Joseph P. Londrigan v. Federal Bureau of Investigation

670 F.2d 1164, 216 U.S. App. D.C. 345, 33 Fed. R. Serv. 2d 338, 1981 U.S. App. LEXIS 14786

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 31, 1981
• Docket: 79-1403
• Status: Published

Opinions

SPOTTSWOOD W. ROBINSON, III, Chief Judge:

The controversy in this case centers on the efforts of the appellant, Joseph P. Lon-drigan, to uncover the identities of persons who furnished information about him to the appellee, the Federal Bureau of Investigation, during the course of an investigation of his qualifications for federal employment. Presented for decision is a question going to the very heart of the Privacy Act of 1974:¹ What must an agency demonstrate in order to withhold information pursuant to Exemption (k)(5) on grounds that it was obtained under an implied promise of confidentiality?² Implicitly concluding that invocation of Exemption (k)(5) by an agency requires only a minimal showing, the District Court granted summary judgment in favor of the FBI. On the basis of our interpretation of Exemption (k)(5), we find that the record before the court was insufficient to support a summary disposition. We further find that the court ruled incorrectly on two Rule 56 ³ motions made by Londrigan in an attempt to fortify his opposition to an award of summary judgment. Accordingly, we reverse the District Court’s rulings and remand the case for further proceedings.

I. Background

The data specifically sought by Londri-gan are the names of persons who provided the FBI with information about him in 1961, long before the advent of the Privacy Act, when he was under investigation for a position as a Peace Corps volunteer. The FBI’s file includes statements from private individuals as well as from employees of schools, businesses, and state and local governmental agencies.

Londrigan initiated his endeavor to obtain his FBI file in October, 1975, when he wrote to his congressman to ask for assistance in acquiring it. His letter was forwarded to the FBI, and in March, 1976, he received copies of the materials on file, albeit with substantial deletions made as-sertedly under authority of Exemption (k)(5) of the Privacy Act.⁴ Dissatisfied with the redacted documents, Londrigan appealed the agency’s decision to withhold the deleted portions to the Deputy Attorney General. His appeal proved unsuccessful, and in July, 1978, he brought suit in the District Court.

Shortly after answering Londrigan’s complaint, the FBI submitted a motion for summary judgment supported only by an affidavit prepared by Special Agent Charles. J. Wroblewski, then a supervisor of the FBI’s Freedom of Information-Privacy Act Branch.⁵ Wroblewski averred that the statements therein were “based upon [his] knowledge, upon information available to [him] in [his] official capacity, and upon decisions reached in accordance therewith.” ⁶ The crux of Wroblewski’s affidavit was his view that

[p]ersons interviewed often assume, quite logically,' that the information they furnish is only for the official use of the FBI in the fulfillment of its responsibilities, and that, the identities and the fact of their cooperation with the FBI will not be publicly exposed. Without that implied confidentiality, the fear of such exposure would inhibit the cooperation of otherwise conscientious citizens.⁷

Wroblewski did not participate in the Lon-drigan investigation himself, and apparently made no effort to contact any of the agents who had conducted the recorded interviews.⁸ What he tells us is that

[i]n conducting the background investigation regarding [Londrigan’s] application for the position of Peace Corps Volunteer, the following groupings of individuals were considered to be implied confidential sources: school personnel, personal references, neighborhood and social acquaintances, business associates, and former employees.⁹

In short, as the FBI admits, the Wroblewski affidavit reduces to the proposition that “any [background] investigation conducted prior to the effective date of the Privacy Act must be regarded as having been conducted under an implied promise of confidentiality.” ¹⁰

In response to the FBI’s summary-judgment motion, Londrigan moved to strike the Wroblewski affidavit pursuant to Rule 56(e) of the Federal Rules of Civil Procedure ¹¹ on grounds that it was not based upon personal knowledge. He also filed a motion pursuant to Rule 56(f)¹² requesting a continuance in order to take the depositions of the agents who had actually prepared the contested documents.¹³ The District Court denied the motion to strike and refused to allow Londrigan to depose the agents who had participated in the investigation.¹⁴ The court did permit Londrigan to submit written interrogatories to the FBI.¹⁵

