Department of Justice v. Landano

PETITIONER: United States Department Of Justice et al.
RESPONDENT: Landano
LOCATION: Kenosha County Courthouse

DOCKET NO.: 91-2054
DECIDED BY: Rehnquist Court (1991-1993)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 508 US 165 (1993)
ARGUED: Feb 24, 1993
DECIDED: May 24, 1993

ADVOCATES:
John F. Daly - on behalf of the Petitioners
Neil Marc Mullin - on behalf of the Respondent

Facts of the case

Question

Media for Department of Justice v. Landano

Audio Transcription for Oral Argument - February 24, 1993 in Department of Justice v. Landano

William H. Rehnquist:

We'll hear argument now in Number 91-2054, the United States Department of Justice v. Vincent James Landano.

Mr. Daly.

John F. Daly:

Mr. Chief Justice, and may it please the Court:

This case involves exemption 7(D) of the Freedom of Information Act, which permits the FBI and other Federal law enforcement agencies to protect the identities of confidential sources and also, in the case of criminal law investigations, the information provided by those sources.

The specific question presented here is what exactly the FBI must do in district court to establish that a particular source may be treated as a confidential one.

Seven of the U.S. circuit courts of appeals have adopted the approach that we urge on the Court today.

That is, to allow the FBI to carry its burden by means of a categorical showing in which the FBI shows that each of the documents at issue falls within a category of sources... for example, State and local law enforcement agencies, for which an assurance of confidentiality is inherently implicit in the normal course of events.

On the other hand, the court of appeals in the present case has set down a rigid rule that the FBI cannot invoke exemption 7(D) unless it can provide

"detailed explanations relating to each alleged confidential source. "

We submit that the FBI should indeed be able to proceed on the basis of a categorical showing presuming confidentiality for these types of sources in the absence of an indication otherwise.

There are two essential reasons--

William H. Rehnquist:

What types of sources are you referring to again, Mr. Daly?

John F. Daly:

--The categories are indeed broad, Your Honor.

For example, in this case the FBI has contended that the individuals who provide information to the FBI in the course of a criminal investigation normally do so with an inherent understanding, an implied understanding of confidentiality.

William H. Rehnquist:

So your contention is that it should be enough to invoke exemption 7 if the FBI shows that the statement made by a particular individual was made to an FBI agent investigating a crime.

John F. Daly:

That's correct, Mr. Chief Justice.

Sandra Day O'Connor:

And that would be true even, for example, if the FBI were contacting some State authority in another State to determine somebody's whereabouts, or their criminal record, or anything of that kind.

John F. Daly:

Very much so, Justice O'Connor, because as the--

Sandra Day O'Connor:

Even though you wouldn't normally think that would be considered confidential.

John F. Daly:

--I would beg to disagree, Justice O'Connor, because as the declaration in the present case indicates, there is a particular tradition of confidentiality in the sort of information exchanged between law enforcement agencies.

When the law enforcement agencies and the FBI exchange information, there is a tacit understanding, which I believe the declaration in the present case said, for example, is reinforced in the daily contacts that FBI special agents have with local law enforcement agencies.

Sandra Day O'Connor:

Even as to routine information that's a matter of public record in that State.

John F. Daly:

Well, something like arrest records--

Sandra Day O'Connor:

It just strikes me that there could well be people who talk to the FBI who don't have that expectation.

John F. Daly:

--Well, I think, Justice O'Connor, what's important is not necessarily the subjective expectation of each individual, and the problem, as we've pointed out, is that to base the rule on the content of the information raises very problematic issues, because certainly when people are contacted, they... what they know for sure is they're talking to an FBI agent about a matter of criminal law.

That's the entire premise for our presentation.

An individual, or even a local police department, may not necessarily know what information will be particularly salient, and certainly in many investigations... after all, the present one involves the murder of a police officer.

Even the... what may seem on the surface to be routine--

Sandra Day O'Connor:

Well, perhaps the circumstances of a particular investigation would certainly justify the assumption in some cases.

For instance, a witness of a gang-related killing or something, I think most people would think those circumstances would give rise to a presumption of constitutionality, but I'm not sure it applies across the board.