it is unreasonable to make this
assumption, and in the face of evidence to
this effect in the record, a district court
will not be precluded from so finding.
Id. at 1518.
___
Generally speaking, the circumstances in which these
anonymous letters were submitted comport with a reasonable
assumption of confidentiality on the part of the writers. Thus,
[i]t is unrealistic to assume that a majority
of persons reporting to an agency what they
believe to be illegal or improper acts are
legally sophisticated. To the contrary, it
is much more likely that they would not know
the boundaries of the FOIA exemptions and,
therefore, would not include in their initial
communication to the agency an express
request for confidentiality. They may be
frightened, angry, or confused, and their
immediate concerns do not include creating an
evidentiary record to prove an assurance of
28
confidentiality in anticipation of a
potential FOIA request.
In cases involving unsolicited informa-
tion from ostensibly confidential sources,
the court should look to all factors . . .
[to determine] whether a request for
_______
confidentiality is implicit, i.e., that in
____
light of the information and surrounding
circumstances, the communication in all
likelihood would not have been made if
confidentiality had not been assured.
Brant, 778 F.2d at 1263-64 (citation omitted) (emphasis in ori-
_____
ginal) (distinguishing between confidentiality standards
applicable to solicited and unsolicited sources). At least in
circumstances where the allegations might lead to court-martial
proceedings, it is reasonable to infer, absent contrary evidence,
that an anonymous source reasonably expected complete confiden-
tiality. Evidence that might arguably support a contrary
inference in the present case would be as follows: (1) the
writers' decisions not to sign their names; (2) their expressed
intention to provide copies to non-agency officials; and (3) any
other intrinsic manifestations in the letters which might reflect
their lack of concern about public dissemination of their
letters.
Unlike Brant, which involved an identified unsolicited
_____ __________
source, see id. at 1260-61, in the present case the writers
___ ___
redacted their names. The Journal contends that the redaction of
their names demonstrates the writers' realization that the
letters might be publicized, and their satisfaction that they had
successfully excised all forms of identifying material. On the
29
contrary, we believe that their determination to remain anonymous
provides further reason for indulging the customary presumption
that the information was provided under an implicit assurance of
confidentiality.
Exemption 7(D) contains two independent safeguards
___________
against content disclosure. Under the first clause, there is to
be no disclosure of information which would reveal the identity
________
of the source. Under the much broader second clause, however,
there is to be no disclosure of information offered in
confidence, without regard to whether it would divulge the
identity of the source. See Irons II, 880 F.2d at 1452
___ ________
("'[I]information furnished' exemption [applies] irrespective of
subsequent public identification of the source . . . ."); Shaw v.
____
FBI, 749 F.2d 58, 62 (D.C. Cir. 1984) (unless second clause of
___
Exemption 7(D) protects information beyond that which would
reveal the identity of the source, it is redundant); Johnson, 739
_______
F.2d at 1517 (same).
The congressional purpose underlying the blanket exemp-
tion in the second clause is readily apparent. Although even a
known source may not want the substance of the information made
_____ _________
public, sources who choose to clothe themselves in anonymity most
likely do so because they do "not want to have to rely upon the
agency's or the courts' judgment that disclosure will not reveal
[their] identity (which is of course the basis for a separate
exemption the first clause of Exemption 7(D) . . .)." Shaw,
____
749 F.2d at 61. Indeed, without knowing the identity of the
30
source, and any other potential clues to the source's identity
which the details of the allegations might afford the target,
often the court would be hard put to sift all identifying
information from an anonymous letter. Over the long term,
uncertainty about the sureness and consistency of this sort of
post hoc judicial determination could affect the flow of
____ ___
important information from anonymous sources necessary to
effective law enforcement. Thus, if Exemption 7(D), clause 2,
would preclude disclosure of statements solicited from
_________
confidential sources even though their names are redacted, it is
not clear to us that the writer's redaction of his or her name
from an unsolicited letter, without more, gainsays the
reasonableness of the normal presumption that the writer of the
anonymous letter anticipated the maximum level of confidentiality
which would be available to other confidential sources.
