Davin v. Dept of Justice

• Court: Court of Appeals for the Third Circuit
• Decided: August 1, 1995
• Docket: 94-3590
• Status: Unknown

Opinion

Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit

8-1-1995

Davin v Dept of Justice Precedential or Non-Precedential:

Docket 94-3590

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995

Recommended Citation "Davin v Dept of Justice" (1995). 1995 Decisions. Paper 203. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/203

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 94-3590

ERIC DAVIN, Appellant v.

UNITED STATES DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 92-cv-01122)

Argued May 16, 1995 BEFORE: COWEN, LEWIS and GARTH Circuit Judges

(Filed August 1, l995 )

Marketa Sims (argued) Reed, Smith, Shaw & McClay 435 Sixth Avenue Pittsburgh, PA 15219-1886

COUNSEL FOR APPELLANT ERIC DAVIN

Bonnie R. Schlueter Michael L. Ivory (argued) Office of United States Attorney 633 United States Post Office and Courthouse Pittsburgh, PA 15219

COUNSEL FOR APPELLEE U.S. DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION

OPINION

1 COWEN, Circuit Judge.

Eric Davin appeals from the order of the district court

granting summary judgment in favor of the United States

Department of Justice, Federal Bureau of Investigation ("the FBI"

or "the government") in a Freedom of Information Act ("FOIA")

action. In response to a FOIA request by Davin, the FBI

submitted to the district court a Vaughn index that set forth

coded justifications and corresponding explanations for its

withholding of approximately 7,400 pages of information. Because

the Vaughn index submitted by the government did not sufficiently

describe the information withheld, the district court did not

have an adequate factual basis for determining whether the

claimed exemptions applied to the individual documents.

Accordingly, we will reverse the order of the district court and

remand this matter for further determinations consistent with

principles articulated in this opinion.

I.

Davin is a graduate history student at the University

of Pittsburgh in the field of labor history. In order to

complete his doctoral dissertation, in April 1986 Davin filed a

FOIA request with the FBI seeking "a complete and thorough search

of all filing systems and locations for all records . . .

pertaining to David Lasser and The Workers Alliance of America."

App. at 99 (emphasis in original). The Workers Alliance of

2 America ("WAA") was a nationwide organization representing the

interests of thousands of unemployed individuals during the

1930's and 1940's. For a time, the WAA was headed by David

Lasser. Because the WAA did not keep minutes of its meetings,

there are no other archives of information on its activities.

Lasser, who is now in his nineties, has provided the FBI with a

letter authorizing release of his files.

The WAA was investigated by the FBI during the 1930's

after the FBI received information that the organization was a

front for the Communist Party of America. The purpose of the

investigation was to determine the extent of Communist influence,

and the identity of WAA members who were members of the Communist

Party at the time. The FBI also investigated Lasser. According

to the FBI, Communists had captured positions of control within

the WAA by 1936. In 1940, Lasser resigned, claiming the WAA was

a front organization for the Communist Party.

In response to Davin's request, the FBI located nine

relevant files at either national headquarters or at the New York

field office. The FBI described the files as follows: FBIHQ main file, 61-7586, (45 sections) corresponds to NYFO main file, 100-3638, (6 sections). Both files pertain to an internal security investigation and were compiled for law enforcement purposes. A 61 classification is entitled "Treason or Misprision of Treason" and involves violations of Title 18, U.S.C., Sections 2381, 2382, 2389, 2390, 756 and 757. A 100 classification is entitled "Domestic Security" and covers investigations by the FBI in the domestic security field; e.g., Smith Act violations. The Attorney General declared WAA to be within the purview of

3 Executive Order 9835, and later Executive Order 10450. The first serial is dated March 5, 1936, and the last serial is dated October 21, 1960. . . . FBIHQ main file, 124-2592 is a loyalty investigation of David Lasser consisting of two sections. This classification covers security and loyalty investigations of personnel employed by or under consideration of employment with the European Recovery Program. Investigation was conducted under Public Law 472, 80th Congress. The first serial in this file is dated January 25, 1949, and the last serial is dated October 29, 1951.

FBIHQ main file 121-413, (Loyalty of Government Employees) consisting of one section, pertains to a preliminary inquiry to ascertain if David Lasser was associated with the Communist Party or its front organizations. Investigation of David Lasser under the provision of Executive Order 9835 . . . was instituted by the FBI on April 22, 1948. The first serial of this file is dated October 24, 1947, and the last serial is dated October 30, 1963.

FBIHQ main file, 151-748 involves one section. This classification covers referrals from the Office of Personnel Management where an allegation has been received regarding an applicant's loyalty to the U.S. Government. The Agency for International Development had requested the FBI to conduct a full field investigation under the provisions of Public Law 298, The Foreign Assistance Act of 1961, as amended. David Lasser was interviewed by the FBI in 1963 under the provisions of Executive Order 10450 . . . . The first serial is dated December 12, 1963, and the last serial in this file is dated January 29, 1976.

FBIHQ main file, 126-706 consists of one section concerning a name check request on David Lasser for clearance for access to highly classified material by National Security Resources Board. This classification covers background

4 investigation conducted on individuals who are to be assigned to duties under the International Development Program. The first and last serials are dated November 14, 1950, and November 15, 1950, respectively.

FBIHQ main file 65-66314, (Espionage) consisting of one section which contains documentation based on information received concerning the possibility that David Lasser could be some individual who could divert information to the detriment of the defense of the United States. No investigation was conducted. This file was opened on September 22, 1960 and closed on September 27, 1960.

FBIHQ main file, 47-13920 is a two-page file which contains information that a representative of WAA had made a claim that he had authority from the Federal Government to represent individuals in claims of various municipalities. This file was opened and closed on February 19, 1938. This classification is entitled "Impersonation" and covers violations of Title 18, U.S.C., Sections 912, 913, 915, and 916.

FBIHQ main file, 61-10652 (two sections) was initially compiled to determine if David Lasser might act as an informant for the FBI or if he would be willing to supply details concerning Communist Party activities in WAA. The first serial of this file is dated June 20, 1940, and the last document in the file is dated February 8, 1951.

Declaration of Special Agent Robert A. Moran, App. at 60-63 (footnotes omitted) [hereinafter all citations to the Appendix refer to the Moran declaration].

The FBI asserts that its records relating to the WAA

total approximately 9,200 pages and its records on David Lasser

contain approximately 1,200 pages. As of May 18, 1991, the FBI

had released to Davin only 113 pages regarding the WAA and 150

pages on Lasser.

5 In April 1992, Davin filed a complaint for injunctive

relief demanding the production of the documents. Subsequently,

pursuant to an agreement between the parties, Davin and the

government submitted a joint motion to stay the case for 130 days

to permit the government to submit a Vaughn index.1 This motion

stipulated that the FBI had reviewed 6,889 documents pursuant to

Davin's FOIA request, had released 2,970 pages to Davin, and

claimed exemptions to the remaining 3,919 pages. The joint

motion further provided that the government would select

approximately 500 documents (roughly every fourteenth or

fifteenth page), compile a Vaughn index and submit it to the

court with a motion for summary judgment.

Included in the government's subsequent motion for

summary judgment was a declaration by FBI Special Agent Robert

Moran. The purpose of Moran's declaration was to provide the

court and Davin with a description of the material being withheld

and justifications for the government's assertions of FOIA

exemptions to withhold certain information contained in the

records. The declaration consisted of correspondences concerning

Davin's request, an explanation of the FBI's central records

system and electronic surveillance index, a list of records

pertaining to Davin's request, a sampling and definition of

1 A Vaughn index is an index correlating each withheld document, or a portion thereof, with a specific exemption and relevant part of an agency's justification for nondisclosure. The Vaughn index is a tool designed to aid the court in determining whether the agency has properly withheld the information requested. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (Vaughn I), cert. denied, 415 U.S. 977, 94 S. Ct. 1564 (1974).

6 documents, a detailed explanation of the coded format used for

justification of deleted material, and the justification for

redacted materials.

A sampling of 500 pages was selected from the files.

Each page was identified with a document number and indicated the

file from which it came. An explanation of the types of

documents in the sampling was also supplied. Portions of the

documents were redacted. Located in proximity to the redacted

material was a series of letters and numbers which corresponded

to specific FOIA exemptions. In those instances where an entire

page was redacted, justification code numbers for the withholding

were substituted for the deleted page.

To determine the pertinent justification for deleted

material on each processed document, the reader would refer to

the document in question, note the code number adjacent to the

deleted material and refer to the corresponding code categories.

The memorandum then listed twenty-seven justification categories

for withholding information, along with an explanation of the

various categories.

Moran's declaration listed the FBI Main Files regarding

Lasser and the WAA, but did not contain any factual description

of the specific documents and portions of the documents withheld.

