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

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.

John F. Daly:

–Well, I think the important point, Justice O’Connor, is that we need a starting point for this analysis.

The problem, as we point out, both in terms of the statutory language and the underlying policies of exemption 7(D) is that you need a realistic starting point because, if one has to rely on the content of the information, of the particular crime that’s at stake, the protection that’s going to be provided is going to be very unreliable, and that’s one of the keys to this case, I think.

Sandra Day O’Connor:

Well, I mean if you can determine from the particular circumstances that there is a likelihood of the presumption of confidentiality, that’s one thing, but I wonder if it should be applied across the board?

John F. Daly:

Well, Your Honor, I think the main circumstance that we do know is that we know that someone… say, an individual… has provided information to the FBI in the course of a criminal investigation.

That very fact is very important, because the FBI has a decades-long tradition of maintaining the confidentiality of its records.

Sandra Day O’Connor:

Does the… is it a practice at the FBI for any kind of notation to be put in the file in connection with each witness interview as to whether it’s confidential or not–

John F. Daly:

No, Justice O’Connor.

Sandra Day O’Connor:

–Or whether there’s been any assurance?

John F. Daly:

No, Justice O’Connor, and that is one of the key problems here.

Sandra Day O’Connor:

But I guess you could do that.

John F. Daly:

It potentially could be done prospectively.

We would submit that Congress hasn’t imposed such a requirement on the FBI, and that in itself would be a very dramatic departure from the way the FBI is doing business now, and on a practical level as well, this… the respondent has tried to characterize our position as something new, some change.

In fact, this is the way the FBI has been proceeding throughout the history of exemption 7(D) since it was enacted in 1974.

Even if one were to say that oh, the FBI could change the way it does business in the future, (a) that in itself would be a change that should come from Congress and not the courts, and (b) that would do nothing for the enormous storehouse of information which exists right now.

I mean, if the Court were to say, well, it’s all well and good, but the FBI has to show us specific circumstances, for most of what’s there it simply doesn’t exist.

Sandra Day O’Connor:

Well, how about having to show just the general circumstances surrounding the situation?

That’s–

John F. Daly:

I think part of the problem that we have with the respondent’s view and with the view of the court of appeals is that they’ve never told us exactly what circumstances they want to hear, and frankly we have to question how useful the information would be, if one is talking about the physical circumstances… there was no one else in the room.

The door was closed.

Sandra Day O’Connor:

–Well, how about the nature of the crime–

John F. Daly:

The nature–

Sandra Day O’Connor:

–And the witness’ relation to it?

John F. Daly:

–That is something that we will sometimes be able to tell from the face of the documents, but there again, I think one of the keys which we discuss in our brief is the fact that Congress was aware that… what needs reliable protection for sources, and in our view the language of the statute gives great flexibility in this regard.

After all–

Antonin Scalia:

Well, on that point–

–It could have said that so easily and so explicitly.

Congress had the opportunity to say,

“All investigatory records of law enforcement agencies. “

It didn’t.

It would be so easy to say that, and you say that by simply saying,

Antonin Scalia:

“all investigatory records of law enforcement agencies provided by confidential sources. “

You’re saying essentially, “provided by confidential sources” means nothing… virtually nothing.

John F. Daly:

–No, not really, Justice Scalia.

You must recall that there are a number of sources that the FBI deals with that wouldn’t qualify as confidential at all.

There are many published sources… for example, books and magazines.

Wiretaps can be very important source of law information; also, unwitting witnesses who provide information to, for example, an FBI agent operating under cover.

Now, those are all sources, in the normal sense of that term, and–

Antonin Scalia:

You do not treat them as privileged.

John F. Daly:

–No, we do not, because the rationale that we’re talking about here just doesn’t apply to those kinds of sources.

The… in… this Court, in CIA v. Sims–

Antonin Scalia:

Wiretaps… wiretaps is not provided in confidence, so if you wiretap me that becomes public–

John F. Daly:

–It wouldn’t nec–

–But if you come up–

John F. Daly:

–There may be other exemptions.

Antonin Scalia:

–Above board and ask me a question, that doesn’t.

John F. Daly:

There–

Antonin Scalia:

That’s extraordinary.

John F. Daly:

–I don’t think so, Justice Scalia, because when you think… if we wiretap you, obviously without your knowledge, there is nothing in those circumstances from which a reasonable person could assume that there was an assurance of confidentiality.

When… in 1974, when Congress enacted exemption 7(D), the language that Congress used in the background was to say that a confidential source is one who provides information under an express assurance of confidentiality, or in circumstances from which such an assurance could reasonably be inferred.

You certainly can make no reasonable inference about confidentiality when you’re just talking on your phone.

Antonin Scalia:

–communicating.

How could I possibly have that–

John F. Daly:

Of course.

–Exactly.

John F. Daly:

But that’s key, and that’s a key limitation.

Byron R. White:

That might be exempt under some other provision.

