of the Church. File I, from which parts of four documents remain withheld and in dispute, contains inter-agency memoranda concerning Hubbard and his various organizations, indexed according to types of federal violations. The Phillips affidavit, as well as the copies of the redacted documents themselves, present ample grounds for legitimate concern on the part of the FBI that federal laws had been or might be violated by L. Ron Hubbard, the Church or affiliated organizations. Among the criminal activities of which the Church or its affiliates were suspected were the unlicensed teaching of medicine and surgery, mail fraud, false representation and misbranding of medical devices, blackmail and tax evasion. This was not a case in which the FBI engaged in indiscriminate collection of information surrounding the Church and its founder in hopes of unearthing a violation of some federal law; rather, the FBI's investigations were prompted by concerned citizens, law enforcement authorities and the Church itself. That a full-scale fraud or criminal proceeding was not ongoing or has not been undertaken is not essential to the invocation of the 7(D) exemption, as long as the sought after materials were amassed for law enforcement purposes. Founding Church of Scientology v. Regan, 216 U.S. App. D.C. 339, 670 F.2d 1158, 1162-63 (D.C.Cir. 1981). The Exemption 7(D) threshold has clearly been satisfied here, since the FBI's concern obviously had a plausible basis and a rational connection to the Church's activities. See Pratt v. Webster, 673 F.2d at 421 (D.C.Cir.1982).
Once the threshold requirements have been satisfied, Exemption 7(D) contains two separate exemptions. Under it, an agency may withhold records which 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 . . . confidential information furnished only by the confidential source." 5 U.S.C. § 552(b)(7)(D). E.g., Duffin v. Carlson, 205 U.S. App. D.C. 1, 636 F.2d 709, 712 (D.C.Cir.1980). With regard to the identities of "confidential sources" which the FBI seeks to withhold, the Church argues that certain of the entities named by the FBI as "confidential sources" are not within the definition of that statutory term. Additionally, the Church asserts that there has been no showing of a confidential relationship between the FBI and the sources it names, such that the exemption would apply.
It is well-established in this circuit that Congress did not intend to distinguish among the types of sources afforded protection under Exemption 7(D). Founding Church of Scientology v. Regan, 670 F.2d at 1161 (quoting Lesar v. United States Department of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472 (D.C. Cir.1980)). The FBI's withholding of the identities of state, local and foreign law enforcement agencies in this case is clearly proper under Baez v. United States Department of Justice, 208 U.S. App. D.C. 199, 647 F.2d 1328, 1340 (D.C.Cir.1980). The Court in Baez held that the word "source" includes "nonfederal entities such as state, local, and foreign law enforcement agencies as well as individuals such as private citizens and paid informants." Id. (citing Lesar v. United States Department of Justice, 636 F.2d at 489) (footnote omitted). The FBI has also invoked Exemption 7(D) to withhold the identities of commercial institutions which provided it with information regarding the Church. This too was proper, since the Congressional objective behind Exemption 7(D), to prevent a "drying up" of law enforcement agencies' sources of information, see 120 Cong.Rec. 36,865, 36,877 (1974) (remarks of Sen. Robert Byrd), applies equally with regard to commercial institutions, compare Katz v. Department of Justice, 498 F. Supp. 177, 184 (S.D.N.Y. 1979); Ferguson v. Kelley, 448 F. Supp. 919, 925 (N.D.Ill.1977), with Dunaway v. Webster, 519 F. Supp. 1059, 1082 (N.D.Cal. 1981); Pacheco v. Federal Bureau of Investigation, 470 F. Supp. 1091, 1103 (D.P.R. 1979), at least in the situation where specific information is requested and there is no claim of agency bad faith, accord Baez v. United States Department of Justice, 647 F.2d at 1341 (concurring opinion).
To establish the required confidentiality of a source under Exemption 7(D), see Lesar v. United States Department of Justice, 636 F.2d at 472, it is only necessary to show that the information was given under an express assurance of confidentiality or in circumstances in which such an assurance could reasonably be inferred. Radowich v. United States Attorney, 658 F.2d 957, 960 (4th Cir.1981) (citing Maroscia v. Levi, 569 F.2d 1000, 1002 (7th Cir. 1977). In this case the Wood and Phillips affidavits state that there is an understanding of confidentiality underlying the FBI's exchange of information with cooperating law enforcement agencies and commercial institutions such as the ones involved here. Both the affidavits state that the FBI has been made aware that unless the confidentiality under which information is exchanged continues, the willingness of these entities to exchange essential information will be reconsidered. In a situation where confidentiality was not only implied, but assumed, the invocation of Exemption 7(D) is clearly proper. Id.