Londrigan’s interrogatories attempted to unearth the basis of the statements contained in the Wroblewski affidavit. In responding on behalf of the FBI, Wroblewski made several statements of particular relevance to the matter before us. For example, in addressing “what percentage of persons interviewed . . . assume [that their identities will be kept confidential],”¹⁶ Wroblewski replied that “[i]n 1961, when this investigation was conducted, 100% of the persons interviewed assumed that their identities and the fact of their cooperation with the FBI would not be publicly exposed.” ¹⁷ As the bases for these conclusions Wroblewski designated his review of documents pertaining to the investigation, prior experience, and FBI policy,¹⁸ and attempted to buttress his assertions by noting that “[a]t the time these interviews were conducted in 1961, no such law as the Privacy Act was envisioned. There was no expectation that the identity of anyone who furnished information to the FBI would be divulged.” ¹⁹ Finally, and somewhat inconsistently given his claims that interviewees automatically assumed that their comments would be kept secret, Wroblewski noted that one of the Londrigan sources had “expressly requested confidentiality” since a notation to this effect was contained in the file.²⁰

Despite these revelations of the tenuous nature of the affidavit’s predicates, the District Court granted the Government’s motion for summary judgment.²¹ In so doing, the court stated that its decision was based on the entire record before it, but emphasized that

an examination of the documents at issue, particularly noting the types of individuals interviewed, such as school personnel, personal references, neighborhood and social acquaintances, and business associates, and the substance of the questions asked such as inquiries about Plaintiff’s character, reputation, loyalty, associates, and abilities, and further noting that the interviews were conducted by agents of the Federal Bureau of Investigation in 1961, revealfed] sufficient circumstances indicating the existence of implied promises of confidentiality. . . ,²²

Londrigan appeals this decision, as well as the District Court’s disposition of his Rule 56 motions.

II. Exemption (k)(5) of the Privacy Act

The Privacy Act came into being in conjunction with 1974 legislation amending the Freedom of Information Act (FOIA).²³ It had its genesis in a growing awareness that governmental agencies were accumulating an ever-expanding stockpile of information about private individuals that was readily susceptible to both misuse and the perpetuation of inaccuracies that the citizen would never know of, let alone have an opportunity to rebut or correct. In response to fear that “the secret gathering of information on people or the creation of secret information systems or data banks on Americans by employees of the departments and agencies of the executive branch” ²⁴ could soon make Orwell’s vision of 1984 ²⁵ a reality, Congress designed the Privacy Act “to prevent the kind of illegal, unwise, overbroad investigation and record surveillance of law-abiding citizens produced in recent years from actions of over-zealous investigators, and the curiosity of some government administrators, or the wrongful disclosure and use, in some cases, of personal files held by Federal agencies.” ²⁶

In providing for divulgence of the contents of agency records to individuals to whom they pertain, the structure of the Privacy Act is similar to that of the Freedom of Information Act.²⁷ One of the Privacy Act’s fundamental premises is that all records compiled on an individual must on request be revealed to that individual unless they fall within one or more specifically enumerated exemptions.²⁸ This litigation implicates Exemption (k)(5), which protects from disclosure.

investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence.²⁹

The statutory language most critical to the case at bar refers to an “implied promise that the identity of the source would be held in confidence.” Its significance is a question of first impression for a court of appeals, and only one district court seems to have addressed it directly. In Nemetz v. Department of Treasury,30 a case similar in many respects to the one now before us,³¹ the court refused to award summary judgment for the agency, stating:

We find that the defendant’s general averments of promises of confidentiality are insufficient to support an award of summary judgment on their behalf. To fulfill the Privacy Act’s purpose of granting access to an individual’s government records, . . . any exemptions must be narrowly construed and the requirements strictly met. In cases where exemption is sought under Section 552a(k)(5), this standard requires finding a promise of confidentiality as to each source sought to be withheld. General allegations concerning “policy” are insufficient. Evidence must be presented based on personal knowledge that an express or implied promise of confidentiality was given as to each source sought to be exempted under this provision.³²

