source during a law enforcement investigation. See Simon v. Department of Justice, 299 U.S. App. D.C. 1, 980 F.2d 782, 784 (D.C. Cir. 1992). A source is considered confidential if that source "'provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred.'" " Department of Justice v. Landano, 508 U.S. 165, 124 L. Ed. 2d 84, 113 S. Ct. 2014, 2019-20 (1993) (quoting S. Rep. No. 93-1200, p. 13 (1974)). The government is not entitled to a presumption that the sources who provide information during a law enforcement investigation are confidential sources under FOIA exemption 7(D). Id at , 113 S. Ct. at 2919-23; see also Williams, 59 F.3d at 1158.
The threshold requirement for applying exemption 7(D) is whether the information was created or compiled for law enforcement purposes. Simon, 980 F.2d at 783; Pratt v. Webster, 218 U.S. App. D.C. 17, 673 F.2d 408, 420-21 (D.C. Cir. 1982). There is no requirement that the information be collected because of an alleged violation of federal law, but only that it be compiled for a "federally authorized [law enforcement] purpose." Keys v. United States Department of Justice, 265 U.S. App. D.C. 189, 830 F.2d 337, 342 (D.C. Cir. 1987) (quoting Bevis v. Department of State, 255 U.S. App. D.C. 347, 801 F.2d 1386, 1388 (D.C. Cir. 1986), and adding emphasis). It is facially apparent that the Department of Justice must compile information like that reflected in the Vaughn Index in order to perform its statutory obligations to enforce and administer Section 5 of the Voting Rights Act, as amended. The defendants have not contended otherwise, and they have offered no evidence to refute the nexus between collection of the information and its use. See Keys, 830 F.2d at 340. Consequently, the Court holds that the information, for which the United States claims exemption 7 protection, was compiled for the purpose of law enforcement. See, e.g., Birch v. United States Postal Serv., 256 U.S. App. D.C. 128, 803 F.2d 1206, 1211-10 (D.C. Cir. 1986) (law enforcement purpose satisfied because use of mails falls within statutory authority of agency).
To trigger exemption 7(D)'s protection of the identity of a source, the United States must next establish that the information was in fact provided by a confidential source. This can be done in one of two ways: a source will be confidential if the source "'provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred.'" "Landano, U.S. at , 113 S. Ct. at 2019-20. In its Motion to Quash, its Reply and its Vaughn Index, the United States has not directly stated or offered evidence that the sources were provided express assurances of confidentiality.
In its Motion to Quash, the government merely states that the sources had "an expectation that their identities would remain confidential." Motion to Quash, supra, at 12. While the government is not entitled to a presumption of confidentiality, generic circumstances may exist from which a court can find an implied assurance of confidentiality. Landano, U.S. at , 113 S. Ct. at 2023. In essence, a source may be considered confidential within the meaning of exemption 7(D) if the informant's relation to the circumstances at issue supports an inference of confidentiality. Id, 113 S. Ct. at 2023 (citing favorably the approach adopted by the U.S. Court of Appeals for the D.C. Circuit in Keys, 830 F.2d at 345-46); see also Computer Professionals for Social Responsibility v. United States Secret Service, 315 U.S. App. D.C. 258, 72 F.3d 897, 1996 U.S. App. LEXIS 14, *8, 1996 WL 459, at *8 (D.C. Cir. 1996).
To meet its statutory obligations, Voting Rights staff of the Department of Justice contact individuals in local communities to collect information regarding proposed changes to voting methods, the basis for the proposals and the anticipated effects if implemented. See Motion to Quash, supra, at 12-13. The inquiries are often directed to individuals who are closely associated with decision makers in local or state government and whose livelihoods or personal safety might be in jeopardy if their contact with the Department of Justice was disclosed. The sensitive issue of race relations is central to the Voting Right staff's inquiries and, as reflected in the documents offered in the Vaughn Index, race is often the key underlying component. It requires no analytical gymnastics to conclude that the potential for reprisal is significant against those persons who provide sensitive information, which is often of a racial nature, regarding proposed changes to a method of election in a city subject to Section 5 of the Voting Rights Act, as amended. The history of the civil rights movement is replete with examples of retaliation against African-Americans who have attempted to assert their right to vote, see, e.g., United States v. Bruce, 353 F.2d 474 (1965); United States v. Wood, 295 F.2d 772 (5th Cir.), cert. denied, 369 U.S. 850, 82 S. Ct. 933, 8 L. Ed. 2d 9 (1962); see also Regents of University of California v. Bakke, 438 U.S. 265, 335, 98 S. Ct. 2733, 2771, 57 L. Ed. 2d 750 (1978) (Brennan, J., concurring in the judgment in part and dissenting in part) (quoting Sen. Humphrey), and of reprisal against persons who have demonstrated for the right to vote or who have cooperated with the Department of Justice in its attempts to eradicate racism in southern voting systems. See generally Taylor Branch, Parting the Waters - America in the King Years, 1954-63, at 478-88, 495-504, 507-15, 619-20, 636-40, 712-17 & 720-25 (1988).
Upon examining the material submitted for in camera review, the Court concludes that the relation of the sources to the circumstances at issue supports an implied assurance of confidentiality. The identities of the confidential sources and all information which might reasonably be found to lead to disclosure of such identity may be withheld. See Birch, 803 F.3d at 1212; Pollard v. Federal Bureau of Investigation, 705 F.2d 1151, 1155 (9th Cir. 1983). However, information that does not reveal the source's identity is not protected by exemption 7(D) unless, under the second clause of exemption 7(D), such information was compiled in the course of a criminal or national security investigation. In this case, the second clause is inapplicable--only information that would reasonably lead to the disclosure of the source's identity may be withheld.