Instead, Special Agent Moran offered generic explanations of the

"justification categories" used to encode the Vaughn index. No

specific index was created to factually link the generic

descriptions with the encoded deletions, and the explanations

themselves did not refer to Lasser or the WAA or any other fact

7 connected with this action. No attempt was made to provide an

individual rationale for the withholding of specific information.

The government asserted that of the 10,400 pages

identified (9,200 on the WAA and 1,200 on Lasser), 2,970 had been

released to Davin and that the remaining pages were being

withheld under the following FOIA exemptions: (1) Category

(b)(7)(C) Unwarranted Invasion of Personal Privacy; (2) Category

(b)(7)(D) Confidential Source Material; (3) Category (b)(7)(E)

Investigative Techniques and Procedures; and (4) Category (b)(2)

Information related Solely to the Internal Personnel Rules and

Practices of an Agency.

Following receipt of the declaration and exhibits,

Davin filed a motion to compel production of documents for in

camera review, arguing that the district court could not make an

accurate determination of the validity of the redactions based

upon the government's Vaughn index without review of the

documents. Davin asserted that the government had failed to

provide any factual information describing the individual

documents withheld and thus failed to demonstrate the

applicability of the exemptions it claimed.

The district court ordered an evidentiary hearing in

which Agent Moran testified about twenty-five of the

approximately 7,400 documents that had been withheld. These

documents were selected by Davin from the "Treason or Misprision

of Treason" file. Twenty-two of these pages were blackened out

in their entirety. Agent Moran described the various categories

8 under which the documents were withheld, although he did not

testify to the contents of the withheld documents themselves.

The district court held that Agent Moran's testimony,

together with the Vaughn index, demonstrated with "reasonable

specificity" why the documents were exempt from disclosure.

Accordingly, the district court granted the government's motion

for summary judgment and denied Davin's motion to compel in

camera examination. This appeal followed.

II.

A two-tiered test governs our review of an order of the

district court granting summary judgment in proceedings seeking

disclosure of information under FOIA. We must "first decide

whether the district court had an adequate factual basis for its

determination." McDonnell v. United States, 4 F.3d 1227, 1242

(3d Cir. 1993) (citing Patterson by Patterson v. FBI, 893 F.2d

595, 600 (3d Cir.), cert. denied, 498 U.S. 812, 111 S. Ct. 48

(1990)). This review is de novo and requires us to examine the affidavits below to determine "whether the agency's explanation

was full and specific enough to afford the FOIA requester a

meaningful opportunity to contest, and the district court an

adequate foundation to review, the soundness of the withholding."

Id. (quoting King v. Department of Justice, 830 F.2d 210, 217-18

(D.C. Cir. 1987)).

9 After reviewing the affidavits, "[i]f this Court

concludes that the affidavits presented a sufficient factual

basis for the district court's determination, it must then decide

whether that determination was clearly erroneous." Id.

(citations omitted). Factual findings are clearly erroneous "'if

the findings are unsupported by substantial evidence, lack

adequate evidentiary support in the record, are against the clear

weight of the evidence or where the district court has

misapprehended the weight of the evidence.'" Id. (quoting Lame

v. Department of Justice, 767 F.2d 66, 70 (3d Cir. 1985) (Lame

II)).

The district court exercised jurisdiction in this

matter pursuant to 5 U.S.C. § 552(a)(4)(B) (1988) and 28 U.S.C.

§1331 (1988). Our jurisdiction in this appeal rests on 28 U.S.C.

§ 1291 (1988).

III.

Congress enacted the Freedom of Information Act, 5

U.S.C. § 552, in order "to facilitate public access to Government

documents." United States Dep't of State v. Ray, 502 U.S. 164, 173, 112 S. Ct. 541, 547 (1991). Premised on the belief that "an

informed electorate is vital to the proper operation of a

democracy," FOIA was intended to create an expedient tool for

disseminating information and holding the government accountable.

Coastal States Gas Corp. v. Department of Energy, 644 F.2d 969,

974 (3d Cir. 1981) (quoting S. Rep. No. 813, 89th Cong., 1st

Sess. 3 (1965)). Consistent with this purpose, FOIA requires

10 governmental agencies to make promptly available any records

requested unless the requested information is exempt from

disclosure under one of the nine specific exemptions set forth in

the FOIA statute itself. 5 U.S.C. § 552(b) (1988 & Supp. V

1993).

The Act creates a strong presumption in favor of

disclosure, Department of Air Force v. Rose, 425 U.S. 352, 361,

96 S. Ct. 1595, 1599 (1976), and requires the district court to

conduct a de novo review of a government agency's determination

to withhold requested information. 5 U.S.C. § 552(a)(4)(B). The

agency has the burden of showing that a statutory exemption

applies. Id. Moreover, any reasonably segregable portion of a

record must be made available to the person requesting the

record. 5 U.S.C. § 552(b).

The review of FOIA cases "is made difficult by the fact

that the party seeking disclosure does not know the contents of

the information sought and is, therefore, helpless to contradict

the government's description of the information or effectively

assist the trial judge." Ferri v. Bell, 645 F.2d 1213, 1222 (3d

Cir. 1981), modified, 671 F.2d 769 (3d Cir. 1992). In order to

"transform a potentially ineffective, inquisitorial proceeding

against an agency that controls information into a meaningful

adversarial process," the reviewing court may order the

government to prepare a "Vaughn" index, identifying each document

withheld, the statutory exemption claimed, and a particularized

description of how each document withheld falls within a

statutory exemption. Coastal States, 644 F.2d at 984. We have

11 adopted the principles and procedures outlined in Vaughn. See,

e.g., Ferri, 645 F.2d at 1222 & n.11.

The function of a Vaughn index and public affidavit is

to establish a detailed factual basis for application of the

claimed FOIA exemptions to each of the documents withheld. In

McDonnell v. United States, 4 F.3d 1227 (3d Cir. 1993), we

explained: The significance of agency affidavits in a FOIA case cannot be underestimated . . . . Affidavits submitted by a governmental agency in justification for its exemption claims must therefore strive to correct, however imperfectly, the asymmetrical distribution of knowledge that characterizes FOIA litigation. The detailed public index which in Vaughn we required of withholding agencies is intended to do just that . . . . Thus, when an agency seeks to withhold information, it must provide "a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply."

Id. at 1241 (quoting King, 830 F.2d at 218-19).

While there is no set formula for a Vaughn index, the

hallmark test is "that the requester and the trial judge be able

to derive from the index a clear explanation of why each document

or portion of a document withheld is putatively exempt from

disclosure." Hinton v. Department of Justice, 844 F.2d 126, 129

(3d Cir. 1988). An agency is entitled to summary judgment when

the agency's affidavits: describe the withheld information and the justification for withholding with reasonable specificity, demonstrating a logical connection between the information and the

12 claimed exemption . . ., and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.

American Friends Serv. Comm. v. Department of Defense, 831 F.2d

441, 444 (3d Cir. 1987) (quoting Abbotts v. Nuclear Regulatory

Comm., 766 F.2d 604, 606 (D.C. Cir. 1985) (internal quotations

and citations omitted)).

A.

The fundamental inquiry in this case centers on whether

the "categorical" method of indexing utilized by the government

constitutes an adequate Vaughn index. The government offered the

declaration of Agent Moran as its Vaughn index. The Moran

declaration described the FBI's generalized FOIA procedures,

including a summary of exemption "justification categories." It

set forth a detailed explanation of the justification categories

used to redact the material included in the declaration. Each

justification category was denoted by a three or four letter

code. These codes appeared next to the redacted portions of the

exhibits. The government maintains that this declaration, in

conjunction with Agent Moran's testimony, was a sufficiently

adequate Vaughn index that permitted the district court to review

all of the exemption claims advanced.

In its brief the government provided representative

examples of the categorical indexing method it used. For

instance, the declaration explained that code "b7D-3" appearing

next to the first redacted paragraph means that the information

13 was withheld because it was provided to the FBI by a source who

had "received an express promise that it would be held in

confidence" and contained information that could lead to the

source's identity. App. at 87. The declaration further

explained that disclosure had the potential of causing "great

harm to the source," and of harming the FBI because of the

"chilling effect on the activities and cooperation of other

sources." App. at 88. As a second example, the government

demonstrated that the list of names and addresses provided by the

confidential source were withheld under category "b7C-6." The

declaration explained that this category means that the

information was withheld to prevent an unwarranted invasion of

privacy of the individuals named, since disclosure could

"announce to the world that they were of investigative interest

to the FBI and therefore permit derogatory inferences to be made

therefrom." App. at 79.

