Assuming the record in question is “compiled for law enforcement purposes,” an agency must also justify why its disclosure would implicate at least one of the six specified harms identified in Exemption 7. Exemption 7(D) generally concerns records that would reveal the identity of a confidential source.
Text of Exemption 7(D)
(b) This section does not apply to matters that are—[...]
- (7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information [...] (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by 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,
To withhold records under Exemption 7(D), the government bears the burden of showing that the purported “confidential” source either “provided information under an express assurance of confidentiality or in circumstances from which an assurance could be reasonably inferred.” Under this exemption, “the question is not whether the requested document is of the type that the agency usually treats as confidential, but whether the particular source spoke with an understanding that the communication would remain confidential.”
In the leading case on Exemption 7(D), the U.S. Supreme Court rejected the FBI’s argument that all FBI informants should be presumed “confidential.” Instead, the Court provided examples of “narrowly defined circumstances” that could support an inference that the informant spoke under an implied promise of confidentiality. For example, the Court explained that “it is reasonable to infer that paid informants normally expect their cooperation with the FBI to be kept confidential.” Likewise, such an inference would arise where the FBI “typically communicates with [the] informants ‘only at locations and under conditions which assure the contact will not be noticed.”
The U.S. Court of Appeals for the First Circuit has noted that in some circumstances, “the fact that a source later gave public testimony might show that a law enforcement agency never gave a valid assurance of confidentiality in the first place,” and may “show that an assurance was intended by all parties to expire after a certain time.” For example, where an agency promised individuals who provided statements to its investigators that they would “be kept confidential by the United States government unless and until [they were] called to testify at a hearing,” a court held this did “not create a justifiable expectation of confidentiality after the close of enforcement proceedings.”
A source may waive Exemption 7(D) protection if they have “manifested complete disregard for confidentiality.” For example, where a “confidential source” requested records from the FBI and stated that he waived any expectation of confidentiality and that the agency did not have a duty to protect him, a court stated that it was “not inclined to protect [him] from information about himself.”
However, the U.S. Supreme Court has held that even where a confidential informant testifies publicly at trial, this does not necessarily result in a waiver of the exemption. The Court reasoned that the source and the agency ordinarily would not know whether the source will be called to testify at a trial at the time of their interview, and the exemption is not so limited in its scope that it only covers sources who expect complete anonymity.
Instead, the Court ruled, sources are “confidential” where they “furnished information with the understanding that the [agency] would not divulge the communication except to the extent the [agency] thought necessary for law enforcement purposes.” Therefore, courts have held that agencies are “not required to disclose the identity of a confidential source or information conveyed to the agency in confidence in a criminal investigation notwithstanding the possibility that the informant may have testified at a public trial.”
Courts have generally rejected passage of time arguments in the context of Exemption 7(D).
Strategies for challenging Exemption 7(D) withholdings
Recent district court opinions on Exemption 7(D)
- 5 U.S.C. § 552(b)(7)
- U.S. Dep’t of Justice v. Landano, 508 U.S. 165, 172 (1993) (quoting S.Rep. No. 93-1200, at 13).
- Landano, 508 U.S. at 172 (emphasis in original).
- Landano, 508 U.S. at 174.
- Id. at 179.
- Irons, 880 F.2d at 1447-48.
- Nemacolin Mines Corp. v. N.L.R.B., 467 F.Supp. 521, 524 (W.D. Pa. 1979)
- Parker v. Dep’t of Justice, 934 F.2d 375, 378 (D.C. Cir. 1991) (quoting Dow Jones & Co, Inc. v. Dep’t of Justice, 908 F.2d 1006, 1011 (D.C. Cir. 1990)).
- Ray v. F.B.I., 441 F.Supp.2d 27, 37 (D.D.C. 2006).
- Landano, 508 U.S. at 173-74.
- Id. at 174.
- Parker, 934 F.2d at 379.
- See Keys v. U.S. Dep’t of Justice, 830 F.2d 337, 346 (D.C. Cir. 1987).