We think that this approach is eminently correct. To allow an agency to withhold information simply by asserting that all background investigations conducted pri- or to the effective date of the Privacy Act must be deemed to have been undertaken under implied promises of confidentiality is to defeat the congressional intent underlying the design of the statute. In response to concern that agencies such as the FBI would be hampered in their law enforcement efforts by the Privacy Act’s disclosure mandate, Congress specifically exempted information held by these entities for law enforcement purposes.33 After weighing the competing interests in information gathered on prospective federal employees, however, Congress struck an entirely different balance. In this area, Congress plainly determined that the Government’s stake in nondisclosure was far less important than it is in the context of law enforcement operations,³⁴ and it is evident that the citizen’s interest in access to personal data affecting his ability to earn a living is of a very high magnitude. Consequently, Congress authorized withholding of identities of sources of such information, when gathered after the effective date of the Privacy Act, only upon a showing of an express promise of confidentiality.³⁵ Identities of persons who supplied information on prospective federal employees prior to that time were to be accorded somewhat greater protection, but certainly not an absolute exemption from disclosure. On the contrary, their identities were to be shielded only upon demonstration of an implied promise of confidentiality.³⁶

The Wroblewski affidavit does not suffice to establish that the Londrigan interviewees were all, or indeed in any particular instance, impliedly assured of confidentiality. Wroblewski reveals nothing unique, in terms of need or desire for confidentiality, about this group of persons or their comments; rather, he asks the courts to do what Congress has already refused to do— except all pre-1975 investigative files from disclosure. To do so would put this court in a legislative rather than a judicial role, a transposition of functions we cannot accept. By the same token, an examination of documents which reveals merely that they contain information about a prospective employee’s character, ability and other traits, and that these data were supplied by acquaintances, business associates, and record custodians, does not furnish enough of a foundation for upholding an agency’s refusal to disclose the identities of the sources. Nor is the fact that the FBI collected the materials dispositive. These are elements common to nearly every file maintained on candidates for federal employment, and factors of which Congress was well aware.³⁷

To rest a holding that nondisclosure is justified solely on identification of these ingredients is to abdicate the responsibility vested in the courts to ensure that the Privacy Act is obeyed. If Congress had intended to require no more than a showing as minimal as that accepted by the District Court in this case, it could simply have enacted a blanket exemption for files containing information on a federal job-applicant’s qualifications. Since Congress did not insert such an exception to disclosure in the Privacy Act, it surely must have expected a stronger demonstration of an implied promise of confidentiality than is portrayed by either the Wroblewski affidavit or the District Court’s observations on the nature of the documents lodged in Londrigan’s FBI file.

The legislative history of the Privacy Act provides clear support for the conclusion that neither a conclusory affidavit nor a general examination of documents suffices to validate a finding of an implied promise of confidentiality. While neither the House nor the Senate committee report is particularly helpful on this point, the debates are most informative. Exemption (k)(5) originated as an amendment to H. 16373, the House bill that later became the Privacy Act.³⁸ The amendment was introduced by Representative Erlenborn in order to protect the identities of persons who without an expectation of confidentiality would not have supplied information to the agency collecting it. According to Representative Erlenborn,

[i]n the past there has been lawfully expressed an implied promise of confidentiality given to those who have made statements to investigators.

The functions of this bill, if it is not amended by the Erlenborn amendment, will be to open up all of those old files so that those statements that were given in confidence will now be made available to the individual.³⁹

The introduction of this proposed addition to the bill sparked a somewhat heated discussion. Objections were raised on the theory that it would insulate from disclosure far too much of the information contained in files theretofore compiled prior.⁴⁰ Representative Fascell questioned even the notion of an implied promise of confidentiality; he related, “never have I had any Government agency or agent say to me, ‘[s]ir, the information you give me is classified’ or ‘[t]he information will be kept confidential.’ ”⁴¹ In response, Representative Erlenborn was at pains to point out that the exemption was intended to be very narrow:

The gentleman from Florida says that he has never had any promises, express or implied. In that case, his name will be made available if he is not one who has given such a statement, because the only thing that would be protected are those confidential sources.⁴²

Representative Erlenborn also indicated, in answer to a question from Representative Goldwater, that access to the courts would provide the necessary “check and balance” on agency discretion with respect to the “determin[ation] whether in fact information is included, or whether in fact third parties should be made available.”⁴³

The import of this excerpt from the legislative history is plain, and it is precisely in line with our own conclusions and those of the Nemetz court.⁴⁴ Confidentiality is not to be inferred simply from the circumstance that the information was solicited by and given to a governmental agency; an adequate basis for implication of a promise of confidentiality must be shown. Something more is necessary than a general averment that all information compiled by the agency prior to 1975 was acquired pursuant to implied pledges of that sort. Verification of the fact of such a promise may vary in extent depending on the type of information, the circumstances under which it was gathered, and other factors, but some effort beyond mere observations that the documents contain comments on a prospective employee’s character and other personal assets or shortcomings, and that they were supplied by acquaintances and business associates, must be made to enable a determination of exactly what kinds of assurances, if any, were given to providers of the information. An implied promise of confidentiality is established only as a logical deduction from the circumstances shown, and from one set to another the result indicated expectably may differ. In the instant case, for example, Wroblewski observed that one document notes an express request that the data therein be kept confidential, and clearly the identity of that source should not be disclosed.⁴⁵ The fact that the request was recorded, however, cuts against the agent’s assertion that people naturally and invariably assumed that information they furnished the FBI would be held in secrecy. Similarly, while the supplier’s relationship to the subject of the investigation may have significance for the outcome, the mere fact that he is a public or school official would not in itself seem to require withholding of his name, much less his position at the time the information was obtained.

It follows that this case must be remanded to the District Court for further investigation of the facts and circumstances surrounding the acquisition of the information contained in the FBI’s file on Londrigan. In order to facilitate this process, there are several steps that the District Court appropriately may take. First, a careful review of each document should be undertaken to determine the nature of the source — for example, record custodian, personal acquaintance or the like — and whether any statement contained in the document indicates an expectation of confidentiality.⁴⁶ Second, while the FBI cannot realistically be expected to contact the interviewees themselves, at least some of the available investigating agents might be consulted to determine whether any promises or assurances were expressly given or impliedly arose in Londrigan’s instance.⁴⁷ Third, FBI policies prevalent in 1961 may be considered, but great care should be taken to avoid confusion of internal agency rules with specific practices actually pursued with persons interviewed.⁴⁸

The District Court may find other indicia of the presence or absence of promises of confidentiality, and the court should feel free to weigh them, but we hasten to point out that the mere fact that the FBI conducted the investigation or that the comments were of a personal nature does not dictate the result.⁴⁹ With that, we now turn to the District Court’s dispositions of Londrigan’s Rule 56 motions, and the need for their reconsideration on remand.

III. The Rule 56 Motions

A. Rule 56(e)

A principal command of Rule 56(e) is straightforward: “Supporting and opposing affidavits” on summary-judgment motions “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”⁵⁰ Although the rule’s directive with respect to admissibility of an affidavit’s contents on summary judgment has been liberally construed,⁵¹ its requirement of personal knowledge by the affiant is unequivocal, and cannot be circumvented.⁵² An affidavit based merely on information and belief is unacceptable.⁵³

Irrefutably, the most critical part of the Wroblewski affidavit does not rise to the level Rule 56(e) demands.⁵⁴ Careful reading of this section of the affidavit reveals that a great deal of what it says could not possibly have been based on the affiant’s personal knowledge of the documents in question or the details of the investigation that produced them. Wroblewski was competent to testify to his own observations upon review of the documents, including the fact that one of the sources whose identity was withheld by the FBI had specifically requested confidentiality; the procedural history of Londrigan’s attempt to acquire information held by the FBI; the agency’s procedures with respect to investigations during his own tenure therewith and earlier practices of which he possesses personal knowledge;⁵⁵ and his personal experiences as an agent to the extent that they bore relevance to the case. At this point, however, Wroblewski’s competence terminated. He cannot possibly have personal knowledge of any assumptions made by persons interviewed by other FBI agents, and while he might be competent to testify to difficulties the FBI would encounter were promises of confidentiality not implied, that information is simply not pertinent to this litigation. As we noted earlier, Congress was aware of the negative aspects of releasing information in agency investigative files, but opted in favor of disclosure, subject only to narrowly defined limitations.⁵⁶ Moreover, the Privacy Act permits data collected after the effective date of the statute to be withheld only if an express promise of confidentiality was made;⁵⁷ thus, the situation Wroblewski alludes to no longer exists.