John F. Daly:

It certainly might, Justice White, and I certainly wouldn’t want to say that wiretaps are something which we generally would give out, but the rationale that we’re talking about today would not apply to that at all.

Antonin Scalia:

What would you generally give out, outside of newspaper clippings?

What vast amount of information would be saved by this carefully crafted exemption.

John F. Daly:

Well, the kinds of information I’ve just talked about, and also anything–

Antonin Scalia:

What kind, newspaper clippings and things obtained from–

John F. Daly:

–Things that came–

Antonin Scalia:

–Magazine clippings.

John F. Daly:

–If it weren’t subject to some other exemption, something such as information provided by unwitting sources who talked to an undercover agent.

Also, anything that the FBI agents themselves do.

If they’re… there are plenty of documents that were given out in this case that refer to what the agents themselves were doing.

As long as that is the subject of the document and it doesn’t relay information that was given to the FBI by a source, then certainly that could go out.

David H. Souter:

Mr. Daly, even on your theory of sort of the implicit understanding that you find inherent in just the relationship between the investigator who identifies himself as such and the subject, aren’t there two possible implicit understandings in the absence of anything explicit to the contrary?

One may be that yeah, I’m talking to the FBI about a matter which it would be very dangerous to talk about, and I may assume that if they talk with them they’re not going to spill the beans on me, but the other understand proceeds, doesn’t it, from the fact that most people realize that the Government prosecutes crime in open courtrooms.

And if you give evidence to the FBI which tends to incriminate, isn’t it reasonable to suppose that you are quite likely going to be called to give that same kind of evidence in a courtroom, and how… on your theory we ignore the second category, and I don’t see how we can ignore that–

John F. Daly:

I don’t–

David H. Souter:

–Even on your theory of implicit understanding.

John F. Daly:

–I don’t think we ignore it, Justice Souter.

Even the court of appeals in the present case recognized that there were degrees of confidentiality.

There’s also a very good discussion of that point by Judge Silbeiman in the Mary Jones case.

David H. Souter:

Well, there are, but they’re never… on your… maybe I misunderstand your position, but as I understand it, on your position the possibility of there being a lesser degree of confidentiality implicit with respect to a given witness is in all probability never going to be known or investigated.

I mean, how are… if the burden is on the claimant for the information to say well, I ought to know who this is, because this is probably a person who would have understand that he might have to testify, how is that person going to make that case, on your view?

John F. Daly:

Well, I think we have two answers there, Justice Souter, and first of all I would have to take issue with the notion that a person who thought that he might have to testify, or even that he would probably have to testify, such a person could still have an implied assurance of confidentiality to an important degree.

This case doesn’t expressly pose the issue of waiver, but several of the lower courts–

David H. Souter:

Well, he could have, but if he doesn’t say… if he says something, then you’re not resting on implication.

He says, I don’t want to get involved, and the agent says, don’t worry, you won’t have to be, just tell me what you know, then you’re not resting on your implication, but if the person says nothing, I suppose it’s reasonable to expect that the individual knew that he might have to give evidence.

John F. Daly:

–I don’t think that’s so at all, and I think it’s important to remember that when Congress was enacting 7(D) it specifically stated that confidentiality was not to be limited to express confidentiality, and that, I think, is one of the key problems with respondent’s view.

Essentially, what they’re asking for is that if you… if the FBI is required to make this fact-specific showing, and not even knowing what circumstances are going to satisfy most district courts, what we’re probably going to be left with as the only way that we can reliably protect confidentiality is expressed confidentiality, but Congress didn’t say that.

Congress said that they wanted to protect sources who receive express assurances of confidentiality, or who provided information under circumstances in which an implication of confidentiality would naturally follow.

Antonin Scalia:

Well, how about my–

–You said Congress said that.

Where did Congress say that?

John F. Daly:

That’s in the legislative history, Judge… Justice Scalia.

Antonin Scalia:

Well, specifically who said it?

John F. Daly:

That was in the conference committee report–

Antonin Scalia:

How many people are on that committee, do you know?

John F. Daly:

–I can’t give you the exact number.

As we’ve pointed out, that conference committee report was a fairly key juncture of the legislation because there were changes made in the conference committee before it was finally enacted by Congress, but to return–

David H. Souter:

I think I’m still left with the problem that I raised, and that is, on your theory I’m not quite sure how the claimant for the information is ever going to be in a very good position to say, oh, well, this is a person… we offer to prove, for example, that this is a person who would not have reasonably expected confidentiality.

John F. Daly:

–We acknowledge, Justice Souter, that it’s going to be very difficult for them to make such a showing.

I’d like to get to that.

I want to answer, actually, the other part of your question that I don’t think I got to yet, which is the notion that a person who thinks that he might be called upon the testify later would necessarily not have an implication of confidentiality, and we would take strong issue with that.

This case doesn’t expressly involve the issue of waiver, but that’s another issue that the courts have dealt with extensively.

