Justia.com Opinion Summary:
Plaintiff brought suit under the Freedom of Information Act (FOIA), 5 U.S.C. 552, against the DEA seeking unredacted versions of two DEA reports. Plaintiff sought records of the DEA's investigation of him for drug activities. The DEA appealed the district court's order partially granting summary judgment in favor of plaintiff. The court reversed the district court's ruling for disclosure of the "Details" section of the 1990 report at issue and concluded that the redaction was appropriate under exemption 7(D) because there was an implied assurance of confidentiality under that exemption. The court also reversed the district court's ruling related to paragraph 7 of the 2008 report where the withheld information could be used to identify a private individual and triggered privacy concerns.Receive FREE Daily Opinion Summaries by Email
Civil Case - Freedom of Information Act. District court's order of disclosure of details of DEA report of information provided by confidential informant who had assurance of confidentiality is reversed, as there was an implied assurance of confidentiality under exemption 7(D). Disclosure of names and signatures of law enforcement personnel is protected under exemption 7(C) because privacy interest outweighed public interest in disclosure.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
Plaintiff - Appellee,
* Appeal from the United States
* District Court for the
* Northern District of Iowa.
Drug Enforcement Administration,
Defendant - Appellant.
Submitted: December 15, 2011
Filed: March 2, 2012
Before LOKEN, BRIGHT, and SHEPHERD, Circuit Judges.
BRIGHT, Circuit Judge.
Appellee Tony Hulstein brought suit under the Freedom of Information Act
(FOIA), 5 U.S.C. Â§ 552, against appellant Drug Enforcement Administration (DEA)
seeking unredacted versions of two DEA reports. The DEA now appeals the district
courtâs order partially granting summary judgment in favor of Hulstein. For the
following reasons, we reverse.
In 2009, Hulstein was charged with dealing firearms without a federal firearms
license. In preparation for the case, Hulstein learned that the DEA had previously
investigated him for drug activities, and based on that information, Hulstein filed a
FOIA request for the records of any investigations.1 The DEA released two
investigative reportsâone from 1990 and the other from 2008. However, the DEA
also redacted significant portions of the reports under several FOIA exemptions.
Hulstein sought to obtain unredacted versions of the reports and, after
exhausting his administrative remedies, filed suit in federal court under 5 U.S.C.
Â§ 552(a)(4)(B). Hulstein and the DEA filed cross-motions for summary judgment,
and the district court heard arguments in a telephonic hearing. On March 11, 2011,
the district court granted Hulsteinâs motion in part, denied it in part, and reserved
ruling on several sections pending the submission of unredacted versions of the
documents for in camera review. After its review, the district court ordered disclosure
of several other sections of the reports in a supplemental order filed with the judgment
on March 22, 2011. In total, the district court ordered the DEA to disclose the names
and signatures of DEA agents (or special agents) in both reports, the âDetailsâ section
of the 1990 report, most of the first sentence in paragraph 3 of the 2008 report, and
paragraph 7 of the 2008 report. The DEA appeals the district courtâs orders with
regard to each section except the first sentence in paragraph 3 of the 2008 report.
The DEA argues that FOIA exemptions 7(C), 7(D), and 7(F) apply to various
portions of the redacted information. We review the applicability of FOIA
exemptions de novo. Peltier v. Fed. Bureau of Investigation, 563 F.3d 754, 762 (8th
Hulstein was never charged in connection with these investigations.
A. Exemption 7(D)
The DEA argues that the âDetailsâ section of the 1990 report was provided by
a source who had an assurance of confidentiality and is therefore exempt under section
7(D). Hulstein responds that the DEA must make a fact-related showing that the
source was a confidential informant, which they failed to do, therefore the information
must be disclosed.
âCongress intended FOIA to permit access to official information long shielded
unnecessarily from public view.â Milner v. Dept. of Navy, 131 S. Ct. 1259, 1262
(2011) (quotation omitted). âFOIA thus mandates that an agency disclose records on
request, unless they fall within one of nine exemptions. These exemptions are
explicitly made exclusive and must be narrowly construed.â Id. (quotations omitted).