The government asserts that the use of a coded index

system sufficiently fulfills the functions served by the classic

Vaughn index, but in a more efficient and clear manner. Davin

argues that such a categorical approach, without the inclusion of

specific factual information that correlates the claimed

exemptions to the withheld documents, is not a sufficient Vaughn index. We agree with Davin.

In McDonnell we held that in order for the FBI to

fulfill its burden to establish that materials withheld are

exempt from FOIA, "[t]he agency may meet this burden by filing

affidavits describing the material withheld and detailing why it

14 fits within the claimed exemption." McDonnell, 4 F.3d at 1241

(emphasis added) (citing King, 830 F.2d at 217-18). See also

Lame v. United States Dep't of Justice, 654 F.2d 917, 928 (3d

Cir. 1981) (Lame I) (the district court "should have had an

explanation by the FBI of why in each case disclosure would

result in embarrassment or harassment either to the individual

interviewed or to third parties" (emphasis added)). This

precedent requires that the agency provide the "connective

tissue" between the document, the deletion, the exemption and the

explanation. It is insufficient for the agency to simply cite

categorical codes, and then provide a generic explanation of what

the codes signify. See King, 830 F.2d at 223-34 ("A withholding

agency must describe each document or portion thereof withheld,

and for each withholding it must discuss the consequences of

disclosing the sought-after information. . . . Categorical

description of redacted material coupled with categorical

indication of anticipated consequences of disclosure is clearly

inadequate." (emphasis in original)(footnote omitted)).

In the case at hand, the government's references to

causing "great harm to the source," App. at 88, and to the

possibility that disclosure could "announce to the world that

they were of investigative interest to the FBI and therefore

permit derogatory inferences to be made therefrom," App. at 79,

are generic explanations broad enough to apply to any FOIA

request. They are not tied to the content of the specific

redactions. The justification codes and the explanations offered

by the government lack an explanation of how the release of the

15 information would violate the privacy interests and pose

potential risk to certain individuals. Moreover, throughout his

testimony, Agent Moran reiterated the broad categorical

explanations recited in his declaration; he did not refer to

specific facts. Thus, Agent Moran's testimony sheds no new light

on the government's reasons for nondisclosure.

While the use of the categorical method does not per se

render a Vaughn index inadequate, an agency using justification

codes must also include specific factual information concerning

the documents withheld and correlate the claimed exemptions to

the withheld documents. Compare Keys v. United States Dep't of

Justice, 830 F.2d 337, 350 (D.C. Cir. 1987) (upholding use of

indexing system where "the affidavit placed each document into

its historical and investigative context") with King, 830 F.2d at

221 (similar coding system found wanting "because we are left

with no contextual description for documents or substantial

portions of documents withheld in their entirety") and Wiener v.

FBI, 943 F.2d 972, 978-79 (9th Cir. 1991) ("boilerplate"

explanations of coded index found inadequate since "[n]o effort

is made to tailor the explanation to the specific document

withheld"), cert. denied, U.S. , 112 S. Ct. 3013 (1992). As

the Court of Appeals for the D.C. Circuit warned: "the goal of

descriptive accuracy is not to be sacrificed to the niceties of a

particular classification scheme." King, 830 F.2d at 225. Thus,

"a coding system might be employed to indicate applicability of a

given response to more than one segment of redacted material,"

but only "so long as the information supplied remains responsive

16 to each deleted segment without becoming categorical in tenor."

Id. at 224 (emphasis added).

The Vaughn index provided by the government affords

Davin little or no meaningful opportunity to argue for release of

particular documents. Indeed, the index provides no information

about particular documents that might be useful in evaluating the

propriety of the decision to withhold. Because of the paucity of

factual information related to the district court, the

categorical justification codes could not provide a sufficient

factual basis from which the district court could make its

determination. Accordingly, on the record before us, we hold

that the district court could not fulfill its duty of ruling on

the applicability of the claimed exemptions on the basis of the

coded indexing system utilized by the government for its Vaughn

index.

B.

Davin further contends that the district court erred in

failing to require the FBI to release all reasonably segregable

portions of the sample documents. Davin also maintains that the

FBI is required under FOIA to provide him with all reasonably

segregable material of all the 10,000 pages of material, not just the sampled material. FOIA mandates that "[a]ny reasonable

segregable portion of a record shall be provided to any person

requesting such record after deletion of the portions which are

exempt under this subsection." 5 U.S.C. § 552(b). In

determining segregability, courts must construe the exemptions

17 narrowly with the emphasis on disclosure. Wightman v. Bureau of

Alcohol, Tobacco & Firearms, 755 F.2d 979, 982 (1st Cir. 1985).

The district court found that the FBI complied with its

obligation.

It is the agency's burden to prove that the withheld

portions are not segregable from the non-exempt material. 5

U.S.C. § 552(a)(4)(B). In the case at bar, the only evidence

submitted by the government in support of its position was Agent

Moran's conclusory statement that "[e]very effort has been made

to provide the plaintiff with all reasonably segregable portions

on [sic] the sampled material." App. at 67. Nowhere in Moran's

declaration did he describe the process by which he determined

that all reasonably segregable material of each of the withheld

documents or portions of documents had been released. Nor did

the government provide a factual recitation of why certain

materials are not reasonably segregable.

In its brief the government points, as an example, to

Exhibits C-1 through C-7 which Agent Moran explained had been

provided by a source under the express promise of

confidentiality. Government's Brief at 19-20. According to the

government, these documents contained a narrative in which a

number of individuals involved with the WAA were named. Exhibit

C-1 bore two coded references: "b7C-6" and "b7D-3." The

government explained that category b7C-6 refers to the names of

individuals who are of investigative interest to the FBI.

According to Moran's declaration, the release of this information

would constitute an unwarranted invasion of privacy. App. at 79-

18 80. Category b7D-3 indicates that the information was provided

by an individual who had received an express promise of

confidentiality. App. at 87. The government notes that a

portion of C-8 was released because the identity of the

confidential source could not be ascertained.

This representative example provided by the government

itself, as an illustration of its proper efforts to provide Davin

with all reasonably segregable information, in fact reflects the

inadequacy of the government's efforts. The government fails to

indicate why the privacy interests at stake could not be

protected simply by redacting particular identifying information.

Without some further elaboration of the document's contents,

Davin is unable to dispute the FBI's assertion that more

information is not segregable. Cf. Church of Scientology Int'l

v. United States Dep't of Justice, 30 F.3d 224, 232 n.11 (1st

Cir. 1994) (the government "needs to provide more than [an]

unsupported conclusion to justify withholding the whole document.

Is the document full of personal anecdotes, whose perspective

would tend to reveal the declarant, thus supporting this

conclusion? Or does the document simply give one individual's

description of the way the Church generally treats members, and

thus arguably include material that could be segregated from the

identifying information?").

The Moran declaration is comprised of assertions that

documents were withheld because they contain the type of

information generally protected by a particular exemption. The

statements regarding segregability are wholly conclusory,

19 providing no information that would enable Davin to evaluate the

FBI's decisions to withhold. On remand, the government must

provide an adequate factual basis for the district court to

determine whether Davin has been afforded all reasonably

segregable information.2

Furthermore, the government must provide Davin with all

reasonably segregable non-exempt information, not just the non-

exempt information found in the sampled documents. The

government maintains that it is only required to produce all

reasonably segregable material from the sampled material. It

claims that because Davin agreed to a representative sampling of

approximately 500 pages of the 6,689 documents selected he

"should abide by his decision." Government's Brief at 19.

2 In addition to making findings without sufficient evidentiary support, the district court may have also erred in holding that more information was not reasonably segregable. Although our scope of review on appeal is limited in this context, see McDonnell, 4 F.3d at 1242, it appears that certain information could be disclosed without jeopardizing possibly exempt information. We note the colloquy between Agent Moran and counsel for Davin regarding the deletions of certain headings in the table of contents of a 200 page report. Agent Moran testified that the deletions did not contain the name of a confidential source or confidential information, but rather the headings were redacted "because some of the information would indicate possibly a particular area of the country" from where the informant was operating and might, therefore, lead the requester back to the identity of a particular confidential source. App. at 618. We do not find it likely that a reference to a particular "area of the country" would lead to the identity of individuals who were given promises of confidentiality. On remand, if after receiving a sufficient factual basis the court determines that certain information is exempt from disclosure, the district court should reexamine whether seemingly non- identifying information such as this geographical information should also be withheld.

20 The purpose of the Vaughn index is to help specify in a

large document which portions of the document are disclosable and

which are allegedly exempt. Vaughn v. Rosen, 484 F.2d 820, 827

(D.C. Cir. 1973) (Vaughn I), cert. denied, 415 U.S. 977, 94 S.