One of the leading cases is the en banc decision of the First Circuit in the Irons case.

In that case, that court recognized that there are degrees of confidentiality, and merely because someone is called upon the testify, there may be much about that person’s involvement with the FBI that remains confidential.

We don’t always know, even after a person testifies, everything about what he told the FBI.

There may be important things left.

As Judge Bryer concluded for the court there, that residuum of confidentiality is itself extremely important, and so therefore I’d say to you first of all that a person who talks to the FBI merely knowing that he might eventually be called upon to testify could indeed still have a very strong implied assurance of confidentiality because his normal expectation, and the normal expectations I think of all citizens based on the FBI’s long practice of maintaining its record so carefully and so confidentially, is that that information is not going to be made generally available to the public, as it is under FOIA.

No.

Instead, the FBI’s going to treat the information with care, use it for certain purposes, it may wind up involving testimony, but that does not mean that there’s no legitimate expectation of confidentiality within–

Antonin Scalia:

Indeed, even if there were… even if you required an assurance of confidentiality, an explicit assurance, you couldn’t give an assurance of confidentiality that would tell the person he wouldn’t have to testify.

John F. Daly:

–That’s correct.

It would be impossible.

John F. Daly:

That’s correct, Justice Scalia.

Antonin Scalia:

Which would make the provision a dead letter.

John F. Daly:

Exactly.

David H. Souter:

But at least in that case you would have a perfectly good argument for your degree of confidentiality.

You would say, well, the confidentiality at least extends beyond that point which came out in testimony, so you would have an easy way of applying your criterion that there are degrees of confidentiality, and that degree would be determined by the extent to which the confidentiality was invaded by public testimony.

John F. Daly:

Yes, but far more typically this issue is raised by plaintiffs saying hypothetically someone might testify, or might think that they might have to testify, and therefore there’s no confidentiality, and that, we think, is simply not the case.

The problem is that on a practical level the proof that would necessarily be needed under the court of appeals ruling usually isn’t there.

What we have is the fact that someone provided information to the FBI, we know that it was in the course of a criminal investigation.

We think that the proper starting point is that there is an implied assurance of confidentiality in that sort of encounter.

And I’d also remind the court that I think the language of the statute itself gives us a very important point here, and that particularly involves the 1986 amendment to exemption 7(D).

Prior to that time, the FBI would have to show that the release of a record at issue would result in the disclosure of a confidential source, or information from a confidential source.

Congress changed that in 1986 to say that we need only show that the release could reasonably be expected to have such a result.

John F. Daly:

4 years ago in a Reporters Committee, this Court recognized the significance of that language, and in particular its relationship to the notion that the Government may frequently make its showing by means of categorical showings and not by item-by-item, or as in this case, source-by-source showings.

Think, for example, of what is, I’m afraid, a typical document in question, an FBI interview report with a witness.

That report may begin that special agent Mary Jones spoke to John Smith of 123 Main Street on February 24th.

Smith related the following information.

And the document may then go on to give the information, giving nothing about the circumstances of the interview, but also giving nothing that would indicate that the normal presumption of confidentiality shouldn’t apply, and the question is, what is the FBI to do with that?

Certainly we seem not to be able to meet the court of appeals test requiring specific circumstances regarding the interview, but as a practical starting point we submit that, yes, based on common sense and based on the FBI’s tradition of confidentiality there should be the starting point that should be used by both the FBI and a reviewing court that yes, there is an implication of confidentiality there.

Byron R. White:

When was this policy first challenged, in what court of appeals or in what–

John F. Daly:

Well, it certainly goes back to the Lame decision in the Third Circuit which we discussed.

Byron R. White:

–When was that?

John F. Daly:

That was 1981, I believe.

Unfortunately, the Lame decision was followed by further Third Circuit decisions which seemed to create some confusion, at least in our view, even early on.

Byron R. White:

So how many circuits have dealt with it?

John F. Daly:

Eight circuits have dealt with it expressly.

Seven come in our favor.

The Third Circuit stands alone as coming out squarely against us on this issue.

The Ninth Circuit in the Wiener case that we have discussed–

Byron R. White:

Do you remember what the earliest district court’s decisions were that upheld your view of exemption 7?

John F. Daly:

–I’m not sure, Justice White, when the early district court decisions were.

I know the case that we all now look to as being the seminal case in the area is the Seventh Circuit’s ruling in Miller v. Bell, and that came in 1981, fairly shortly after the amendment went into effect.

The FBI has taken a consistent position on this.

Of course, before 1974 the issue didn’t arise because of the very broad exemption that they had under exemption 7, but after the amendment was passed in 1974, you can see, for example, we cite the 1975 memorandum by Attorney General Levy which recites that confident… that we would normally be able to withhold identities in this–

Byron R. White:

So before ’74 there was no question about–

John F. Daly:

–No, and–

–None at all.