Exemption 7(D) covers:
records or information compiled for law enforcement purposes, but only
to the extent that the production . . . (D) could reasonably be expected to
disclose the identity of a confidential source . . . and, in the case of a
record or information compiled by criminal law enforcement authority
in the course of a criminal investigation . . . information furnished by a
5 U.S.C. Â§ 552(b)(7)(D). The exemption can be divided into two separate sectionsâ
the first exempting information that could reveal the identity of a confidential source,
and the second exempting information provided by a confidential source to law
enforcement in the course of a criminal investigation. The government has the burden
of establishing that the exemption applies. 5 U.S.C. Â§ 522(a)(4)(B).
In United States Depât of Justice v. Landano, the Supreme Court settled a
circuit split over whether the FBI was entitled to a presumption of confidentiality for
all sources providing information in the course of a criminal investigation. 508 U.S.
165, 167 (1993). After noting a brief history of exemption 7(D), the Court stated that
a confidential source was âwithin the meaning of Exemption 7(D) if the source
âprovided information under an express assurance of confidentiality or in
circumstances from which such an assurance could be reasonably inferred.ââ Id. at
172 (quoting S. Rep. No. 93â1200, at 13, U.S. Code Cong. & Admin. News pp. 6267,
The Court also stated that âthe 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.â Id. at 181.
However, the Court did not go so far as to require the FBI to make âdetailed
explanations relating to each alleged confidential source.â Id. at 170â71 (quotation
omitted). Instead, the Court concluded that more narrowly defined circumstances
could be âgeneric circumstances in which an implied assurance of confidentiality
fairly can be inferred.â Id. at 179. As examples of such circumstances, the Court
noted the nature of the crime investigated and the witnessâs relationship to the crime.
In this case, the district court rejected the argument that the information could
reveal the identity of a confidential source, but did not address whether there was an
implied assurance of confidentiality based on the circumstances. We need not address
whether the redacted information in the 1990 report could reveal the identity of the
source because we determine that an implied assurance of confidentiality rests on the
nature of the alleged crime and the witnessâs relationship to the crime.
The DEA is not required to make a detailed explanation regarding the alleged
confidentiality of each source. See id. After Landano, other courts have also
concluded that âthe violence and risk of retaliation that attend [drug trafficking]
warrant an implied grant of confidentiality for such a source.â Mays v. Drug
Enforcement Admin., 234 F.3d 1324, 1329 (D.C. Cir. 2000) (concluding there was an
implied grant of confidentiality for a source who provided information about a
conspiracy to distribute crack and powder cocaine); see also, U.S. Depât of Justice,
Guide to the Freedom of Information Act 618â19 n.63 (2009) (listing cases).
The risk of retaliation against the source is supported by the unredacted portion
of the 1990 report and the nature of the alleged crime the DEA was investigating.
Such a risk still exists, and warrants an implied grant of confidentiality, even after the
passage of time and whether or not the allegations were acted upon by the authorities.
In addition, the redacted portion of the 1990 report independently supports the DEAâs
argument that there was an implied assurance of confidentiality with the source.
Therefore, we reverse the district courtâs ruling for disclosure of the âDetailsâ section
of the 1990 report, and conclude that the redaction is appropriate under exemption
B. Exemption 7(C)
The DEA withheld the names and signatures of law enforcement personnel
from both reports, and paragraph 7 of the 2008 report under exemption 7(C).2
Exemption 7(C) covers information compiled for law enforcement purposes that
âcould reasonably be expected to constitute an unwarranted invasion of personal
privacy[.]â 5 U.S.C. 552(b)(7)(C). The law enforcement exemption for personal
privacy offers more protection from disclosure than the more general personal privacy
exemption in FOIA. Compare 5 U.S.C. Â§ 552(b)(7)(C) (quoted above) with 5 U.S.C.
Â§ 552(b)(6) (requiring a âclearly unwarranted invasion of personal privacyâ); see also
Natâl Archives & Records Admin. v. Favish, 541 U.S. 157, 165â66 (2004).