Ct. 1564 (1974). The indexing system "subdivide[s] the document

under consideration into manageable parts," so that once the

issues are focused, the reviewing court will have an easier task

"rul[ing] on each element of the itemized list" than it would if

the "agency were permitted to make a generalized argument in

favor of exemption." Id.

Courts have upheld the use of a representative sample,

such as the sample stipulated to in this case. See, e.g.,

Weisberg v. United States Dep't of Justice, 745 F.2d 1476, 1490

(D.C. Cir. 1984); Vaughn v. Rosen, 523 F.2d 1136, 1140 (D.C. Cir.

1975) (Vaughn II). Nevertheless, any decision as to those

documents is applicable to all of the documents at issue. See

Vaughn II, 523 F.2d at 1140 (noting that parties stipulated that

any decision regarding the representative sample is applicable to

all of the documents). Accordingly, on remand the district court

should reexamine the material in the sample, and any rulings it

makes regarding those materials must then be applied to the

entire body of the requested information. The government is then

obligated to provide Davin all the reasonably segregable material

of all the 10,000 pages requested, based upon the district court's ruling.

These two holdings regarding general deficiencies in

the government's Vaughn index alone require reversal of the

21 district court's order and remand for further fact finding.

However, because on remand the district court may reach

determinations of specific exemptions, we find it instructive to

clarify certain contested issues and delineate the proper legal

standards for future resolution.

IV.

For the majority of the withheld information, the

government has claimed exemptions under 5 U.S.C. § 552(b)(7),

which applies to records or information compiled for law

enforcement purposes. Section 552(b)(7) provides, in relevant

part, that the following is exempt from disclosure: records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, . . . 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, (E) would disclose techniques and procedures 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) (1988 & Supp. V 1993). Thus, in order to

prevail on an Exemption 7 claim, the government must bear its

burden of demonstrating for every record that: (1) the

22 information the FBI seeks to conceal was "compiled for law

enforcement purposes," and (2) disclosure would produce one of

the specified harms enumerated in the statute. United States

Dep't of Justice v. Landano, U.S. , , 113 S. Ct. 2014,

2019 (1993); Federal Bureau of Investigation v. Abramson, 456

U.S. 615, 622, 102 S. Ct. 2054, 2059-60 (1982).

In reviewing the government's withholding of records

under any subsection of § 552(b)(7), the district court must

first be satisfied that those materials qualify as "records or

information compiled for law enforcement purposes."3 There is

disagreement among the courts of appeals about how to make this

threshold determination.

3 While the focus of this case is upon documents compiled for putative criminal investigations, we note that "records or information compiled for law enforcement purposes" are not limited to records or information compiled for criminal investigations. While criminal investigation is certainly one law enforcement purpose, there are also additional law enforcement purposes which are not necessarily criminal in nature. Indeed, the statute itself treats both "criminal investigation[s]" and "national security intelligence investigation[s]" as subsets of law enforcement records in Exemption 7(D). Thus, other agencies that have some law enforcement duties, such as the Equal Employment Opportunity Commission in investigating violations of Title VII, the Internal Revenue Service in enforcing the tax laws, and the National Labor Relations Board in conducting unfair labor practice proceedings, may also justify withholding information under Exemption 7. Note, however, that an agency whose principal function is not law enforcement bears the burden of proving that "the records it seeks to shelter under Exemption 7 were compiled for adjudicatory or enforcement purposes." Stern v. FBI, 737 F.2d 84, 88 (D.C. Cir. 1984); see also infra at [typescript at 26-28] (discussing Committee on Masonic Homes v. NLRB, 556 F.2d 214, 218-19 (3d Cir. 1977)).

23 The government suggests that we follow the courts who

have adopted a per se rule, under which all records compiled by

law enforcement agencies such as the FBI qualify as "records

compiled for law enforcement purposes" pursuant to the (b)(7)

exception. See Jones v. Federal Bureau of Investigation, 41 F.3d

238, 245-46 (6th Cir. 1994) (determining that the per se rule

comports more fully with the policies Congress enacted in FOIA);

Ferguson v. FBI, 957 F.2d 1059, 1070 (2d Cir. 1992) (district

court should not engage in factual inquiry as to legitimacy of

law enforcement purpose); Curran v. Department of Justice, 813

F.2d 473, 475 (1st Cir. 1987) ("[T]he investigatory records of

law enforcement agencies are inherently records compiled for 'law

enforcement purposes' within the meaning of Exemption 7."

(citation omitted)); Kuehnert v. FBI, 620 F.2d 662, 666 (8th Cir.

1980) (a showing of law enforcement purpose of a particular

investigation is not a precondition to FBI's invocation of

Exemption 7).

In contrast, the Court of Appeals for the District of

Columbia Circuit has rejected a per se rule, and adopted a two-

part test that must be satisfied in order for a law enforcement

agency to pass the Exemption 7 threshold. See Pratt v. Webster, 673 F.2d 408 (D.C. Cir. 1982). In Pratt, the court described the

two "critical conditions" of what has been named the "rational

nexus" rule: First, the agency's investigatory activities that give rise to the documents sought must be related to the enforcement of federal laws or to the maintenance of national security. To satisfy this requirement of a "nexus," the

24 agency should be able to identify a particular individual or a particular incident as the object of its investigation and the connection between that individual or incident and a possible security risk or violation of federal law. The possible violation or security risk is necessary to establish that the agency acted within its principal function of law enforcement, rather than merely engaging in a general monitoring of private individuals' activities. . . .

Second, the nexus between the investigation and one of the agency's law enforcement duties must be based on information sufficient to support at least "a colorable claim" of its rationality. . . . Such an agency, in order to carry out its functions, often must act upon unverified tips and suspicions based upon mere tidbits of information. A court, therefore, should be hesitant to second-guess a law enforcement agency's decision to investigate if there is a plausible basis for its decision. Nor is it necessary for the investigation to lead to a criminal prosecution or other enforcement proceeding in order to satisfy the "law enforcement purpose" criterion. . . .

Thus, . . . [i]n order to pass the FOIA Exemption 7 threshold, such an agency must establish that its investigatory activities are realistically based on a legitimate concern that federal laws have been or may be violated or that national security may be breached. Either of these concerns must have some plausible basis and have a rational connection to the object of the agency's investigation.

Pratt, 673 F.2d at 420-21 (emphasis in the original) (citations

and footnotes omitted). See also King, 830 F.2d at 229 (FBI

records are not deemed law enforcement records simply by virtue

of the function that the FBI serves, but rather the two-prong

Pratt test must be applied to determine the threshold showing

25 requisite). The Court of Appeals for the Ninth Circuit has also

adopted a "rational nexus" standard. See, e.g., Wiener, 943 F.2d

at 985 ("No withholding under any of the exemptions listed in

section 552(b)(7) is valid unless the withholding agency

establishes a '"rational nexus" between its law enforcement

duties and the document for which Exemption 7 is claimed.'"

(citations omitted)).

We have not directly ruled on what must be established

in order to meet the threshold requirement. We find, however,

some guidance from our prior precedents. In Committee on Masonic

Homes v. NLRB, 556 F.2d 214 (3d Cir. 1977), an employer had

requested from the National Labor Relations Board ("NLRB") all

union authorization cards that had been submitted by the union as

evidence of support. The NLRB claimed that the cards were exempt

from disclosure under Exemption 7. The NLRB argued that it had

an enforcement purpose -- enforcing the National Labor Relations

Act -- for which the union authorization cards under question

were compiled. We held that under the circumstances of that

case, there was no "law enforcement purpose" pursuant to

Exemption 7, because "'law enforcement purposes' must relate to

some type of formal proceedings, and one that is pending." Id. at 219; see also Ferri, 645 F.2d at 1223 ("[T]he 'investigatory

records' exemption is to be construed literally. It contemplates

files compiled with a specific, formal proceeding or

investigation in mind.").

The precedential force of Masonic Homes can be questioned for two reasons. First, we decided Masonic Homes

26 prior to the 1986 Amendment to FOIA that replaced the language

"investigatory records compiled for law enforcement purposes,"

with the present language of § 552(b)(7), "records or information

compiled for law enforcement purposes." This amended language

can appear to have been intended to broaden the exemption's

reach. We learn from the legislative history, however, that

Congress' action was not intended to modify the threshold showing

of law-enforcement purpose. The report of the Senate Judiciary

Committee on S. 774, 98th Cong., 1st Sess. (1983), stated that

the amendment "does not affect the threshold question of whether

'records or information' withheld under (b)(7) were 'compiled for

law enforcement purposes.' This standard would still have to be

satisfied in order to claim the protection of the (b)(7)

exemption." S. Rep. No. 221, 98th Cong., 1st Sess. 23 (1983),

reprinted in relevant part in, 132 Cong. Rec. H9466 (daily ed.