Second, we can ascribe no controlling significance to
the fact that the authors of three of the anonymous letters
(Vaughn Index F, G, H) expressed their intention to provide
copies to non-agency officials, such as the Governor of Rhode
Island, who is vested with concurrent authority to pursue
disciplinary action against RING personnel. See R.I. Gen. Laws
___
30-2-1 (1982) (prescribing Governor's statutory authority as
commander-in-chief of RING). Assuming the writers carried
through with their stated intention to send duplicate letters,
there is nothing in the record to suggest that the writers could
not reasonably have expected comparable assurances of
31
confidentiality from these non-agency officials, or that these
officials dealt with the letters in a manner which might arguably
render the reasonableness of the writers' expectations suspect.
See Brant, 778 F.2d at 1264 (simultaneous submission of
___ _____
unsolicited letter to federal and state enforcement agencies did
not undermine implied assurance of confidentiality, where
"nothing in the record indicates . . . that these [other]
agencies did not treat the letter as confidential").
Finally, two letters (Vaughn Index F, I) contain
explicit representations that the writers feared "reprisal" or
"retribution" (e.g., loss of employment) in the event their
____
statements were disclosed. See id. (court ought not dismiss as
___ ___
"a flight of fancy" an expressed fear of retaliation in
unsolicited letter). Given the core function of Exemption 7(D),
we believe that the flow of unsolicited information should not be
jeopardized by risking exposure of the identities of sources
through disclosure of the contents of their anonymous
communications. We therefore conclude that all twenty-eight
confidential source statements are protected from compelled
disclosure by Exemption 7(D). The three remaining source state-
ments, however, are not "confidential," and therefore are not
protected from compelled disclosure under Exemption 7(D).16
____________________
16As the Army concedes, the statements provided by the three
remaining sources, who expressly waived the IG's assurances of
confidentiality, would in all likelihood not be protected from
disclosure under Exemption 7(D). Exemption 7(D) itself does not
indicate what effect a witness's waiver of assurances of
confidentiality might have on the agency's power to shield the
statement from FOIA disclosure. Nevertheless, since uncertainty
32
C. Exemption 7(C)
C. Exemption 7(C)
______________
The three "nonconfidential" source statements (Vaughn
Index A4) include explicit references to the names of the two
senior RING officers. The district court did not distinguish
between substantiated allegations and unsubstantiated
allegations, but ordered disclosure of the names of the two
senior RING officers because (1) as "high-ranking" agency
officials with substantial supervisory authority, the officers
enjoyed a diminished privacy interest, (2) the allegations of
criminal conduct implicated their official duties, which would
"shed light" on RING performance, and (3) there is a counter-
vailing public interest in monitoring RING performance, both as
concerns the conduct of the target officers and the adequacy and
comprehensiveness of the IG's internal investigation. Providence
__________
Journal, 718 F. Supp. at 882-84. The Army counters that it may
_______
withhold these officers' names under Exemption 7(C),17 which
____________________
about the precise scope of a waiver might "dry up" law
enforcement sources, we consistently have refused to find an
implied waiver where the subjective intent of the informant to
_______
relinquish confidentiality can be inferred only from ambiguous
conduct, often occurring long after the informant provided the
confidential information. See Irons I, 811 F.2d at 686; see also
___ _______ ___ ____
Parker v. Department of Justice, 934 F.2d 375, 380-81 (D.C. Cir.
______ _____________________
1991). Although we need not resolve the question, recognition of
an express waiver would not appear to pose any comparable risk of
_______
chilling "the flow of information to the law enforcement agency,"
Irons II, 880 F.2d at 1449, since a source with sole control of
________ ____
the agency's right to disseminate the information would not be
reluctant to provide the information.
17We need not decide whether the four junior RING officers'
names are protected from disclosure under Exemption 7(C). The
four anonymous letters, which are exempt from disclosure in their
entirety under Exemption 7(D), were the only sources of informa-
33
protects from compelled disclosure "records or information
compiled for law enforcement purposes, but only to the extent
__ ___ ______
that the[ir] production . . . could reasonably be expected to
constitute an unwarranted invasion of personal privacy."