In sum, Wroblewski’s affidavit undertook precisely the type of presentation Rule 56(e) prohibits. The District Court’s refusal to grant Londrigan’s motion to strike the Wroblewski affidavit must be rectified. On remand, the court must disregard the impugned part of the affidavit⁵⁸ in its entirety.

B. Rule 56(f)

As two well-known commentators have explained, “Rule 56(f)⁵⁹ protects a party opposing a summary judgment motion who for valid reasons cannot by affidavit — or presumably by any other means authorized under Rule 56(e) — present ‘facts essential to justify his opposition’ to the motion.”⁶⁰ Counsel for Londrigan complied with the prerequisites for invocation of Rule 56(f) by submitting an affidavit to the District Court explaining why he was unable to offer material in opposition to the FBI’s summary judgment motion.⁶¹ The District Court, by the terms of Rule 56(f), then had the options of refusing 'to grant summary judgment, ordering a continuance to permit affidavits to be secured or discovery to be conducted, or entering “such other order as was just.”⁶² Consonantly, the court chose to deny Londrigan’s specific request to take depositions, but allowed him to submit written interrogatories to the FBI.

Unfortunately, however, the interrogatories did not fill the gaps in the Wroblewski affidavit. While the written interrogatories may indeed have been warranted, Lon-drigan additionally should have been permitted to procure such depositions as he could in order to obtain the insights of the agents who actually prepared the documents in dispute. Even if the District Court initially assumed that interrogatories would be sufficient, the answers to those interrogatories clearly demonstrated the need for testimony of agents personally involved in the investigation. Therefore, on remand, the District Court should allow Londrigan the opportunity to take those depositions should he renew his request.⁶³

For the reasons we have set forth, the District Court’s grant of summary judg-merit and its disposition of Londrigan’s Rule 56 motions are reversed, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

1 . 5 U.S.C. § 552a (1976).

2 . Id. § 552a(k)(5), quoted in text infra at note 29.

3 . Fed.R.Civ.P. 56.

4 . 5 U.S.C. § 552a(k)(5) (1976), quoted in text infra at note 29.

5 . Londrigan v. Federal Bureau of Investigation, Civ.No. 78-1360 (D.D.C.), Defendant’s Motion for Summary Judgment, Affidavit of Charles J. Wroblewski, at 1, Appendix (App.) 10 [hereinafter cited as Wroblewski Affidavit].

6 . Id.

7 . Id. at 5, App. 14.

8 . Londrigan v. Federal Bureau of Investigation, supra note 5, Defendant’s Answers to Plaintiff’s Interrogatories (Interrogatory No. 9) at 6, App. 85 [hereinafter cited as Answers to Interrogatories].

9 . Wroblewski Affidavit, supra note 5, at 5, App. 14.

10 . Brief for Appellee at 6.

11 . Fed.R.Civ,P. 56(e).

12 . Id. 56(D.

13 . Londrigan v. Federal Bureau of Investigation, supra note 5, Plaintiffs Motion to Strike, App. 74.

14 . Apparently several of the agents who conducted the 1961 investigation were still employees of the FBI at the time Londrigan instituted his suit in District Court. See Answers to Interrogatories, supra note 7, (Answer to Interrogatory No. 9) at 8, App. 86.

15 . Londrigan v. Federal Bureau of Investigation, No. 78-1360 (D.D.C.) (order denying Motion to Strike) (Nov. 14, 1978), App. 78.

16 . Answers to Interrogatories, supra note 8, (Interrogatory No. 20) at 10, App. 89.