John F. Daly:

–And since 1974, the FBI has consistently taken the position that this presumption of confidentiality has to be the starting point.

Byron R. White:

And every court up until now has agreed with you.

John F. Daly:

Well, as I said, you can go back to the earlier Third Circuit decisions.

We think there was some reason for doubt even within the Third Circuit because of different decisions, but apart from the Third Circuit, yes, we’ve been prevailing all along.

I think it’s important also–

Antonin Scalia:

Mr. Daly, you say as a first step at least they should… what’s the second step?

Antonin Scalia:

What does the person who wants information, what does he do when the FBI says well, presumptively in the absence of other indication, as you put it, this is confidential?

What do I then do as the requester?

John F. Daly:

–We readily acknowledge, Justice Scalia, that it’s a very difficult point, and there would be very, very few cases in which the presumption can be rebutted.

We think that’s appropriate, because indeed, this sort of implied confidentiality is the norm.

There may be a few cases–

Antonin Scalia:

Well then don’t describe it as a first step.

I mean, you’re really just closing the door, as a practical matter.

John F. Daly:

–As we’ve noted in our brief, there may be some rare cases, and we admit that they’re rare, in which the presumption may be rebutted.

This happened in Miller v. Bell itself.

The Seventh Circuit found an unusual circumstance in which a particular witness was known of and disavowed from the start any notion of confidentiality.

We admit that it’s going to be rare, Your Honor, but we also think it’s important to recognize that the policies of exemption 7(D) require protection of confidential sources, and if we are to use the approach of the Third Circuit, we won’t be able to do that.

Antonin Scalia:

I don’t mind if the result is rare.

I… it strikes me as rare that the requester even has the tools to challenge.

How do I know what the circumstances are?

I just have to trust you to say that the circumstances are such that it was provided under an assurance of confidentiality, don’t I?

John F. Daly:

That, unfortunately, is often the way things wind up working under FOIA, because the plaintiff never has the documents to begin with.

Certainly, if there’s any particular reason to think that the circumstances are unusual, if the plaintiff could articulate something, then perhaps that would justify in camera review.

That’s always available, and as we mentioned in our reply brief there was a recent Tenth Circuit case in which we invoked this theory and the Tenth Circuit deemed it appropriate to look at the documents and they said, yes, we’ve determined that’s right.

I think in the absence of some articulable reason to think that there was something unusual going on, then yes, you should keep to the presumption that there is an implied confidentiality here.

John Paul Stevens:

Mr. Daly, you gave some examples earlier of, say, an undercover agent talking to people, and there you would agree that there’s no presumption of confidentiality.

Can we tell from the materials you filed in this case that that is not what happened in this case, that some of these people whose interviews are not being disclosed were simply undercover agents talking to people who had no idea they were even FBI agents?

John F. Daly:

If one looks at the files in this case one can tell that we have not withheld in that circumstance.

One can look at the documents and tell that information is from a source, and–

John Paul Stevens:

Do you have to look at the documents to tell that?

John F. Daly:

–Oh, I think so, yes.

We would have to look at the documents.

John Paul Stevens:

Well then, how would the requester know whether it was an undercover agent or just a regular interview?

John F. Daly:

Certainly, the requester wouldn’t know initially.

John Paul Stevens:

Do you identify those cases in which it is a regular interview as opposed to an undercover agent?

I couldn’t find it right here, but I remember when I read the briefs I had the impression that I couldn’t tell whether this might have been somebody who just was… had a discussion with an FBI agent who was not even known to be an FBI agent.

John F. Daly:

The entire theory that we are advancing in this case would simply not apply, and we would not–

John Paul Stevens:

I know the theory wouldn’t apply, but the documents that you file in the district court supporting your refusal to produce don’t tell the judge whether he might not have been an undercover agent, as I read them.

Am I wrong on that?

John F. Daly:

–I’m not sure that we specifically addressed in the affidavit the notion of–

John Paul Stevens:

I don’t think you do.

John F. Daly:

–No, but the entire theory that we presented simply wouldn’t apply, and we would not–

I understand your theory would not have–

John F. Daly:

–We would not have used it–

John Paul Stevens:

–But it seems to me–

John F. Daly:

–In that particular–

John Paul Stevens:

–The papers that you are arguing are sufficient would prevent disclosure of the cases which you say… in cases where you say there should be disclosure.

John F. Daly:

–That presupposes that we would be misrepresenting–

John Paul Stevens:

No, you’re not misrepresenting, you just file something to say you should presume everybody’s… basically, you’ve said everybody we talk to should be presumed to be a confidential informant.

John F. Daly:

–No, we’ve said more than that.

We said that these are people we talk to in the course of a criminal investigation–

Right.

John F. Daly:

–And that those people have a legitimate expectation of confidentiality because of those… that circumstance.

John Paul Stevens:

You didn’t say that as to the particular, you said that’s our general practice.