The DEA also argued that the âDetailsâ section of the 1990 report is covered
by exemption 7(C) and that all of the withheld information is covered by exemption
7(F). See 5 U.S.C. Â§ 522(b)(7)(F) (exempting information that âcould reasonably be
expected to endanger the life or physical safety of any individual.â) We decline to
reach these arguments. Only one exemption is necessary for redaction, and we
conclude that the information is covered by other exemptions.
This court has previously upheld the withholding of names of state and local
law enforcement personnel from FBI reports noting that â[t]hese persons have âwellrecognized and substantial privacy interests in the withheld information.ââ Peltier,
563 F.3d at 762 (quoting Neely v. Fed. Bureau of Investigation, 208 F.3d 461, 464
(4th Cir. 2000); see also Sussman v. United States Marshal Service, 494 F.3d 1106,
1115 (D.C. Cir. 2007). The Fourth Circuit elaborated, â[a]mong other things, these
individuals have a substantial interest in the nondisclosure of their identities and their
connection with particular investigations because of the potential for future
harassment, annoyance, or embarrassment.â Neely, 208 F.3d at 464â65 (citing cases).
The general rule is that when documents are within a disclosure provision of
FOIA, a citizen is not required to provide a reason why they seek the information.
Favish, 541 U.S. at 172. FOIA is meant to ensure citizens know âwhat their
Government is up to.â Id. at 171 (quotation omitted). However, under exemption
7(C), âthe statute requires us to protect, in the proper degree, the personal privacy of
citizens against the uncontrolled release of information compiled through the power
of the State,â and âthe usual rule that the citizen need not offer a reason for requesting
the information must be inapplicable.â Id. at 172.
If a legitimate privacy interest is implicated under exemption 7(C), the
individual making the FOIA request can trigger a balancing of public interests with
the privacy interests by (1) âshow[ing] that the public interest sought to be advanced
is a significant one, an interest more specific than having the information for its own
sake,â and (2) â show[ing] the information is likely to advance that interest.â Id. If
the requester is claiming government wrongdoing, then the individual must âproduce
evidence that would warrant a belief by a reasonable person that the alleged
Government impropriety might have occurred.â Id. at 174; see also Boyd v. Criminal
Div. of the United States Depât of Justice, 475 F.3d 381, 386â87 (D.C. Cir. 2007).
Hulstein presented no public interest to weigh against the agentsâ recognized
privacy interests in their involvement in a particular investigation, nor offered any
evidence of government impropriety beyond casting general aspersions on the fact
that the DEA was investigating him. See id. Absent any such allegations, the names
of the agents involved in the investigation should remain confidentialââsomething,
even a modest privacy interest, outweighs nothing every time.â See Natâl Assân of
Retired Fed. Emps. v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989). Therefore, we
reverse the district courtâs ruling related to the disclosure of the names and signatures
of law enforcement personnel.
Exemption 7(C) also covers other persons mentioned in law enforcement
records, including suspects, witnesses, and informants. Sussman, 494 F.3d at 1115.
A citizenâs right to be informed about their Governmentâs actions âis not fostered by
disclosure of information about private citizens . . . that reveals little or nothing about
an agencyâs own conduct.â United States Depât of Justice v. Reporters Comm. for
Freedom of Press, 489 U.S. 749, 773 (1989).
An in camera review of paragraph 7 of the 2008 report shows that the withheld
information could be used to identify a private individual and, therefore, triggers the
privacy concerns under exemption 7(C). The information also casts minimal light on
the DEAâs conduct and would reveal nothing meaningful about the DEAâs
performance of its statutory duties. Absent any allegations of government
wrongdoing in the investigation, the privacy interests of the private citizen in
paragraph 7 of the 2008 report outweigh any public interest in the disclosure of the
paragraph. Therefore, we also reverse the district courtâs ruling related to paragraph
7 of the 2008 report.
For the foregoing reasons, we reverse the judgment of the district court.