17 . Id. (Answer to Interrogatory No. 20(a)) at 11, App. 90.

18 . Id. (Answer to Interrogatory No. 20(c)).

19 . Id. (Answer to Interrogatory No. 23) at 12, App. 91.

20 . Id. (Answers to Interrogatories Nos. 3 & 21) at 5, 11, App. 84, 90.

21 . Londrigan v. Federal Bureau of Investigation, supra note 5, (order) (Jan. 30, 1979), App. 96.

22 . Id. at 1 (citation omitted).

23 . 5 U.S.C. § 552 (1976).

24 . S.Rep.No.1183, 93rd Cong., 2d Sess., 2 (1974) U.S.Code Cong. & Admin.News 1974, pp. 6916, 6917 [hereinafter cited as Senate Report].

25 . See G. Orwell, Nineteen Eighty-Four (1949).

26 . Senate Report, supra note 24, at 1, U.S.Code Cong. & Admin.News 1974, p. 6916.

²⁷

28 . Subsection 552a(d) of the Privacy Act affords general access by an individual to a federal agency record pertaining to him. 5 U.S.C. § 552a(d) (1976). This provision mandates disclosure, upon request by the individual, of all information contained in the agency record save that specifically exempted by subsections 552a(j) and 552a(k). Id. §§ 552a(j), (k). Another essential function of the Privacy Act is to prevent unauthorized disclosure of a record to a person or entity other than the individual upon whom it is maintained. See Id. § 552a (b). These two parts of the Act work hand-in-hand “to promote observance of valued principles of fairness and privacy.” Senate Report, supra note 24, at 2, U.S.Code Cong. & Admin. News 1974, p. 6917. See generally, 1 K. Davis, Administrative Law Treatise § 5.43 (2d ed. 1978).

29 . 5 U.S.C. § 552a(k)(5) (1976). The Act further provides that the exemptions, including (k)(5), become operative only upon promulgation of appropriate rules by the head of the agency seeking to invoke them. Id. § 552a(g). The FBI’s compliance with this requirement is not questioned in this case. The applicable FBI regulation is set forth in 28 C.F.R. § 16.42(b)(3) (1980).

30 . 446 F.Supp. 102 (N.D.Ill.1978).

31 . In Nemetz, the plaintiff sought access to background information obtained by the Secret Service in the course of an investigation conducted pursuant to his application for employment. He also sought to amend any inaccuracies or incomplete portions of the documents he had requested. Id. at 104.

32 . Id. at 105 (footnote omitted).

33 . See 5 U.S.C. § 552a(j)(2) (1976).

34 . Exemption (k)(5) of the Privacy Act must be carefully distinguished from Exemption 7 of FOIA, 5 U.S.C. § 552(b)(7) (1976), which permits agency retention of “investigatory records compiled for law enforcement purposes.” Id. The FBI has attempted to justify its refusal to release the identities sought by Londrigan on the basis of cases construing Exemption 7 of FOIA. Since that exemption, like Exemption (j)(2) of the Privacy Act, Id. § 552a(j)(2), applies only to records held for law enforcement purposes, these cases are inapposite. We are aware of a reference to Exemption 7 of FOIA during the debate on Exemption (k)(5), see 120 Cong.Rec. 36655 (1974) (remarks of Representative Erlenborn), but it does not alter this conclusion. Although Representative Erlenborn cited Exemption 7 as an example of the recognized need for confidentiality in some situations, a later colloquy between Representative Erlenborn and Representatives Goldwater and Fascell explicitly defines the limits of Exemption (k)(5). See text infra, at notes 39-43.

35 . See text supra at note 29.

³⁶

37 . These considerations bare another infirmity in the District Court’s ruling. The case was terminated by entry of a summary judgment, a procedure which is authorized only when “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The crucial issue posed by the FBI’s invocation of Exemption (k)(5) was whether, in the instance of each supplier, the FBI obtained information later withheld through an implied promise of confidentiality. The question obviously was one of fact: whether the circumstances surrounding acquisition of the information warranted implication of such a promise.

