Exemption 7(D) of the Freedom of Information Act - the Evidentiary Showing the Government Must Make to Establish That a Source Is Confidential

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I. INTRODUCTION

In United States Department of Justice v. Landano,(1) the Supreme Court held that Federal Bureau of Investigation (FBI) sources in criminal investigations are not presumed to be "confidential sources" pursuant to Exemption 7(D) of the Freedom of Information Act (FOIA).(2) The Court established two factors in determining whether or not a particular source is presumed confidential: (1) the nature of the crime and (2) the source's relation to the crime.(3) these considerations support an inference that the source gave information in confidence, then the source qualifies as a confidential source.(4)

This Note examines the Court's treatment in Landano of the tension between the broad disclosure of FOIA and the broad protection from disclosure of Exemption 7(D). This Note contends that the Court properly interpreted the statute as it currently exists. However, this Note suggests that a rebuttable presumption of confidentiality for FBI sources in criminal investigations would better serve Exemption 7(D)'s purpose of effective law enforcement without compromising FOIA's purpose of public scrutiny. Thus, this Note argues that Congress should amend Exemption 7(D) of FOIA to provide a presumption of confidentiality.

II. LEGISLATIVE AND JUDICIAL BACKGROUND

A. LEGISLATIVE HISTORY

In 1966, Congress enacted FOIA to protect "the public's right to know the operations of its Government" by "establish[ing] a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language."(5) Eager to strengthen this philosophy of full disclosure, Congress amended the statute in 1974.(6) The amendment required that the Government specify some harm in order to claim the exemption" instead of "affording all law enforcement matters a blanket exemption."(7) Congress intended "to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed."(8)

Congress expressly limited the disclosure by delineating exemptions, but did not intend them to detract from FOIA's policy of public disclosure.(9) Thus, exemptions generally are construed narrowly.(10) Nonetheless, the public's interest extends only to information that exposes the government's performance of its duties,(11) and the exemptions are intended to have meaningful reach and application.(12) Furthermore, since FOIA was not intended as a supplement for discovery,(13) litigants (such as Landano) merely have the same right to information as the rest of the public; their claim cannot be enhanced by their predicament.(14)

Despite the narrow construction of the exemptions, when Congress first enacted FOIA, Exemption 7 broadly protected all law enforcement investigatory files.(15) Congress recognized that "it is also necessary for the very operation of our Government to allow it to keep confidential certain material, such as the investigatory files of the [FBI]."(16) While Congress wanted to strengthen disclosure in 1974, it simultaneously wanted to enact a broad exemption for law enforcement.(17) Consequently, it created Exemption 7(D), which, according to Senator Hart (who authored and proposed the exemption), allowed the FBI "not only [to] withhold information which would disclose the identity of a confidential source but also [to] provide blanket protection for any information supplied by a confidential source. . . . [A]ll the FBI has to do is to state that the information was furnished by a confidential source and it is exempt."(18) Additionally, in 1986 Congress amended FOIA and further broadened Exemption 7(D).(19) The exemption now protects a wide range of information.

[Exemption 7(D) protects] records or information compiled for law

enforcement purposes, but only to the extent that the production of

such law enforcement records or information . …