As I understood the paper, you were basically describing a general practice which would generally support… when the practice applies, would generally support confidentiality, but under that umbrella it seems to me you’re going to pick up all these cases in which you think there should be disclosure.

John F. Daly:

Well, I can represent to you, Justice Stevens, that we would not be doing that, and we view that as inconsistent with the representation that we made in the court.

John Paul Stevens:

But my problem is… I’m not questioning your good faith, of course, but my problem is, how… I can’t tell whether a requester could tell whether you’d done that or not, and requesters tend to be suspicious, of course.

Maybe I’m not making my point clear.

John F. Daly:

Perhaps we could… we could make a specific recitation that we would not invoke this theory in the circumstance where the information was given to an undercover agent, but we think that is there in what we said, because our theory that we do expound just simply wouldn’t apply in a case like that.

John Paul Stevens:

Well, I understand your theory in this Court wouldn’t, and so forth, but I’m concerned about the particular case where you file this boilerplate affidavit which seems to me is so broad that it would cover every interview.

John F. Daly:

We don’t view this affidavit as covering those instances, Justice Stevens.

John Paul Stevens:

But my problem is, I don’t know how the district judge or the requester could tell by reading the affidavit that maybe some zealous FBI agent had used it inappropriately–

John F. Daly:

I still–

John Paul Stevens:

–Without saying anything false, because there’s no false representation in it.

John F. Daly:

–I think there would be something inherently false in that, because the theory that we discuss in that affidavit would simply not be applicable to an undercover source.

I’d like to reserve the remainder–

Anthony M. Kennedy:

If you have an ongoing undercover source, someone who is still undercover, and the request is for the production of that statement, is there another exception in section 7 that you could and likely would invoke in order to maintain the confidentiality of the record?

John F. Daly:

–Certainly, if there were an ongoing investigation, exemption 7(A) of the FOIA would apply, and as to the identity but not the content of the information, exemption 7(C).

Thank you, Mr. Chief Justice.

William H. Rehnquist:

Very well, Mr. Daly.

Mr. Mullin, we’ll hear from you.

Neil Marc Mullin:

Mr. Chief Justice and may it please the Court:

The FBI offers essentially three arguments in support of its nearly irrebuttable presumption.

One is its claim that as a factual matter the FBI’s presumption mirrors the relationship between itself as an agency and its sources.

That is, what my adversary just said holds.

In the context of a criminal investigation, sources expect confidentiality, typically, and typically the FBI assures it.

I call that the setting argument.

The second argument is a pragmatic argument.

William H. Rehnquist:

Call it the what?

Neil Marc Mullin:

The setting.

That is, in the setting of a criminal investigation, confidentiality is inherent.

The second argument is that… is what I’m calling a pragmatic argument, which is that the FBI… that if the presumption that the FBI seeks here today is not granted there will be some sort of administrative or adjudicative havoc, that the FBI is not prepared to come forward with case-specific proofs in the event this Court affirms the Third Circuit, that the FBI doesn’t maintain records of confidentiality.

Even though confidentiality is so important, the FBI tells us, they maintain no records, so that an agent in 1952 doesn’t know whether in 1946 a source was assured confidentiality… no records.

Third is a textual claim that the 1986 amendments and their history provide a statutory basis for the presumption.

This argument is somewhat of a moving target.

In their reply brief the FBI seems to shift from the affirmative posture of its main brief that the 1986 language provides a textual basis for its presumption to a claim… a more cautious claim that FOIA simply doesn’t preclude a presumption.

The FBI’s claim that in the setting of a criminal investigation virtually all witnesses typically require confidentiality doesn’t ring true in the context, for example, of this case.

Before the criminal trial of the matter underlying this case, numerous FBI investigative reports prepared by the FBI were turned over to my client.

I was not the trial lawyer.

In those discovery documents, the names of 41 law enforcement personnel were revealed, 31 witnesses were revealed by name, and 16 of them by address.

The fact that some of these witnesses testified at trial appears in press clippings in the disclosures that the FBI made to me.

Indeed, the Hudson County Prosecutor’s Office that worked–

Antonin Scalia:

And your point is that that shows that there was no assurance of… but they couldn’t give an assurance of confidentiality that they wouldn’t be compelled to disclose some matters in the course of–

Neil Marc Mullin:

–Exactly.

Antonin Scalia:

–Well then, there’s no such thing as an assurance of confidentiality if you insist that it be absolute.

Neil Marc Mullin:

No, I don’t insist that it be absolute, Your Honor.

Antonin Scalia:

Well, this is in the course of litigation that they turned it over.

They just didn’t say, hey, you want these names… here.

It was in the course of a discovery request filed with them, is that right?

Neil Marc Mullin:

I think… yes, that’s right.

Well, if confidentially means even people who get up in front of public… in front of trials, in front of juries, in front of cameras and newspapers, then I’m wrong and the FBI’s right.

That’s what confidentiality means.