___________ ________
(Emphasis added.)18
The Army did not appeal the district court ruling
compelling disclosure of the three nonconfidential source state-
ments relating to the substantiated allegations, perhaps because
_____________
the Army understood that "all or much of this material may be
__ ____
independently protected by exemptions 5 or 7(D)." Brief for
Appellant at 20 n.16 (emphasis added). As neither Exemption 5
nor Exemption 7(D) is availing, however, the Army must disclose,
in their entirety, the statements of the three nonconfidential
__ _____ ________
sources which relate to substantiated allegations.19 We
____________________
tion about these officers. Furthermore, the allegations against
these four officers were not referred to the IG's Office for
investigation, and form no part of the IG report.
18Exemption 6, the alternative "privacy" exemption asserted
by the Army, protects "personnel and medical files and similar
_______
files the disclosure of which would constitute a clearly
_____ _____ __________ _______
unwarranted invasion of personal privacy." (Emphasis added.)
Exemption 6 affords the Army far less protection against
____
compelled disclosure than does Exemption 7(C). Exemption 6
requires proof that the requested documents come within the
narrow definition of "similar files," that the invasion of
privacy would be "clearly unwarranted," and that disclosure would
_______
in fact constitute an invasion of privacy. Reporters Comm., 489
__ ____ _______________
U.S. at 756; Nadler v. Department of Justice, 955 F.2d 1479, 1488
______ _____________________
(11th Cir. 1992) (phrase "reasonably expected" represents
relaxation of standard from "would constitute," making it easier
for agency to invoke Exemption 7(C) than Exemption 6). For these
reasons, we confine our discussion to Exemption 7(C).
19Even if the Army had pursued this line of argument on
appeal, it is unlikely that the scope of FOIA protection would be
broadened. To the extent that the RING officers lacked a suffi-
34
confine the remainder of our discussion to the nonconfidential
source statements relating to the "unsubstantiated" allegations
_______________
against the two senior RING officers.
Under our Exemption 7(C) precedents, in order to deter-
mine whether disclosure might reasonably be expected to work an
"unwarranted" invasion of privacy the court is required to
balance the privacy interests of the targets of the criminal
_______
investigation against any public interest in the disclosure of
their identities. See New England Apple Council v. Donovan, 725
___ _________________________ _______
F.2d 139, 143 (1st Cir. 1984); Sands v. Murphy, 633 F.2d 968, 971
_____ ______
(1st Cir. 1980).
A private individual who becomes the target of a law
enforcement agency investigation, and whose alleged criminal
conduct in no way reflects on the law enforcement agency's
___ ___________ ________
performance, has a significant interest in preventing premature
___________
public disclosure of his or her identity under Exemption 7(C).
See Reporters Comm., 489 U.S. at 765, 773 (information concerning
___ _______________
private citizens "reveals little or nothing about an agency's own
conduct"); Nadler v. Department of Justice, 955 F.2d 1479, 1490
______ _____________________
(11th Cir. 1992) ("Enabling the public to learn about the conduct
of private citizens is not the type of public interest the FOIA
was intended to serve."); Hopkins, 929 F.2d at 88 (same). On the
_______
other hand, a federal government employee investigated for
____________________
cient privacy interest in witness statements relating to
unsubstantiated allegations, their privacy interest would surely
_______________
diminish as to substantiated charges in which there presumably
would be a heightened public interest.
35
criminal misfeasance relating to the performance of official
duties generally possesses a diminished privacy interest. See
___
Stern v. FBI, 737 F.2d 84, 92 (D.C. Cir. 1984) (high-level FBI
_____ ___
official). It is equally clear, however, that an internal
criminal investigation would not invariably trigger FOIA
disclosure of the identity of the targeted government employee:
'One who serves his state or nation as a
career public servant is not thereby stripped
of every vestige of personal privacy, even
with respect to the discharge of his official
duties. Public identification . . . could
conceivably subject them to harassment and
annoyance in the conduct of their official
duties and in their private lives.'
New England Apple, 725 F.2d at 142 (citation omitted); see also
_________________ ___ ____
Fund for Constitutional Gov't v. National Archives & Records
_______________________________ _____________________________
Serv., 656 F.2d 856, 864 (D.C. Cir. 1981). Therefore, we must
_____
determine appropriate guidelines for weighing the privacy
interest remaining to these RING officers against the public
interest in the disclosure of their identities.