In the District Court’s words, the problem confronting it was “whether, with regard to the investigatory material concerning [Londrigan], implied promises that the identity of the sources who furnished such information to the Government would be held in confidence may be found by the Court to have been made.. . . ” Londrigan v. FBI, supra note 5, Order (filed Jan. 30, 1979) at 1, App. 96. The court then, upon “an examination of the documents at issue” and “particularly noting the types of individuals interviewed,” “the substance of the questions asked” and the fact “that the interviews were conducted by agents of the [FBI] in 1961,” concluded that they “reveal[ed] sufficient circumstances indicating the existence of implied promises of confidentiality. . . . ” Id., App. 96 (citation omitted). In so doing, the court exceeded the limits circumscribing the use of summary judgment.

To be sure, any number of circumstances may combine to convince a trier of fact, as a matter of logical inference, that particular information was procured in a particular situation by a particular inquirer from a particular supplier only in consequence of an assumed though unarticulated assurance of confidentiality. Here, however, the District Court did not have the role of factfinder when it acted, nor were the circumstances enumerated by the court so compelling as to render such an inference inevitable on all occasions. The vagaries of human nature being what they are, the most that can be said is that some people would, but others would not, presuppose that the interviewee’s identity would remain enshrouded in secrecy. A conclusion that a supplier made that assumption can follow in any given instance only by force of inference from its own set of circumstances.

Recounting well-settled principles governing resort to the summary judgment procedure, we admonished very recently that

[t]he court’s function is not to try disputed issues of fact, but only to ascertain whether such an issue is present, and any doubt on that score is to be resolved against the mov-ant. Since it is he who bears the onus of establishing his entitlement to summary judgment, his opponent enjoys the benefit of all favorable inferences from the evidence proffered....

Abraham v. Graphic Arts Int’l Union, 212 U.S.App.D.C. 412, 415, 660 F.2d 811, 814 (1981) (footnotes omitted). It follows that “[s]ummary judgment should not be granted where contradictory inferences may be drawn from' undisputed evidentiary facts,” United States v. Perry, 431 F.2d 1020, 1022 (9th Cir. 1970); and that “[e]valuative judgment between two rationally possible conclusions from facts cannot be engaged in on summary judgment.” Chenette v. Trustees of Iowa College, 431 F.2d 49, 53 (8th Cir. 1970). It is “[o]nly where the facts supportive of a summary judgment can be held to have so unambiguously established the actualities of a situation as to leave no basis of substance for dispute as to their reality or as to the conclusion required from them is a summary judgment entitled to be entered.” Id. Accord, Sears, Roebuck and Co. v. GSA, 180 U.S.App.D.C. 202, 206, 553 F.2d 1378, 1382, cert. denied, 434 U.S. 826, 98 S.Ct. 74, 54 L.Ed.2d 84 (1977); Lighting Fixture & Elec. Supply Co. v. Continental Ins. Co., 420 F.2d 1211, 1213 (5th Cir. 1969); S. J. Groves & Sons Co. v. Ohio Turnpike Comm’n, 315 F.2d 235, 237-238 (6th Cir.), cert. denied, 375 U.S. 824, 84 S.Ct. 65, 11 L.Ed.2d 57 (1963). Here the circumstances relied upon by the District Court did not lead inexorably to implication of promises of confidentiality — either wholesale, or on any particular occasion — and the court erred when it engaged in fact finding in the context of summary judgment.

38 . The House debated H.R. 16373 on November 20, 1974, at which time it adopted the amendment. 120 Cong.Rec. 36658 (1974). The following day it enacted the measure as a whole. Id. at 36976. On December 11, the House also passed the Senate version of the bill, with an amendment substituting its own language for that of the Senate in its entirety. Id. at 39204. It was this substitute to which jointly agreed-upon amendments were made to produce the final legislation. Id. at 40400 (remarks of Senator Ervin), 40410-40411 (remarks of Senator Hruska).

39 . Id. at 36357 (remarks of Representative Erlenborn).

40 . See, e.g., id. (remarks of Representatives Abzug, Fascell and Goldwater).