Antonin Scalia:

Well, I mean, people tell me things sometimes, and say keep it confidential, and I often tell my wife.

I don’t feel I’m breaking a… I mean–

Neil Marc Mullin:

Exactly.

Antonin Scalia:

–You know, but I don’t blab it around.

Neil Marc Mullin:

And if I… Your Honor, and if I’m a source, and I tell the FBI to maintain confidentiality, what I mean is, you can tell law enforcement people as needed, but please, don’t tell the people over there that want to kill me or harass me.

I want anonymity.

In the case of an entity, Your Honor, which is also covered by 7(D), it may not mean anonymity, it may mean, I need secrecy.

Sure, everybody knows that the New York Police Department is a source of the FBI, but don’t reveal my operational secrets.

And in the parlance of the congressional discussion of 7(D) and 7 broadly, in that parlance, in that usage, it became clear that what Congress was talking about was anonymity, confidentiality in the sense I’m talking about.

Director Webster, Director Casey appeared there… they were worried about people who feared that detriment would come to them.

William H. Rehnquist:

Why couldn’t they use the word, anonymous, then, rather than confidential?

Neil Marc Mullin:

They used the word, “confidential” in order to broaden the category from “informer”, which was in the original draft.

They used the word “confidential” to show they weren’t just considering paid informants or cloak-and-dagger informants in the traditional sense, so they chose the word, “confidential”.

Would that they had used a phrase such as they used in the debate interchangeably with confidential source.

You know, would that they had used the phrase, anonymous or some element of secret, and we wouldn’t be here today.

I agree to you there is some element of ambiguity in the phrase, “confidential source”, that requires us to look at the congressional debate, just as this Court in Abramsom looked at the usage of the word, “record” in the congressional discussion in order to determine its meaning.

In the real world, as in this case… this case involved a police killing, and what I’m telling the Court is people came forward freely, openly, wanting to help.

Those that didn’t want to get involved, to use an expression, didn’t get involved.

They didn’t give statements at all.

But those that chose to get involved in this very serious crime as witnesses came forward, provided their names and addresses, testified at trial… in the real world there is no invariable setting.

This is the point I’m trying to make.

While sources will require anonymity or degree of secrecy of information, the average witness to some discrete aspect of a crime, having made the difficult threshold decision to get involved, does not thereafter typically require some sweeping confidentiality.

William H. Rehnquist:

Well, we’re talking, I guess, about two different suppositions.

One is the supposition that you advanced to us just now based on your own experience.

William H. Rehnquist:

The FBI says something different.

How do we evaluate that?

Neil Marc Mullin:

Well, there’s great difficulty in evaluating, because the FBI has not provided this Court, or Congress for that matter, with a record.

The FBI hasn’t told us what percentage of sources want confidentiality in the narrow sense, what percentage of sources need some kind of anonymity, which entities require some level of secrecy.

Mr. Daly stands up and tells… in response to, I believe it was Justice O’Connor’s question, no, we keep no records of confidentiality, we make no notation.

That’s not in the record.

That’s not here, and it’s not in the Congressional Record, because Congress was not grappling with the problem Mr. Daly brings to this Court in 1981, ’82, ’83, ’84.

Congress was not confronted by a law enforcement community that said, gee, it’s going to be difficult, if not impossible, to prove a source confidential.

In all those pages of Congressional Record, the FBI has not cited to this Court one phrase suggesting that problem was what Congress was grappling with when it drafted exemption, redrafted it in 1986.

No, Your Honor, there is no evidentiary basis, and no basis in the Congressional Record, for justifying, supporting this sweeping presumption.

There is no basis for this Court to conclude that that presumption nears reality.

Sandra Day O’Connor:

Well, Mr. Mullin, it seems to me the Third Circuit went pretty far in requiring case-specific proof here, and I’m just wondering if a considerably lesser evidentiary showing wouldn’t suffice.

For instance, what’s investigated here is a gang crime, and it’s logical that witnesses are going to be nervous about exposing their identity.

Neil Marc Mullin:

Sure.

If a witness–

Sandra Day O’Connor:

Do you defend the precise holding of the Third Circuit here on its requirements?

Neil Marc Mullin:

–I am burdened by the formulation used by the Third Circuit.

It’s a difficult burden to defend it in that precise formulation, but–

Sandra Day O’Connor:

Yes.

I just wonder if they haven’t gone too far, and whether some much lesser showing might not suffice and still be case-by-case.

Neil Marc Mullin:

–I think what’s happened here, Your Honor, is that because this presumption took hold throughout the circuits actually much later than might have been suggested in the brief of the FBI, the development of the common law, if you will, of exemption 7, has been truncated.

The courts have not been struggling with the issue you speak of and trying to devise methods of proof.

I think that if this Court will condemn, disapprove this sweeping presumption, it will necessarily open up a practical process of developing workable rules.

Your Honor suggested what might be a factually based or grounded presumption.

Suppose someone knowingly gives inculpatory information about a known organized crime figure?