Public identification of the "targets of law
enforcement investigations can subject those identified to
embarrassment and potentially more serious reputational harm."
Safecard, 926 F.2d at 1205 (citations omitted). In virtually all
________
cases, however, disclosure of the information adduced in an
agency investigation serves the public interest at least to the
extent that it sheds light on the agency's performance of its
official duties. Cf. Rose, 425 U.S. at 367-69 (noting public
___ ____
interest in administration of internal discipline as it reflects
36
on military preparedness); see also New England Apple, 725 F.2d
___ ____ __________________
at 144 ("The public has a significant, enduring interest in
remaining informed about actions taken by public officials in the
course of their official duties."). The higher the rank of the
public official alleged to have engaged in misconduct, the
greater the legitimate public interest in disclosure is likely to
be. Stern, 737 F.2d at 92, 94; see also Hale v. Department of
_____ ___ ____ ____ _____________
Justice, ____ F.2d ___, ___ (10th Cir. 1992) [1992 U.S. App.
_______
LEXIS 20485, at *17 n.8 (10th Cir. Aug. 31, 1992)] (noting that
governmental misconduct by "high ranking officers" may tip
balance in favor of civil or public interest).
In the case of a low ranking agency official or
employee, a rebuttable presumption may arise against compelled
disclosure of allegations of misconduct which the agency
investigation determines to have been "unsubstantiated," but the
case becomes more complicated if the target is an agency official
of greater authority or importance. In particular, there may be
a greater public interest in disclosure where the allegation
although determined unsubstantiated by the agency may
nevertheless be true, and may pose a serious threat to the public
interest. Or an "unsubstantiated" allegation may bear upon a
claim, supported by independent evidence, that the investigating
agency actively engaged in the concealment of the target
official's misconduct or otherwise failed to perform its mission.
These considerations lend themselves to no mechanical rule of
disclosure or non-disclosure. Nor, on the other side of the
37
Exemption 7(C) equation, can we prescribe a formula for measuring
the impact of the privacy invasion resulting from disclosure.
These and other relevant variables must be determined and weighed
in light of the particular circumstances in each case.
With these general considerations in mind, we turn to
the particular facts before us. It is true, as the Army
suggests, that the Journal neither alleged nor attempted to prove
a cover-up in the IG's investigation. At the same time, we think
the invasion of privacy wrought by disclosure in this case is
unusually slight. The Army already has disclosed one of the two
unsubstantiated allegations and the other is minimally invasive
of privacy, containing as it does a rather blurred suggestion of
possible impropriety. The unsubstantiated allegations are not of
such an intimate nature that the disclosure of the target's
identity normally would be "unwarranted" even though the
information might tangentially implicate the target's performance
of official duties, or the zeal or competence of the
investigators. See, e.g., New England Apple, 725 F.2d at 143;
___ ____ __________________
see also Hunt v. FBI, ___ F.2d ___, ___ (9th Cir. 1992) [No. 91-
___ ____ ____ ___
15613, slip op. at 4-5 (9th Cir. Aug. 6, 1992)]. Under all the
circumstances, and eschewing the per se rules proposed by the
parties, on balance we believe the Exemption 7(C) analysis favors
disclosure.
III
III
CONCLUSION
CONCLUSION
__________
38
The Army voluntarily disclosed redacted versions of the
statements of its nonconfidential sources, redacting more than
the officers' names in some instances. See Vaughn Index A, p.11,
___
8. The Army shall be required to release an unredacted version
of the source statements appearing in the IG Report at p. 8,
17; p. 11, 8; p. 14, 10; p. 15, 3; and p. 17, 5. The
Army nonetheless may redact any reference to persons (other than
the two senior RING officers) who acted as confidential sources
and are identified as such in any nonconfidential source
statement. See, e.g., Vaughn Index A, p. 11, 8.
___ ____
The district court judgment is modified in accordance
_______________________________________________________
herewith, and affirmed as modified; no costs.
____________________________________________
39
Reference
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