Oct. 8, 1986); see King, 830 F.2d at 229 n.141 (providing

detailed legislative history of the 1986 Amendment to Exemption

7). Accordingly, we can be assured that our holding in Masonic

Homes has not been undercut by legislative fiat.

Second, because the withholding agency in Masonic Homes was the NLRB, it is unclear whether our conclusion that "law

enforcement purposes" must relate to some type of formal

enforcement proceeding, has an application to an agency whose

principal function is criminal law enforcement. See Pratt, 673

F.2d at 421 n.33 ("We believe that the Third Circuit's conclusion

that '"law enforcement purposes" must relate to some type of

enforcement proceeding, and one that is pending,' has no

27 application to an agency whose principal function is criminal law

enforcement. Therefore, we also dismiss the First Circuit's

concern . . . that the need to shield legitimate law enforcement

efforts from harmful FOIA disclosures might lead to frivolous

prosecutions." (citations omitted)).

While we are not bound to extend our holding in Masonic

Homes to a law enforcement agency such as the FBI, at minimum,

our statements in Masonic Homes indicate a rejection of a per se

rule. Accordingly, we must devise a test to apply to law

enforcement agencies that requires the agency to sustain its

burden of establishing the threshold element of Exemption 7.

We believe the preferable test is an adaptation of the

two-prong "rational nexus" test articulated by the Court of

Appeals for the District of Columbia Circuit in Pratt. Under

this test, the government must identify a particular individual

or incident as the object of the investigation and specify the

connection of the individual or incident to a potential violation

of law or security risk. The agency must then demonstrate that

this relationship is based upon information "sufficient to

support at least a 'colorable claim' of its rationality." Pratt, 673 F.2d at 421.

The D.C. Circuit has explained that the threshold

showing required by Pratt is an "objective" one, and "suffices to

establish the exemption only if it is unrefuted by persuasive

evidence that in fact another, nonqualifying reason prompted the

investigation," such as where an investigation is conducted "for

28 purposes of harassment." Shaw v. FBI, 749 F.2d 58, 63-64 (D.C.

Cir. 1984).

In the present case, the FBI submitted a description of

the nine files pertaining to Davin's FOIA request in the Moran

declaration, as quoted above. See supra at [typescript at 3-

5]. The declaration clearly identifies David Lasser and the WAA

as the targets of the investigations, thereby fulfilling the

first prong of the Pratt test. The declaration, however, plainly

failed to specify the connection between Lasser and the WAA, and

the possible security risk or violation of federal law.

As a preliminary matter, the declaration only contained

a general description of the files and did not describe the nexus

between each document and a particular investigation. Indeed,

the government failed even to identify the investigations to

which each document in the nine FBI files pertained.

Furthermore, the declaration does little more than cite

to the criminal statutes, executive orders, and public laws

pursuant to which the investigations were undertaken, "presumably

indicating that somewhere within the parameters of these general

provisions were criminal acts that the FBI suspected [Lasser and

the WAA] of committing." King, 830 F.2d at 230. While the

second prong inquiry is "necessarily deferential" to the agency,

Pratt, 673 F.2d at 421, we believe that the simple recitation of

statutes, orders and public laws is an insufficient showing of a

rational nexus to a legitimate law enforcement concern. The FBI

has failed to meet its burden in the district court because

neither Agent Moran's declaration nor his testimony provide any

29 detail concerning the supposed law enforcement activities that

generated each of the documents in the Vaughn index. The FBI

must come forward with additional evidence to support its claim

of a law enforcement purpose.

In addition, we note that even the skeletal

descriptions of the files provided by Agent Moran cast doubt on

the government's assertion that the files were related to a law

enforcement purpose: while the nine files cover investigations

spanning over forty years, the government has not pointed to a

single arrest, indictment or conviction.

We acknowledge that the Supreme Court has indicated

there is no requirement for the compilation of information to be

effected by a specific time. See John Doe Agency v. John Doe

Corp., 493 U.S. 146, 153, 110 S. Ct. 471, 476 (1989). Nor do we

require evidence of an actual indictment or conviction in order

for the government to fulfill its burden of proving that its

investigation pertained to a law enforcement purpose. However,

on the record before us, the government must allege additional

specific facts that demonstrate "the agency was gathering

information with the good faith belief that the subject may

violate or has violated federal law," and was not "merely

monitoring the subject for purposes unrelated to enforcement of

the law." Lamont v. Department of Justice, 475 F. Supp. 761, 773 (S.D.N.Y. 1979) (citing, inter alia, Masonic Homes, 556 F.2d at

219). If the government's investigation did not ultimately

result in any arrests, indictments or other proceedings, then the

government may sustain its burden under § 552(b)(7) by explaining

30 why it decided not to follow through with the investigations. The

Vaughn index in this case, however, provides Davin with no

information whatsoever about the initiation, breadth or results

of the investigations. The paucity of information about these

lengthy investigations casts doubt on the government's assertion

that withheld documents pertain to law enforcement

investigations, and has made impossible Davin's challenge to the

government's claim.

The Court of Appeals for the Ninth Circuit was faced

with similar circumstances in Wiener, where the FBI refused to

release files to a historian concerning political investigations

of John Lennon. In that case, the FBI claimed Exemption 7,

alleging that: John Lennon was under investigation for possible violations of the Civil Disobedience Act of 1968, 18 U.S.C. § 231 (1988), and the Anti-Riot Act, 18 U.S.C. § 2101 (1988), because of his association with a radical group known as the Election Year Strategy Information Center (EYSIC).

Wiener, 943 F.2d at 985-96. The court rejected the FBI's claims,

holding that: The Civil Disobedience Act and the Anti-Riot Act are very broad criminal statutes, prohibiting a wide variety of conduct. Citations to these statues do little to inform Wiener of the claimed law enforcement purpose underlying the investigation of John Lennon. Without providing Wiener with further details of the kinds of criminal activity of which John Lennon was allegedly suspected, Wiener cannot effectively argue that the claimed law enforcement purpose was in effect a pretext.

31 Id. at 986.

The statutes that criminalize treason, misprision of

treason, recruiting for service against the United States, and

the other criminal activities that the FBI was "investigating"

are no less broad than the Civil Disobedience Act or the Anti-

Riot Act. The FBI's blanket references to these statutes do not

adequately inform Davin of the claimed law enforcement purposes

of the FBI investigation of the WAA and Lasser. Accordingly, on

remand, the government must provide additional facts regarding

the law enforcement investigations implicated by each of the

documents withheld under any (b)(7) exemption.

If, on remand, the district court concludes that the

government has demonstrated a rational nexus between its law

enforcement duties and the particular document or portions

withheld, then the district court will reach the specific

exemptions of subsections of § 552(b)(7). The government asserts

that information was exempt from disclosure under subsection

(7)(C) Unwarranted Invasion of Personal Privacy, (7)(D)

Confidential Source Material, and (7)(E) Investigative Techniques

and Procedures. We will address each exemption seriatim.

1. § 552(b)(7)(C)

Exemption 7(C) permits withholding of records or

information compiled for law enforcement purposes to the extent

that production "could reasonably be expected to constitute an

32 unwarranted invasion of personal privacy." 5 U.S.C.

§552(b)(7)(C). Agent Moran identified nine privacy interests

that implicated Exemption 7(C): (1) the identities or identifiers

of FBI personnel; (2) the names and identifying data of financial

institution or commercial enterprise employees; (3) identities of

non-FBI federal government employees; (4) names and identifying

data of non-federal government law enforcement officers; (5)

names and identifying data of state and local government

employees; (6) names and identifying data pertaining to third

parties who were of investigative interest; (7) names and

identifying data for third parties who were merely mentioned; (8)

file numbers related to third parties; and (9) names and

identifying information of individuals who provided information

to the FBI.

We set forth the standards for evaluating a 7(C) claim

in Lame I, where we held: The Section 7(C) privacy exemption does not prohibit all disclosures which invade personal privacy, but only disclosures which entail an unwarranted invasion of personal privacy . . . . "Exemption 7(C)'s protection of personal privacy is not absolute . . . . [T]he proper approach to [a] request under a privacy based exemption such as 7(C) is a de novo balancing test, weighing the privacy interest and the extent to which it is invaded on the one hand, against the public benefit that would result from disclosure, on the other."

Lame I, 654 F.2d at 922-23 (quoting Ferri, 645 F.2d at 1217). See

also McDonnell, 4 F.3d at 1254.