Certainly in those circumstances, where there is a known, substantial threat of detriment, there should be a presumption of confidentiality, arguably.

William H. Rehnquist:

But how would one know all that just from a record of the interview?

Neil Marc Mullin:

Well, I think the FBI should tell us, or tell Congress what is in its records.

I suspect the FBI takes detailed notes, Your Honor–

William H. Rehnquist:

Well, you say tell Congress.

William H. Rehnquist:

Now you’re talking about, what, amending the statute again?

Neil Marc Mullin:

–Your Honor, I hope it doesn’t come to that.

What I’m suggesting is that the FBI probably has a higher level of detail in its files than it suggests here.

Why?

When Director Webster testified before Congress, he provided hundreds of detailed examples of the circumstances surrounding interviews with sources where in they requested anonymity or secrecy, or expressed those fears.

Where did the director get those literally hundreds of detailed examples, if not from the FBI’s records?

I suggest that it is not worthy of credence when the FBI tells us here that they don’t have records that can satisfy a more… a higher level of specificity.

The law has been unsettled in this area.

Certainly one reading Vaughn v. Rosen in 1974 would not predict the Dow case some years later.

Vaughn seemed to suggest that the agencies would be required to submit a high level of specification in defending exemptions.

And then there was Lame in 1981, and there was Keeney in 1980, a Second Circuit case that seemed to echo the Third Circuit’s rule, and there was the Dearing Milliken case in 1977 that said, whether or not a source is confidential is a question of fact.

Is it possible that the FBI, in the face of an unsettled body of law, took the most aggressive approach and said we’ll follow the majority rule even before it was a majority rule and didn’t keep records in the event this Court should some day resolve this unsettled body of law by saying no, this presumption has no basis in this statute, this presumption has no factual basis?

That proposition is not worthy of credence.

I submit that the FBI obeyed the law in the Third Circuit, as they had to, and that the FBI made case-specific determinations, at least within that circuit and that, given the unsettled nature of the law, the FBI kept accurate records such as the director relied on, such as the DEA relied on when it submitted numerous detailed examples of circumstances surrounding interviews.

Mr. Mullin–

Neil Marc Mullin:

Yes.

Antonin Scalia:

–I take it that… there are two parts to the exemption.

The first part is you can keep out information that could reasonably be expected to disclose the identity of a confidential source.

The second part is, in the case of information compiled by a criminal law enforcement agency you can keep out not only the information that will disclose the identity, but all of the information.

Neil Marc Mullin:

That’s right.

Antonin Scalia:

Now, it’s pretty clear what the reason–

Neil Marc Mullin:

Yes, sir.

Antonin Scalia:

–For that, isn’t it?

We don’t want to take a chance–

Neil Marc Mullin:

That’s right.

Antonin Scalia:

–That any snippet of information you might provide might enable the requester who, in some cases is a very dangerous person–

Neil Marc Mullin:

That’s right.

Antonin Scalia:

–Behind bars in prison who files a FOIA request.

Neil Marc Mullin:

That’s right.

Antonin Scalia:

We don’t want to take the chance–

Neil Marc Mullin:

That’s correct.

Antonin Scalia:

–Of some piece of information that means nothing to us meaning a lot to him and enabling him to identify a victim.

Neil Marc Mullin:

That’s correct.

Antonin Scalia:

Now, is it in accord with that prophylactic approach to this statute to handle it the way that you’re suggesting, to require the FBI in each case… and in some case they can’t come up with the necessary… well, we made a mistake, somebody dies.

Too bad.

Neil Marc Mullin:

Your Honor, a number of answers.

I think that’s a very, very weighty question, and when I make the argument here I’m not unaware of the dangers that exist for informants.

Fortunately, 7(D) is not the only way Congress dealt with that problem.

7(F), as you know, was expanded.

if an informant’s, or confidential source’s, or anybody’s life or safety is threatened in any way, it could reasonably be expected to be threatened, all the FBI has to do is check off 7(F) and there’s no danger to life or safety.

Antonin Scalia:

Make them prove that just the way you’re making them prove this.

I mean, can they adopt a categorical rule in the case of any request from violent people in prison?

We’re going to assume that any names we give them, or any information we give them might help them to get somebody.

You wouldn’t let them do that.

Neil Marc Mullin:

No.

I think you’re raising a weakness in the text of this statute.

I think it’s important that courts remain very sensitive to the dangers here.

Whatever this Court rules, it must remind them of the dangers here.

Workable rules that are based in fact have to be developed so that groups of witnesses, groups of sources can be analyzed, so that presumptions that are factually based can be utilized.

Well, that’s exactly right.

The FBI didn’t present this problem to the legislature.

They presented the mosaic problem but not this problem, and now they are presenting a problem they sat silently about.

In 1981, ’83, ’84, they didn’t mention this problem to Congress, not once, even though they brought the Lame decision to the attention of Congress.