The emphasis placed on maximal disclosure by both the House and the Senate is highlighted by the treatment of an aspect of Exemption (k)(5) not before us in this case. The debates in both Houses considered the related question whether an individual already employed by the Government, but denied promotion allegedly on the basis of confidential derogatory information, could be denied access to that information in the context of a legal proceeding on the ground that confidentiality of the source would be breached. Both chambers placed in the record a staff report which concluded that the Erlenborn amendment in no way precluded access under' those circumstances. Id. 40406 (Senate version), 40881 (House version with some variations in' language). In the House, an exchange between Representatives Alexander and Erlenborn made clear that, if the information were essential to the case, the Government would have to disclose the source or lose. Id. at 40884-40885.

41 . Id. at 36657 (remarks of Representative Fas-cell); see note 44 infra.

42 . Id. (remarks of Representative Erlenborn).

43 . Id. (colloquy between Representative Goldwater and Representative Erlenborn).

44 . See text supra at note 32. We realize that, literally read, Representative Fascell’s statement was that he had never received an express promise of confidentiality on any occasion when he supplied the information. The point, however, is that Representative Erlen-born interpreted it differently: “The gentleman from Florida says that he has never had any promises, express or implied." 120 Cong.Rec. 36657 (1974) (emphasis supplied). Representative Erlenborn obviously understood Representative Fascell to mean that in no instance had he detected any assurance of confidentiality. Accordingly, Representative Erlenborn replied, “in that case, his name will be made available . . . because the only thing that would be protected are those confidential sources.” Id.

45 . That conclusion in this instance is undoubted. We do not imply that the proof need always be so positive. Indeed, this notation on one of the documents in Londrigan’s file appears to be an agent’s record that an express promise of confidentiality was made to the provider of the information contained therein. See text supra at note 20.

46 . For, example, a specific request for confidentiality is reflected in one document. See text supra at note 20 & note 45 supra. We do not accept Londrigan’s contention that only sources of derogatory information are protected from identification. Congress did not distinguish among types of information in drafting Exemption (k)(5). See 120 Cong.Rec. 36656 (1974) (remarks of Representative Erlenborn). Moreover, differentiation of derogatory and complimentary comments may sometimes be impossible; one may be complimented by comments from a stranger, yet insulted by the same remarks from a close friend. We do not believe the distinction is a sensible one.

47 . We doubt that the FBI can satisfy its burden of establishing an implied promise of confidentiality without at least affidavits from these agents. Should the FBI elect not to obtain them, though, there is an even greater need for their depositions. See Part III infra.

48 . In other words, some basis must be established that the interviewee was actually led to believe or expected that the information he provided would be kept confidential.

49 . See note 46 supra.

50 . Fed.R.Civ.P. 56(e).

51 . See C. Wright & A. Miller, Federal Practice § 2738 (1973).

52 . See J. Moore & J. Wicker, Federal Practice 56.22[1] (1980).

53 . See id.

54 . We refer to Part 15(B), which includes the second and third paragraphs on page 5 of the affidavit, App. 14, and the first paragraph on page 6, App. 15.

55 . See text supra following note 47.

56 . See text supra at notes 33-36.

57 . See text supra at note 32.

58 . See note 54 supra and accompanying text.

59 . “Should it appear from the affidavits of a party opposing the motion that he cannot for • reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.” Fed.R.Civ.P. 56(f).

60 . C. Wright & A. Miller, supra note 51, at § 2740.

61 . Londrigan v. Federal Bureau of Investigation, supra note 5, Affidavit of William A. Do-brovir, App. at 77.

62 . See note 59 supra.

63 . Discovery is especially important in cases, such as this, where a person requesting access to agency records under the Privacy Act or FOIA is entitled to as complete and accurate an explanation of the reasons for nondisclosure of sought-after information as the agency is able to provide. In this context, discovery benefits not only the requester but also the court, which must review an agency decision not to release. See, e.g., Founding Church of Scientology v. National Security Agency, 197 U.S.App.D.C. 305, 314 & n.75, 610 F.2d 824, 833 & n.75 (1979).