records or information compiled for law enforcement purposes, but only to the extent that the production . . . (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source.
5 U.S.C. § 552(b)(7)(D).
The FBI contends that the sources were confidential sources, arguing that the methods used by the agency when conducting interviews make it clear to the source that the information is being given confidentially.
Based on my experience as an FBI agent, these factors almost universally create a situation during interviews in which it is clearly, albeit tacitly, understood by all concerned that the information to be provided during the interview is to be afforded maximum confidentiality.
Superneau Declaration P 46. Although plaintiff disputes the sufficiency of this language, contending that the author lacks personal knowledge, his arguments must fail. This circuit recently analyzed the (b)(7)(D) exemption in Dow Jones & Co. v. Department of Justice, 286 U.S. App. D.C. 349, 917 F.2d 571 (D.C. Cir. 1990), clarifying any doubt as to the application of the exemption.
"The law of this circuit is that in the absence of evidence to the contrary, promises of confidentiality are inherently implicit when the FBI solicits information." As long as the department can show "that the information was solicited during the course of law enforcement investigations, the FBI raises the presumption that assurances were given" in exchange for the information. . . . Since the FBI typically promises confidentiality and rarely--if ever--will a source not desire it, only the starkest and most conclusive evidence of non-confidentiality will rebut the presumption.
Dow Jones, 917 F.2d at 576-77 (citations omitted) (quoting Schmerler v. FBI, 283 U.S. App. D.C. 349, 900 F.2d 333, 337 (D.C. Cir. 1990)). Therefore, the fact that the sources were interviewed by the FBI in the course of a law enforcement investigation raises the presumption that they were promised confidentiality, and it is plaintiff's burden to rebut this conclusion. Plaintiff has not met this burden.
Therefore, since the FBI acquired information from these sources during its investigation of Epps's criminal activities, both the names of the confidential sources and the information furnished by them can be withheld.
G. Exemption (b)(7)(E)
The FBI further argues that under exemption (b)(7)(E) it can withhold (1) polygraph charts and lists of polygraph questions, (2) techniques used to protect and/or relocate witnesses, (3) information that, if revealed, would be tantamount to identifying the use of a technique, and (4) mechanics of investigation techniques. Superneau Declaration PP 53-57. The DEA argues that investigative techniques that are not commonly known to the general public, and that cannot be explained on the public record without being compromised, are also protected by (b)(7)(E). Magruder Declaration P 26. Exemption (b)(7)(E) permits the withholding of
records or information compiled for law enforcement purposes, but only to the extent that the production . . . (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.
5 U.S.C. § 552(b)(7)(E).
This exemption is designed to allow the withholding of the type of information involved here. It protects law enforcement agencies from being required to provide information that might help criminals avoid apprehension. See American Soc'y of Pension Actuaries v. Internal Revenue Serv., 746 F. Supp. 188, 190 (D.D.C. 1990). Revealing this information could reasonably be expected to compromise the effectiveness of the techniques and hamper law enforcement. Therefore, the FBI can withhold such information.
H. Exemption (b)(7)(F)
Lastly, the FBI relies on exemption (b)(7)(F) to withhold the names and/or initials of FBI employees, other government employees, and state and local law enforcement officers. Superneau Declaration PP 58-63. The DEA seeks to withhold the "names and identities of DEA Special Agents, Supervisory Special Agents and other law enforcement officers" under the same exemption. Magruder Declaration P 28. Exemption (b)(7)(F) provides nondisclosure of records or information compiled for law enforcement purposes, but only to the extent that the production . . . (F) could reasonably be expected to endanger the life or physical safety of any individual.
5 U.S.C. 552(b)(7)(F).
The same information withheld under exemption (b)(7)(C) may be withheld under exemption (b)(7)(F) to protect against risk of personal injury. Maroscia, 569 F.2d at 1002. Plaintiff and his associates have demonstrated violent tendencies, Superneau Declaration P 59, and revealing the identities of federal agents and other law enforcement personnel could expose those people to harassment or physical injury. Superneau Declaration P 60. These names and/or initials can be withheld to protect the safety of those involved in the Epps investigation.
For the reasons stated above, the Court grants the motion of the USAO, the FBI, and the DEA. The complaint is dismissed without prejudice as to the USAO for lack of subject matter jurisdiction for failure to exhaust administrative remedies. Because the Court finds that the affidavits of the FBI and the DEA adequately support that each item withheld is exempted from disclosure, the Court grants their summary judgment motion. Accordingly, the case is dismissed. An appropriate Order accompanies this Opinion.
Stanley S. Harris
United States District Judge
Date: SEP 15 1992
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 801 F. Supp. 787.
ORDER - September 15, 1992, Filed
For the reasons set forth in the accompanying Opinion, it hereby is
ORDERED, that the motion of defendant United States Attorney's Office to dismiss the portion of plaintiff's complaint as to the USAO is granted without prejudice due to lack of subject matter jurisdiction. It hereby further is
ORDERED, that the summary judgment motion of defendants Federal Bureau of Investigation and Drug Enforcement Administration is granted.
Stanley S. Harris
United States District Judge
Date: SEP 15 1992