Plaintiffs also request the identities of those mentioned in documents who were expected to testify at the criminal trial, had it occurred. Withholding their names is acceptable, the Court believes, because a witness should not lose his right to privacy the moment he agrees to testify at a criminal trial that may never even take place -- as happened in the investigation at issue here.
In sum, the Court finds that defendant has shown the existence of substantial privacy interests in withholding the identities sought by plaintiffs. On the other hand, plaintiffs have not shown a significantly counterbalancing public interest in disclosure, other than their interest in aiding their private litigation. Accordingly, the Court concludes that defendant's withholding of identities under exemption (7)(C) was justified.
B. Exemption (7)(D)
Exemption (7)(D), which protects the assurances of confidentiality given to sources, was also invoked by the FBI. Llewellyn Declaration at 17-20. Because confidentiality is routinely assured to sources by the FBI, a reviewing court should presume confidentiality and not order the disclosure of identities unless there are factors in the record to indicate that confidentiality was not expected by the sources in the particular case. See Miller v. Bell, 661 F.2d 623, 627 (7th Cir. 1981).
Plaintiffs argue that information in the record of the instant case shows that confidentiality was not expected by at least some sources in this matter. They note that an affidavit by an FBI agent identified by name several employees of the Recording Industry Association of America, as well as the organization itself, as sources for the investigation against plaintiffs. Opposition at 11. In addition, they point out that the criminal information filed against plaintiffs listed "numerous copyright owners" who may have supplied information to investigators. Again, plaintiffs also argue that persons who were expected to testify at trial could not have expected that their identities remain confidential. Opposition at 12.
The Court, however, agrees with defendant that the limited mention of sources in documentation and the fact that certain sources may have testified at trial does not destroy these or other persons' rights of confidentiality. See Miller, 661 F.2d at 627-28. Plaintiff argues persuasively that "if the information plaintiffs seek already were public, it would not be seeking the same information in this FOIA lawsuit." Reply at 6. The fact that certain names are mentioned does not destroy confidentiality; plaintiffs do not know who said what to the investigators. Indeed, it seems likely that plaintiffs seek to try to "match" names with statements, thus destroying the confidentiality protected by exemption (7)(D). Wisely, a number of courts have held that disclosure of identity, by whatever means, does not automatically obliterate the remaining protection against confidentiality. See, e.g., Irons v. FBI, 811 F.2d 681, 685-87 (1st Cir. 1987) (an initial willingness to testify does not waive the right to privacy); Weisberg v. United States Department of Justice, 240 U.S. App. D.C. 339, 745 F.2d 1476, 1491 (D.C. Cir. 1984) (publicity does not destroy confidentiality).
In sum, the Court finds that the limited disclosure of names noted by plaintiffs does not overcome the strong presumption under exemption (7)(D) in favor of withholding further information to preserve the confidentiality of sources. Accordingly, the Court concludes that the FBI properly raised exemption (7)(D) for the withheld information.
IV. Attorney's Fees
Plaintiffs also seek attorney's fees. Under a provision of FOIA, plaintiffs can recover attorney's fees if they have "substantially prevailed" in getting the materials requested in the FOIA suit. 5 U.S.C. § 552(a)(4)(E). In the instant case, defendant admits that a because of a clerical error,
the FBI did not release the bulk of the documents requested until after plaintiffs filed this suit. After the suit was filed, defendant voluntarily conducted a new search, which revealed that most of the documents had been mistakenly withheld. Defendant's Supplement to Reply at 1-2.
Although a plaintiff must "substantially prevail" to recover attorney's fees, a court order compelling disclosure is not a prerequisite to a court's award of attorney's fees. Pyramid Lake Paiute Tribe v. United States Department of Justice, 242 U.S. App. D.C. 269, 750 F.2d 117, 119 (D.C. Cir. 1984); Foster v. Boorstin, 182 U.S. App. D.C. 342, 561 F.2d 340, 342 (D.C. Cir. 1977). Absent a court order, the plaintiff must show that prosecution of the action "could reasonably be regarded as necessary to obtain the information . . . and that a causal nexus exists between that action and the agency's surrender of the information." Pyramid Lake Paiute Tribe, 750 F.2d at 118-19 (citing Cox v. United States Department of Justice, 195 U.S. App. D.C. 189, 601 F.2d 1, 6 (D.C. Cir. 1979)).
In the instant case, the facts presented to the Court lead it to believe that it was the filing of this suit which caused the FBI to recognize its mistake, and it appears that such a suit was perhaps the only reasonable way that plaintiffs could have made the FBI recognize its mistake. True, this is not the prototypical FOIA case in which a winning plaintiff seeks attorney's fees. However, the Court believes that agency negligence in failing to release documents that are clearly releasable may be more deserving of the assessment of attorney's fees than agency failure to release documents because of a incorrect legal impression that they were legally protected from release. Therefore, the Court cannot at this time grant summary judgment in favor of defendant on this issue.
Accordingly, this 17 day of January, 1989, it is
ORDERED that defendant's motion for summary judgment with regard to defendant's request for information is GRANTED; it is further
ORDERED that defendant's motion for summary judgment with regard to the issue of attorney's fees under FOIA is DENIED.