such as a substantial passage of time or factual content or the possible public consequences of disclosure are basically irrelevant. Indeed, even the use of the information in court, by itself, does not breach the confidence of the communication. If the information was confidential at the time it was given to the FBI, the confidentiality remains intact. Thus, it is well recognized that confidentiality is inherently implicit in the giving of the information, and policy considerations require protecting it regardless of considerations such as those presented here. See Dow Jones & Co., Inc. v. Department of Justice, 285 U.S. App. D.C. 247, 908 F.2d 1006 (D.C. Cir. 1990); Schmerler v. FBI, 283 U.S. App. D.C. 349, 900 F.2d 333 (D.C. Cir. 1990); Keys v. Department of Justice, 265 U.S. App. D.C. 189, 830 F.2d 337 (D.C. Cir. 1987).
The mere fact that someone makes a public statement concerning an incident does not constitute a waiver of the Bureau's confidential file. A press account may be erroneous or false or, more likely, incomplete. To the extent the precise information is already public, disclosure of the same information may be required, see Dow Jones, 908 F.2d at 1011, although it may be of no value. To the extent more detailed, different or unrelated information was given the Bureau, such information must still be protected as confidential.
The Bureau's FOIA staff is in no position to explore and investigate word for word the similarity of purported public statements and private statements given in confidence found in its files. It is logical, moreover, to assume that any in-depth FBI interview will concern aspects of an individual's reliability and involvement to an extent not revealed in any press report. Yet this is the very type of confidential information plaintiff still seeks. There is no requirement that confidential information developed by the FBI in the course of a law enforcement investigation must be deemed waived because an informing source made a statement related to the same subject matter to the press.
Resort to Brady v. Maryland as grounds for waiving confidentiality is even more outside the proper role of FOIA. Exceptions cannot be made because of the subject matter or the identity of the requester. See United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989). The FBI FOIA section faces a monumental task, and it must proceed in a uniform, objective manner or the process itself will be compromised.
It has neither the competence nor the authority to make Brady-type judgments. The FBI is not required to determine whether or not a paper sought by a FOIA requester is or is not a paper that presently constitutes or retroactively would have constituted Brady material in one or more state or federal prosecutions. Nor is the FBI required by FOIA to forego a statutory exemption for a document in its possession because the document has been identified as possibly exculpatory. Judicial process is available, both pre-trial and post-trial, for these purposes.
This Court must deal with any claim of exemption by reference to established FOIA standards. Only a policy official somewhere in the Justice Department has discretion to waive an available exemption.
Plaintiff's Motion for Summary Judgment is denied, defendants' Motion for Summary Judgment is granted, and the Amended Complaint is dismissed. An appropriate Order is attached.
ORDER - February 13, 1991, Filed
Upon consideration of the cross-motions for summary judgment, the oppositions thereto, and the entire record herein, and for the reasons stated in the accompanying Memorandum, it is hereby
ORDERED that, as to the issues not resolved by the parties through negotiations, plaintiff's Motion for Summary Judgment is denied; and it is further
ORDERED that, as to the issues not resolved by the parties through negotiations, defendants' Motion for Summary Judgment is granted; and it is further
ORDERED that the Amended Complaint is dismissed in its entirety as to all defendants.