33 a. Privacy Interests

In United States Dep't of Justice v. Reporters Comm.

for Freedom of the Press, 489 U.S. 749, 109 S. Ct. 1468 (1989),

the Supreme Court provided guidance on the proper understanding

of "privacy interest." Quoting from Webster's dictionary, the

Court stated that information may be classified as "private" if

it is "intended for or restricted to the use of a particular

person or group or class of persons: not freely available to the

public." Id. at 763-64, 109 S. Ct. at 1477 (footnote omitted).

We recognized in Landano v. United States Dep't of Justice, 956

F.2d 422, 426 (3d Cir. 1992), vacated in part on other grounds

and remanded, U.S. , 113 S. Ct. 2014 (1993), "that

individuals involved in a criminal investigation -- including

suspects, witnesses, interviewees, and investigators -- possess

privacy interests, cognizable under Exemption 7(C), in not having

their names revealed in connection with disclosure of the fact

and subject matter of the investigation." Id. at 426 (citation

omitted). Suspects, interviewees and witnesses have a privacy

interest because disclosure may result in embarrassment or

harassment. Id. Law enforcement personnel involved in a

criminal investigation also have a cognizable privacy interest

under FOIA. Id. (citing Patterson, 893 F.2d at 601).

Accordingly, the individuals involved in the

investigations of David Lasser and the WAA have a privacy

interest in not having their identities disclosed.4 We note that

4 We note again the colloquy between Agent Moran and counsel for Davin, in which Agent Moran concedes that certain information was

34 for some, the privacy interest may become diluted by the passage

of time, though under certain circumstances the potential for

embarrassment and harassment may also endure. Id. at 427. Thus,

when balancing the private and public interests, the district

court must determine the relative strength of an individual's

privacy interest.

The government and Davin dispute whether death

extinguishes an individual's privacy rights under FOIA, and if

so, whether the government is required to determine if the

individual is still alive. The first issue has been settled by

our holding in McDonnell, where we expressly announced that under

§ 552(b)(7)(C), "[p]ersons who are deceased have no privacy

interest in nondisclosure of their identities." McDonnell, 4

F.3d at 1257. Furthermore, with regard to a claimed privacy

exemption under § 552(b)(6), the exemption from disclosure of

personnel and medical files, we directed the government to

determine whether the subject of a FOIA request was deceased or

living. Id. at 1254. While we recognize that the standard for

evaluating privacy interests pursuant to Exemption 7(C) is

somewhat broader that the standard for Exemption 6, see Reporters Committee, 489 U.S. at 756, 109 S. Ct. at 1473, we nonetheless do

redacted pursuant to Exemption 7(C) "[b]ecause some of the information would indicate possibly a particular area of the country" from where an informant was operating, which might lead the requester to the informant's identity. App. at 618. See supra note 2. While the FBI may assert individuals' privacy interest in not having their identities disclosed, the privacy interest only extends to the individuals' names and street addresses, which need not be revealed, but not to cities, occupations, or other "identifiers."

35 not perceive legitimate grounds for distinguishing between (b)(6)

and (b)(7)(C) on this issue.

The government voices a concern, however, that to

require the FBI to determine whether all of the hundreds of

individuals who are named in the files requested by Davin are

alive "would place a great, if not intolerable burden, on the

FBI." Government Brief at 33. We are mindful that the Supreme

Court has recognized a congressional intent "to provide

'"workable" rules' of FOIA disclosure." Landano, U.S. at ,

113 S. Ct. at 2023 (citations omitted). Accordingly, we hold

that it is within the discretion of the district court to require

an agency to demonstrate that the individuals upon whose behalf

it claims the privacy exemption are, in fact, alive. In

exercising its discretion, the district court should consider

such factors as the number of named individuals that must be

investigated, and the age of the requested records. If the

number of individuals is not excessive, the agency could be

required to determine whether the individuals are alive before

asserting a privacy interest on their behalf. However, after a

sufficient passage of time -- such as in our case where the

pertinent investigations began over sixty years ago (and in

McDonnell where the investigation began over seventy years before the FOIA request) -- the probability of the named individuals

remaining alive diminishes. Under such circumstances, it would

be unreasonable for the district court not to assume that many of

the individuals named in the requested records have died, thereby

negating a privacy interest unless proving otherwise.

36 b. Public Benefit

The Reporters Committee decision also guides us in

identifying the relevant "public benefits" to be weighed against

the asserted privacy interests. The Supreme Court declared that: whether disclosure of a private document under Exemption 7(C) is warranted must turn on the nature of the requested document and its relationship to "the basic purpose of the Freedom of Information Act 'to open agency action to the light of public scrutiny'" Department of Air Force v. Rose, 425 U.S. [352], 372, 96 S. Ct. [1592], 1604 [(1976)], rather than on the particular purpose for which the document is being requested.

Reporters Committee, 489 U.S. at 772, 109 S. Ct. at 1481. Accordingly, "[o]fficial information that sheds light on an

agency's performance of its statutory duties falls squarely

within that statutory purpose. That purpose, however, is not

fostered by disclosure of information about private citizens that

is accumulated in various government files but that reveals

little or nothing about an agency's own conduct." Id. at 773,

109 S. Ct. at 1481-82.

Davin asserts a strong public interest in illuminating

the government's operations and exposing possible misconduct with

regard with to the FBI's investigation of the WAA and Lasser. We

agree that the information requested by Davin appears to fall

within the statutory purpose of FOIA in informing the citizenry

about "what their government is up to." Id. at 773, 109 S. Ct.

at 1481 (quoting EPA v. Mink, 410 U.S. 73, 80, 93 S. Ct. 827, 832

(1973) (emphasis in original) (Douglas, J. dissenting)). The

37 district court must determine, however, whether that purpose is

fostered by disclosure of the identities of private citizens.

We are cognizant of the government's stated

justification for withholding: (1) names and identifying data of

non-federal law enforcement officers because "disclosure of their

identities would inhibit the cooperation and exchange of

information between law enforcement officials and the FBI, and

would suppress a vital source of information that the FBI relies

upon in order to pursue investigative interests against alleged

criminals, suspects or subjects of investigations," App. at 78;

and (2) identities of third parties who furnished information to

the FBI because disclosure "would seriously impede the FBI's

ability to gather future information." App. at 81. We held in

McDonnell that "the Government's asserted interest in assuring

future cooperation of witnesses with FBI investigations is not a

valid reason for refusing to disclose information under Exemption

7(C)." McDonnell, 4 F.3d at 1256. Accordingly, neither the FBI

nor the district court may consider this factor in considering

the public benefit of withholding the information.

c. Balancing Private and Public Interests

Davin and the government disagree over how to perform the balancing between private and public interests. Davin refers

us to our decision in Lame I, where we emphasized that "[t]here

can be no question that the 7(C) balancing test must be conducted

with regard to each document, because the privacy interest and

the interest of the public in disclosure may vary from document

38 to document. Indeed, these interests may vary from portion to

portion of an individual document." Lame I, 654 F.2d at 923

(footnote omitted). In that case, we concluded that the FBI's

refusal to disclose most of the witness interview transcripts

could not be justified under Exemption 7(C), without explaining

why the interviews would result in embarrassment or harassment

either to the individuals interviewed or to third parties. Id.

at 928.

The government, in contrast, notes that the Supreme

Court in Reporters Committee permitted agencies to exempt certain

records categorically, as opposed to on a document-by-document

basis. In Reporters Committee, the Court stated that

"categorical decisions may be appropriate and individual

circumstances disregarded when a case fits into a genus in which

the balance characteristically tips in one direction," 489 U.S.

at 776, 109 S. Ct. at 1483, and concluded that "rap sheet"

information is categorically exempt under § 522(b)(7)(C) because

the release of such information always constitutes an unwarranted

invasion of privacy. Id. at 780, 109 S. Ct. at 1485.

While we believe that in the usual circumstance, an

individual's privacy interest in not having his or her identity

revealed in the context of a criminal or national security

investigation overrides the public benefit, we will refrain from

extending Reporters Committee to require a per se rule. We

similarly did not apply the categorical balancing approach in

Landano, when we determined that FBI informants and agents had a privacy interest in not having their names disclosed in

39 connection with a criminal investigation, which outweighed the

asserted public interest (not recognized by FOIA) in discovering

wrongdoing by a state agency. Landano, 956 F.2d at 430-31.

Accordingly, while we do not comment on the proper

result of the balancing in this matter, we find it important to

note that the government must conduct a document by document

fact-specific balancing. Agent Moran dispatched all of the 7(C)

exemptions claimed in the 9,270 pages withheld by stating that in

each instance where information was withheld: it was determined that individual privacy interests were not outweighed by any public interest. When the documents at issue were reviewed . . . the passage of time and any effect on the third party privacy interests were considered. It was determined that the privacy interests are stronger now than they were when the records were created. To reveal names in the context of these records could reasonably be expected, due to the type of the investigation to put the lives of individuals in danger, cause embarrassment and humiliation, and would therefore, be an unwarranted invasion of privacy. The disclosure of this information would not contribute significantly to the public's understanding of the operations or activities of the Government.

