in a FBI criminal investigation, see Miller, 661 F.2d at 627, and defendant has described circumstances from which an assurance of confidentiality may reasonably be implied, the information may be withheld pursuant to Exemption 7(D).
Secondly, the plaintiff notes that although Exemption 7(D) exempts information furnished by a confidential source, defendant does not state that it is withholding any information obtained from a confidential source. It appears that plaintiff is correct; defendant has not stated that any of the information it is withholding is being withheld because it was provided by a confidential source in the course of a criminal investigation. Defendant merely restates the language of the Exemption: "Significantly, protection by exemption from disclosure is afforded by statute to information furnished by the source." Llewellyn Declaration para. 32(A). Therefore, the Court will order defendant to identify precisely what information, if any, is being withheld because it was supplied by a confidential source.
Finally, plaintiff argues that the information furnished by confidential sources is not exempt because defendant has not established that it was collected in the course of "a lawful national security intelligence investigation." Only information from "lawful" investigations is protected. Defendant fails to supply the Court with the facts and law necessary to determine whether the information supplied by the confidential sources was collected in connection with a lawful national security intelligence investigation. Defendant merely states that the investigation of Mr. Levinson's relationship with the Communist Party was "legitimate." See Llewellyn Declaration para. 16. Whether it was or not is impossible to determine from the facts before the Court. Therefore, defendant must submit more detailed affidavits remedying this deficiency.
F. Defendant's Declarations Regarding Segregability Are Not Reasonably Specific.
If an agency submits an affidavit claiming that non-exempt information is not reasonably segregable from exempt information, the non-exempt information may be withheld. See Mead Data Central, Inc. v. Department of the Air Force, 184 U.S. App. D.C. 350, 566 F.2d 242, 260 (D.C. Cir. 1977). Defendant's affidavits, however, are deficient in that they fail to state with sufficient specificity whether non-exempt information is segregable.
Defendant asserts that "any reasonably segregable portions of the classified documents that did not require protection under EO 12356 have been declassified and marked for release unless withholding was otherwise warranted under applicable law," Peterson Affidavit para. 6, and that "every effort was made to provide plaintiff with all reasonably segregable non-exempt portions of the material requested." Llewellyn Affidavit para. 25. Defendant has virtually restated the standard for withholding non-exempt information. In effect, the defendant has stated that he has complied with the FOIA because all "reasonably segregable" information has been released. Such conclusory assertions fall short of the specificity required for a court to properly determine whether the non-exempt information is, in fact, not reasonably segregable. See Mead Data, 566 F.2d at 260. Accordingly, defendant must either release all non-exempt information or submit a detailed index indicating exactly what information is non-exempt and why it would be unreasonable to segregate it from the exempt information.
III. PLAINTIFF'S MOTION FOR IN CAMERA INSPECTION
In the event that the Court determines that the FBI cannot submit a more detailed Vaughn index and affidavits without compromising the confidentiality of the information at issue, plaintiff moves the Court to examine in camera random portions of the withheld information to ensure that the invoked exemptions apply and that all reasonably segregable non-exempt information has been released. Because the Court finds that defendant's Vaughn index is, with the exceptions noted above, adequately detailed an in camera inspection is unnecessary. If defendant is unable to submit a sufficiently detailed supplemental Vaughn index as directed above, the Court will then consider an in camera inspection as a matter of last resort if the plaintiff so moves.
An Order shall issue herewith in accordance with this Opinion.
For the reasons set forth in the Court's Opinion issued herewith, it is, by the Court, this 13th day of April, 1987,
ORDERED that defendant's motion for summary judgment is granted with respect to the information withheld pursuant to Exemption 1, except for information denoted "(b)(1)4b," Exemption 2 and Exemption 7(C); it is
FURTHER ORDERED that defendant's motion for summary judgment is denied with respect to information withheld pursuant to Exemption 1 and denoted "(b)(1)4b" and Exemption 7(D); it is
FURTHER ORDERED that defendant submit within 20 days a supplemental Vaughn index in accordance with the Court's Opinion with respect to information withheld pursuant to Exemption 1 and denoted "(b)(1)4b," Exemption 7(D) and non-exempt information not reasonably segregable; and, it is
FURTHER ORDERED that plaintiff's motion for an in camera inspection is denied without prejudice.