The Church questions the sufficiency of the Wood and Phillips affidavits, arguing that their assertions are not based upon personal knowledge of the facts in this case. See Fed.R.Civ.P. 56(e). Both Wood and Phillips state they are experienced FBI agents, familiar with FBI practice and procedure, and with the documents at issue. They are competent to testify to their own observations upon review of the documents, the procedural history of the Church's attempts to acquire information held by the FBI, the agency's practices and procedures during their own tenure, earlier practices of which they possess knowledge, and their own personal experience to the extent that it bears relevance to this case. See Londrigan v. FBI, 216 U.S. App. D.C. 345, 670 F.2d 1164, 1174 (D.C.Cir.1980). Although neither agent has stated he was present when information was obtained from the confidential sources involved here, an express showing of confidentiality is not required, cf. id. at 1170 & n. 34, when there are other indicia of implied assurances of confidentiality, accord id. at 1174. Examination of copies of the redacted documents at issue here shows that the information withheld was of the type that would be disclosed within a confidential relationship and by sources requiring protection. The Church does not present evidence of agency bad faith or other reason to discount the affidavits, cf. Weisberg v. Department of Justice, 200 U.S. App. D.C. 312, 627 F.2d 365, 368-70 (D.C.Cir.1980); therefore discovery concerning the underlying bases for the conclusions expressed in the affidavits is unnecessary. Military Audit Project v. Casey, 211 U.S. App. D.C. 135, 656 F.2d 724, 751-52 (D.C.Cir.1981). According the affidavits "substantial weight," e.g., Ray v. Turner, 587 F.2d at 1191, and weighing the additional indicia of confidentiality, the Court holds that the sources involved were "confidential sources," the identities of which are protected under Exemption 7(D).
The FBI invokes the second clause of Exemption 7(D) to withhold confidential information furnished only by confidential sources in the course of its criminal investigation of the Church. The Church's argument that these records were not "compiled by a criminal law enforcement authority in the course of a criminal investigation" is contradicted by the assertions of both the Wood and Phillips affidavits. Additionally, the contents of the documents for which this subsection of Exemption 7(D) is invoked themselves suggest that the FBI should pursue investigation of possible criminal activity by the Church, or that it was doing so.
Because the Church raises no substantial question as to the affidavits' reliability, see Military Audit Project v. Casey, 656 F.2d at 750-52, they are, in conjunction with examination of the documents themselves, a sufficient basis to support the FBI's withholding of information furnished by confidential sources under Exemption 7(D). See Pratt v. Webster, 673 F.2d at 424 n. 39 (citing Radowich v. United States Attorney, 658 F.2d at 964).
Under Exemption 2, an agency is not required to disclose matters that are "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). In Crooker v. Bureau of Alcohol, Tobacco & Firearms, 216 U.S. App. D.C. 232, 670 F.2d 1051 (D.C.Cir.1981), the Court of Appeals for this Circuit held that Exemption 2 exempts from mandatory disclosure material which meets the test of "predominant internality" if disclosure significantly risks circumvention of agency regulations or statutes. Id. at 1074. Upholding the use of the exemption to withhold the symbols used to refer to FBI informants in FBI documents, the Court in Lesar v. United States Department of Justice, 636 F.2d at 485, found the exemption applicable to "'routine matters' of 'merely internal significance' in which the public lacks any substantial or legitimate interest." Id. See also Nix v. United States, 572 F.2d 998, 1005 (4th Cir.1978) (FBI routing stamps, cover letters, and secretary initials within the ambit of Exemption 2); Maroscia v. Levi, 569 F.2d 1000, 1002 (7th Cir. 1977) (FBI's administrative and mail routing stamps held within Exemption 2).
In this case, the FBI has invoked Exemption 2 to withhold two lines of one page of Document A-13, an airgram dated April 17, 1951. The information deleted is described by the Wood and Phillips affidavits as "instructions regarding the sensitive administrative handling of the document." Since the information withheld is instruction regarding agency practice and procedure, it clearly meets the test of "predominant internality," Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d at 1067 n. 44. Given that the Wood and Phillips affidavits state that the information is sensitive, it is also true that public disclosure of the information would risk circumvention of federal statutes, id. at 1066, or could impede the effective operation of the FBI, id. at 1075, whole purpose it is to investigate and enforce federal law. Cf. Allen v. CIA, 205 U.S. App. D.C. 159, 636 F.2d 1287, 1289-90 (D.C.Cir.1980) (filing and routing instructions not exempt from disclosure under Exemption 2). Upon evaluation of the "critical considerations" under Exemption 2, Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d at 1073, the Court holds that the FBI's use of the exemption to withhold information from Document A-13 was proper in this case.
An Order consistent with this Memorandum follows.
Upon consideration of plaintiff's motion for summary judgment, defendants' motion for summary judgment, oral argument of counsel and the entire record, it is by the Court this 3rd day of November 1982
ORDERED that defendants' motion for summary judgment is granted, and it is further
ORDERED that plaintiff's motion for summary judgment is denied.