App. at 75. This explanation stands in stark contrast to

McDonnell, where "[t]he Government set forth in an affidavit

specific reasons why these persons have a privacy interest in

nondisclosure of their identities." McDonnell, 4 F.3d at 1255.

Agent Moran's affidavit and testimony, and consequently, the

district court's findings, did not link the (b)(7)(C) exemption

to any of the individual documents. On remand, the government

40 must provide the district court with a more detailed balancing

effort.

2. § 552(b)(7)(D)

Exemption 7(D) excepts from disclosure records or

information compiled for law enforcement purposes, but only to

the extent that the production: could reasonably be expected to disclose the identity of a confidential source, . . . which furnished information on a confidential basis, and, in the case of a record or information compiled by 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). See also McDonnell, 4 F.3d at 1257.

The Supreme Court recently set forth the standards for

withholding a document under Exemption 7(D) in Landano. The

Supreme Court explained that a source is considered a

"confidential source" only "if the source `provided information

under an express assurance of confidentiality or in circumstances

from which such an assurance could reasonably be inferred.'"

Landano, U.S. at , 113 S. Ct. at 2019-20 (quoting H.R. Conf.

Rep. No. 1200, 93rd Cong., 2d Sess. 13 (1974), reprinted in 1974

U.S.C.C.A.N. 6285, 6291.

The government asserts that eight categories of

information pertinent to Davin's request fall under Exemption

7(D): (1) internal source symbols and code names assigned to

confidential informants; (2) internal symbol numbers which

41 pertained to informants; (3) information provided by sources

under an express promise of confidentiality; (4) temporary source

symbols; (5) names and identifying data of third parties who

provided information and were interviewed under an implied

promise of confidentiality; (6) information supplied by

institutions under an implied promise of confidentiality; (7)

identities of non-federal law enforcement officers who provided

information under an implied promise of confidentiality; and (8)

information provided by local or state bureaus or agencies under

an implied promise of confidentiality.

In Landano, the Supreme Court reemphasized that the

government bears the burden of establishing that Exemption 7(D)

applies. Landano, U.S. at , 113 S. Ct. at 2019. The Court

embarked on its discussion of implied assurances of

confidentiality after noting that the FBI in that case could not

attempt to demonstrate that it made explicit promises of

confidentiality, because "[t]hat sort of proof apparently often

is not possible: The FBI does not have a policy of discussing

confidentiality with every source, and when such discussions do

occur, agents do not always document them." Id. at , 113 S.

Ct. at 2020. We glean from these remarks that if an agency

attempts to withhold information under Exemption 7(D) by express

assurances of confidentiality, the agency is required to come

forward with probative evidence that the source did in fact

receive an express grant of confidentiality. Proof could take

the form of declarations from the agents who extended the express

grants of confidentiality, contemporaneous documents from the FBI

42 files reflecting the express grants of confidentiality, evidence

of a consistent policy of expressly granting confidentiality to

certain designated sources during the relevant time period, or

other such evidence that comports with the Federal Rules of

Evidence.

Rather than provide such proof, the government submits

Agent Moran's declaration that asserts an alleged policy of the

FBI to grant express assurances of confidentiality on a routine

basis.5 The declaration fails to cite any written policy or

5 Agent Moran stated in his declaration:

Exemption (b)(7)(D) was asserted to withhold information received from a source under an express promise that it would be held in confidence, as well as information that could lead to the source's identity. These sources are symbol numbered sources, code name sources, or individuals who specifically requested confidentiality . . . . As a matter of policy and practice, all symbol numbered informants or code names sources are given express assurances of confidentiality. Illustrative of this express assurance of confidentiality is the manner in which such information is treated within the FBI. The identities of such sources are not referred to by the true name in any FBI document which records the information they furnished. The identities of these sources are known to very few FBI employees and are available only on a "need to know" basis. These special precautions are needed because of the sensitive nature of the information being provided and harm that may befall these sources if their identities were revealed. The manner in which the FBI actually obtains information from these sources is also demonstrative of the express assurance of confidentiality under which it is received. The information is received only under conditions which guarantee the

43 provide any assurance that the alleged policy has been applied

consistently over the years, and in this specific case. There is

no proof that these particular sources received express grants of

confidentiality.

The government argues that we indicated in McDonnell

that courts may rely upon agency declarations in determining

whether a source has received an express assurance of

confidentiality. McDonnell, 4 F.3d at 1258. In that case, we

held that the district court did not err in adopting the

magistrate judge's conclusion that the identity of and

information provided by two specific sources were exempt from

disclosure under (b)(7)(D) when the declaration stated one source

was given express assurance of confidentiality and the other

source was assigned a symbol source number and was never referred

to by name in the file. Id. The government also cites Wiener,

943 F.2d at 986, where the Court of Appeals for the Ninth Circuit

held that the FBI "need only establish the informant was told his

name would be held in confidence."

These holdings do not support the government's

assertion that it has sufficiently established that sources

received express grants of confidentiality. In McDonnell, the agent provided information regarding the circumstances

contact will not be jeopardized. Derivative ensuing investigations attributable to a symbol numbered source have also been denied as disclosure of such would reveal the identity of the source.

App. at 87-88.

44 surrounding the interviews in which express grants of

confidentiality were given to the two specific sources in

question. McDonnell, 4 F.3d at 1257-58.6 No such specifics are

provided in the Moran declaration in this case. Furthermore,

while the Wiener court required the FBI to "establish the

informant was told his name would be held in confidence," the FBI

has failed to do so in this case since the government did not

present any evidence of its alleged policy or any evidence that

an express grant of confidentiality was in fact given to any

particular source.

On remand, the government, if it pursues an exception

for express promises of confidentiality, must produce evidence of

6 In McDonnell, we held that the district court did not err in adopting the magistrate judge's conclusion that the identity of a certain source was exempt from disclosure under Exemption 7(D), when, based on Agent Llewellyn's declaration, the magistrate judge "determined that the Government gave an express assurance of confidentiality to an informant named in the files . . . . The identity of this source was considered so sensitive that he or she was assigned a symbol source number and was never referred to by name in the file." McDonnell, 4 F.3d at 1258. While these statements may appear to imply that the FBI only pointed to its symbol source number policy to show that the sources received express grants of confidentiality, it is clear from reading McDonnell that the agent's declaration in fact provided detailed information regarding the circumstances of the express grants of confidentiality to the two specific sources involved in the investigation. We wrote: "At oral argument on the parties' cross-motions for summary judgment, the magistrate judge ordered the FBI to submit a declaration regarding the circumstances surrounding the interviews of third parties who were members of the public. This order was in response to two letters McDonnell has submitted from interviewees stating that they had not received either express or implied assurances of confidentiality when the FBI interviewed them." Id. at 1257 (emphasis added). In response to this directive, the FBI submitted Agent Llewellyn's declaration, which presumably, fulfilled the magistrate judge's order.

45 its alleged policy and practice of giving all symbol numbered

informants or code name sources express assurances of

confidentiality, evidence that the policy was in force throughout

the forty years spanned by the documents at issue, and evidence

that the policy was applied to each of the separate

investigations and in each case in which a document or portion

has been withheld.

In addition to claiming that sources were given express

promises of confidentiality, the government also asserts that

some sources gave the FBI information under "an implied promise

of confidentiality." App. at 89. In Landano, the Supreme Court

explained that: the Government is not entitled to a presumption that a source is confidential within the meaning of Exemption 7(D) whenever the source provides information to the FBI in the course of a criminal investigation.

More narrowly defined circumstances however, can provide a basis for inferring confidentiality. For example, when circumstances such as the nature of the crime investigated and the witness' relation to it support an inference of confidentiality, the Government is entitled to a presumption.

Landano, U.S. at , 113 S. Ct. at 2024. In that case, the

Court noted, but did not decide, that the sources at issue who

were witnesses to a gang-related shooting of a police officer,

might well be presumed to have spoken to the FBI on condition of

anonymity based on the circumstances under which they gave their

information. Id. at , 113 S. Ct. at 2023.