Finally, the United States relies upon the common law of the informer's privilege as recognized by the Supreme Court in Roviaro v. United States, 353 U.S. 53, 59-61, 77 S. Ct. 623, 627-28, 1 L. Ed. 2d 639 (1957). Under this qualified privilege, the government may withhold the identity of an informer who furnishes information to the government. Roviaro, 353 U.S. at 59, 77 S. Ct. at 627. This privilege is applicable to both criminal, e.g., McCray v. Illinois, 386 U.S. 300, 87 S. Ct. 1056, 18 L. Ed. 2d 62 (1967); United States v. Green, 216 U.S. App. D.C. 329, 670 F.2d 1148, 1154 (D.C. Cir. 1981), and civil matters, e.g., Hodgson v. Charles Martin Inspectors of Petroleum, Inc., 459 F.2d 303, 305 (5th Cir. 1972); Westinghouse Corp. v. City of Burlington, 122 U.S. App. D.C. 65, 351 F.2d 762, 767 (D.C. Cir. 1965). However, the privilege is not absolute and must yield based upon a showing that the identity of the informer is essential to the requester's case. Roviaro, 353 U.S. at 60, 77 S. Ct. at 627-28; United States v. Brodie, 276 U.S. App. D.C. 328, 871 F.2d 125, 127-28 (D.C. Cir. 1989).
Upon balancing the public interest with the defendants' interest, it is clear that in this case the privilege protecting the informers' identities withstands the defendants' attack. While disclosure of their identities would create the potential for retaliation against the confidential informants, see supra, the defendants' claim to need disclosure in order to identify potential witnesses for trial is, at best, weak. See Defendants' Response, supra, at 13 ("The applicable Section 5 files could very well identify potential witnesses whose testimony could be integral in litigating the Section 2 issues before the Northern District of Georgia.") (emphasis added). The defendants have not shown that disclosure of the informant's identity is essential to the preparation of their case, because alternate means exist to identify potential witnesses for trial. Accepting that their motive is to identify witnesses for trial, the defendants have only shown that disclosure of the confidential informants' identities would be more convenient for them and would assist them in their trial preparations. On the other hand, disclosure of the informer's identities would undermine substantially the Department of Justice's ability to administer the Section 5 program. In sum, the defendants have failed to make the showing necessary to tilt the Roviaro balance towards disclosure of the informants' identities.
The government has nevertheless stretched the informer's privilege to reach beyond that information which would reasonably identify the informer, and it argues that the privilege includes all information provided by the confidential informer. See Motion to Quash, supra, at 14 ("informer's privilege . . . allows the government to withhold information where its interests in confidentiality outweigh any countervailing interests in disclosure"). The government's reliance upon Roviaro as general support for this proposition is misplaced. In fact, Roviaro better supports the view that the privilege applies only to the informer's identity: "where disclosure of the contents would not tend to reveal the identity of any informer, the contents are not privileged." 353 U.S. at 60, 77 S. Ct. at 627. While there is a split of authority on whether information unrelated to the informer's identity is protected under this privilege, see 26A Wright & Graharm, Federal Practice and Procedure: Evidence § 5704, at 379-80 (1992), the law in this Circuit has been clear for over thirty years and it does not support the government's expansive interpretation.
In Westinghouse Electric Corp. v. City of Burlington, Vermont, 122 U.S. App. D.C. 65, 351 F.2d 762 (D.C. Cir. 1965), the Department of Justice, a non-party in the underlying litigation, was served with a subpoena to produce documents relevant to antitrust litigation between private litigants. As in this case, the Department of Justice moved to quash the subpoena based, in part, on the informer's privilege. Rejecting the government's expansive interpretation, the Court of Appeals held that the "identity of the informer, not the content of the communication, is privileged." 351 F.2d at 769. The Court construed Roviaro narrowly: "Only the identity of the informer is privileged. The content of the communication is not privileged unless it would tend to reveal the identity of the informer." Id at 768. In this Circuit, the informer's privilege ends where information unrelated to the informer's identity begins. The United States cannot rely upon the informer's privilege to withhold information that would not reasonably lead to the disclosure of the informer's identity.
The Court has examined those documents for which the United States has asserted a confidentiality privilege and upholds the assertion of such privilege for all documents except:
1. Document 29. This document was previously disclosed to the defendants except for one sentence, which was redacted. The information was provided by a source who waived confidentiality. The redacted information does not appear to be material protected by 28 C.F.R § 50.29(d), FOIA exemption b(7)(D) or the common law informer's privilege;
2. Document 35. This document was previously disclosed to the defendants except for a series of redactions. The information was provided by a source whose identity is confidential. However, the third line in the "comments section" which was redacted, does not appear to be material protected by 28 C.F.R. § 50.29(d), FOIA exemption b(7)(D) or the common law informer's privilege; and
3. Document 42. This document was previously disclosed to the defendants except for two sentences, which were redacted. The information was provided by a source whose identity was not protected by the United States. The redacted information does not appear to be material protected by 28 C.F.R. § 50.29(d), FOIA exemption b(7)(D) or the common law informer's privilege.
Accordingly, for the reasons explained above, it is
ORDERED that the motion to quash is granted in part and denied in part; the subpoena is modified to exclude from its scope documents 1-28, 30-34, and 36-41, and 43-45, as identified in the United States' Vaughn Index; and it is
FURTHER ORDERED that the United States shall, on or before February 14, 1996, disclose the information described above in documents 29, 35 and 42, or show cause by this date by filing a memorandum why such information should not be disclosed.
IT IS SO ORDERED.
January 24, 1996.
JOYCE HENS GREEN
United States District Judge