46 Moran indicated that all the persons who provided

information under an implied promise of confidentiality were

individuals who "were past or present members of the WAA;

individuals who, through their employment, were in a position to

provide detailed information; or private citizens who attended

WAA meetings." App. at 90. In its brief, the government

asserts: [T]he Alliance was suspected of being a Communist front and engaging in seditious activities. Given the nature of the activities alleged, it could be presumed that the Alliance would take measures to shield them from law enforcement. Under these circumstances, sources of insider information operated under an implied assurance of confidentiality. The same holds true for individuals who reported matters discussed at Workers Alliance meetings. The Alliance had various chapters or branches located throughout the country. Individuals who attended meetings and then reported to the FBI also did so under an implicit grant of confidentiality. These individuals were exposed to the risk of retaliation by reporting on Alliance business to the FBI, particularly if they were known to other members of the local branch. In short, sources providing detailed information concerning the extent of Communist control of labor organization and possible treasonous activities of that organization would have been concerned "that exposure would bring harassment, ridicule or retaliation." Keys v. Dep't of Justice, 830 F.2d [337,] 345-46 [(D.C. Cir. 1987)].

Government's Brief at 41-42.

We do not believe that this recitation sufficiently

describes circumstances that can provide a basis for inferring

confidentiality. The FBI has not offered evidence that any

47 member of the WAA engaged in acts of violence or harassment, or

threatened to do so. In light of the fact the government has

access to documents concerning the WAA spanning a period of forty

years, we assume that the government would be able to provide

examples illustrating its contention that the sources allegedly

were afraid of other WAA members. The government's citation to

Keys for the proposition that the sources sought implied

assurances of confidentiality actually emphasizes the distinction

between the circumstances of the two cases: Keys involved a

murder investigation by a foreign operative in which a source

would have good reason to be afraid "lest he meet the same fate."

Keys, 830 F.2d at 346.

The government has provided the court with generalized

allegations that the WAA was suspected of "being a Communist

front" and "engaging in seditious activities." In attempting to

prove that the sources received an implied promise of

confidentiality, the FBI relies heavily on the presumption that

people who speak to the FBI necessarily require confidentiality.

App. at 90-91. The Supreme Court rejected such a presumption in

Landano. U.S. at , 113 S. Ct. at 2022.

Recently in McDonnell, we were faced with a requester

seeking documents concerning information supplied by an alleged

confidential source regarding involvement of "a suspicious or

radical" member of the crew of a ship, who the FBI suspected was

involved with a suspicious fire aboard the ship. McDonnell, 4

F.3d at 1258. The government asserted that the information was

exempt because these circumstances established that the source

48 gave his information under an implied promise of confidentiality.

Id. We held that the government did not meet it burden under

Landano and remanded for further proceedings consistent with

principles articulated by the Supreme Court. In the case at

hand, the FBI has not even shown that the persons being

investigated were suspected of involvement in violent acts.

Accordingly, as we held in McDonnell, 4 F.3d at 1262, on remand,

the government must provide a further detailed factual recitation

in order to sustain its burden of showing circumstances that

provide a basis for inferring confidentiality.

As an added note, we mention the last clause of

§552(b)(7)(D), which exempts from disclosure the information that

a confidential source provides in a criminal or national security

investigation. While not directly before us on this appeal, we

do not foreclose the possibility that the FBI could withhold more

information than is justified to protect the identity of

confidential sources, assuming, of course, the government

adequately demonstrates that the information relates to a

criminal or national security investigation.

3. § 552(b)(7)(E)

The FBI has withheld documents and portions of

documents under Exemption 7(E), which allows an agency to

withhold records and information for law enforcement purposes

that "would disclose techniques and procedures for law

enforcement investigations or prosecutions." 5 U.S.C.

§552(b)(7)(E). Exemption 7(E) applies to law enforcement records

49 which, if disclosed, would risk circumvention of the law. PHE,

Inc. v. Department of Justice, 983 F.2d 248, 249-50 (D.C. Cir.

1993). This exemption, however, may not be asserted to withhold

"routine techniques and procedures already well-known to the

public, such as ballistic tests, fingerprinting, and other

scientific tests commonly known." Ferri, 645 F.2d at 1224

(citing H.R. Conf. Rep. No. 1200, 93rd Cong., 2d Sess. 12 (1974),

reprinted in 1974 U.S.C.C.A.N. 6285, 6291).

The government asserted this exemption, claiming the

techniques utilized yielded valuable information, and the

disclosure of certain information "would reveal the type of

effective investigative techniques and the relative utility of

these techniques could be diminished." App. at 95. The

government argues that despite the fact that certain law

enforcement techniques, such as the use of informants, may be

well known to the public, disclosure is nevertheless not

warranted where the circumstances surrounding the usefulness of

these techniques is not well known. According to the government,

"the manner in which informants are identified, recruited,

cultivated and handled by the FBI is not well-known," which is

especially true where, as here, "the FBI is investigating an

organization which is believed to be engaging in illegal

activities and has taken measures to shield such subversive

activities from law enforcement." Government Brief at 43. The

government maintains that groups who are suspected of criminal

wrongdoing today may be provided with information as to how the

FBI recruits internal informants, which may aid the groups in

50 detecting informants currently operating within their ranks. Id.

at 43-44.

The government has not offered any proof of these

assertions. If the government wishes to argue that the

information concerning the use of informants in the 1930's is of

such a specialized nature that it is still unknown to the public,

the government must introduce evidence of that fact. Moreover,

if the government submits evidence that specific documents it has

withheld contain secret information about techniques for

recruiting informants, it will have to establish that the release

of this information would risk circumvention of the law. The

speculation provided in the government's brief of political

groups' increased ability to detect informants within their ranks

is not supported by evidence. Accordingly, on remand, the

government must provide the district court with additional facts

to support exempted documents and portions of documents under

Exemption 7(E).

V.

Last, the government asserts that information was

exempt from disclosure under 5 U.S.C. § 552(b)(2), which applies

to matters pertaining solely to the internal personnel rules and

practices of an agency. This exemption pertains to "routine

matters" of "merely internal significance" in which the public

lacks any substantial interest. Department of the Air Force v. Rose, 425 U.S. 352, 369-70, 96 S. Ct. 1592, 1603 (1976). The

materials claimed to fall within the (b)(2) exemption include the

51 following categories of information: (1) permanent source symbols

or code names assigned to confidential informants; (2) the file

numbers of permanent symbol numbered sources, (3) temporary

source symbols; and (4) administrative data, practices and

procedures. App. at 71-74.

Agent Moran claimed in his declaration that: Information relative to matters of purely internal, bureaucratic significance has been withheld in certain documents as it pertains to the administrative handling of purely internal functions and policies of the FBI. The information is not of obvious importance in itself; but, if it were released to plaintiff and combines with other known data, in a "mosaic" analysis, it could lead to identification of substantive information in the file which has been withheld pursuant to other 5 U.S.C. 552 exemptions. Disclosure of this type of information would not add to the public's understanding of the inner workings of the Government.

Information has also been deleted from a sample document which relates to FBIHQ instructions to a field office concerning agency business. This material relates to procedures and practices to be followed to effectively support investigative efforts.

App. at 74.

The government argues that informant codes fall within

the ambit of Exemption (b)(2). We agree. As the Court of

Appeals for the District of Columbia Circuit has noted, "[t]he

means by which the FBI refers to informants in its investigative

files is a matter of internal significance in which the public

has no substantial interest." Lesar v. United States Dep't of

52 Justice, 636 F.2d 472, 485-86 (D.C. Cir. 1980); see also Massey

v. FBI, 3 F.3d 620, 622 (2d Cir. 1993).

However, the description given by the Moran declaration

provided the district court with no information as to the content

of any of the withheld documents or portions of documents.

Accordingly, on remand, the government may assert exemptions

under (b)(2) if the district court is provided with sufficient

factual support for the withholdings.

CONCLUSION

Because the Vaughn affidavit submitted by the

government did not include a specific factual recitation linking

the documents or portions of documents in question with the

claimed FOIA exemptions, the district court was not provided with

an adequate factual basis for its determination. The order of

the district court granting summary judgment to the government

was inappropriate because the government did not sufficiently

"describe the withheld information and the justification for

withholding with reasonable specificity, demonstrating a logical

connection between the information and the claimed exemption[s]."

American Friends, 831 F.2d at 444 (quoting Abbotts, 766 F.2d at 606). Accordingly, we will remand this matter to the district

court for further fact finding7 and conclusions consistent with

the principles articulated in this opinion.

7 Fact finding may take the form of ordering a more detailed supplemental Vaughn index and public affidavits. See, e.g., Wiener, 943 F.2d at 979; King, 830 F.3d at 225; Ferri, 645 F.2d at 1225. If the district court is still concerned that it is

53 unable to make a responsible de novo determination, it may proceed with in camera review. 5 U.S.C. § 552 (a)(4)(B). We have discussed elsewhere the factors to be considered in deciding whether in camera review is appropriate. See, e.g., Ferri, 645 F.2d at 1225-26; Lame I, 654 F.2d at 921-22.