Antonin Scalia:

Because they thought it meant… maybe it’s because they thought it meant what they now say it means.

They thought it enabled them to say categorically of course this information was proven.

Isn’t that a possible explanation of why they said nothing?

Neil Marc Mullin:

Respectfully no, Your Honor, because the FBI premises its categorical argument on case law that arose after Lame, especially Reporters Committee, the ’86 case, so I don’t think that the categorical approach to the… I don’t think the exemptions that were in jurisprudence had developed to a point in 1981 when Lame came down to where the FBI would have anticipated a categorical–

Byron R. White:

–circuit case that–

Neil Marc Mullin:

–Miller v. Bell.

Byron R. White:

–Was that 1980?

Neil Marc Mullin:

That was 1981, I believe.

Byron R. White:

1981.

Well, that was… that sustained the view of the FBI.

Neil Marc Mullin:

That’s correct.

Byron R. White:

And so why should it think it had a problem?

Neil Marc Mullin:

Well, I should think they’d have a very great problem, Your Honor, with such a deep split in the circuits.

The Seventh Circuit adopted the approach they urge here in ’81, and in ’81 the Third Circuit explicitly adopted the approach it took in my case, the Landano case.

It would seem to me that in those circumstances if the FBI really thought this was a problem they would have brought that split in the circuits to the attention of Congress.

In a Congressional Research Report that was put into the record by the sponsors of the 1986 amendments, which I’ve cited in my brief, the research group says that

“this amendment to exemption 7 is not intended to overrule any specific case, or any specific line of authority. “

and I’ve quoted that in my brief.

That means Lame, according to that–

Who said that?

Neil Marc Mullin:

–That was the CRS, Your Honor, the Congressional Research Service.

William H. Rehnquist:

Did it speak as to the intent of Congress?

Neil Marc Mullin:

No, but it was put into the record by one of the sponsors, Your Honor.

Excuse me.

On page 38 in my brief, Senator Leahy, a codrafter and co-sponsor of the ’86 amendments to exemption 7, referring to the proposed substitution of “could reasonably be expected” for the language “would”, put into the record the Congressional Research analysis which said,

“The proposed amendment does not appear to be prompted by any particular case or line of cases that have enunciated a contrary standard of the degree of risk of harm that must be shown to justify assertion of exemption 7(A)(D) or (F). “

Antonin Scalia:

I think it’s fair to conclude from that that Senator Leahy agreed with the Congressional Research Service, don’t you think–

Neil Marc Mullin:

That’s often the case–

Antonin Scalia:

–And probably not much else.

Neil Marc Mullin:

–Well, one thing we can say, that not once did Congress consider this problem, and I’m talking about all the Senators and all the Congressmen.

They didn’t hear about this proof problem or this administrative problem, and because they didn’t hear about it, they didn’t address it.

The language in exemption 7 that was as modified in 1986 was not directed at this problem.

The FBI therefore has a very difficult textual problem.

Even when this Court adopted a categorical approach to exemption 7(C), still it sought a textual basis in the “could reasonably be expected” language, as it did in Grolier, as it did in Robbins.

This Court has always sought a textual basis.

William H. Rehnquist:

The Seventh Circuit in Miller presumably ruled for the FBI on the basis of the statute as it existed before 1986.

Neil Marc Mullin:

Of course.

William H. Rehnquist:

So I mean, are you suggesting that unless the Government can make its case through the 1986 amendments, it must fail completely?

Neil Marc Mullin:

I’m suggesting that the Government must show this Court a textual basis in FOIA as amended in ’86.

Why?

Because this Court has held that unless exemptions are clearly delineated in the statute, then they will not be honored.

Can anyone… I’m sure the FBI would not contend before you today that… would not deny that their presumption expands the exemption 7(D), gives it a much broader impact, but this Court has said that if an exemption is not clearly delineated, it doesn’t exist, and this Court has said–

Well, then the–

Neil Marc Mullin:

–The exemption should be narrowly construed.

William H. Rehnquist:

–The courts of appeals such as the Seventh Circuit and the ones that followed were simply wrong, then, in your view.

Neil Marc Mullin:

Yes.

I feel a little bit like the guy who said the emperor has no clothes on.

I’m saying it.

The emperor has no clothes on.

We–

Neil Marc Mullin:

All these circuits are wrong.

[Laughter]

Antonin Scalia:

–We have in fact said that, Mr. Mullin.

We haven’t always behaved that way, though, you must admit that.

Neil Marc Mullin:

Yes, I do.

Antonin Scalia:

That our cases–

Neil Marc Mullin:

Yes, I do.

Antonin Scalia:

–Don’t always square with that noble sentiment that we’ve expressed.

Neil Marc Mullin:

Well, I think I’ve covered most everything.

I suppose I should close on–

Byron R. White:

–overruled a majority of the courts of appeals.

Neil Marc Mullin:

–I know it wouldn’t, and my inclination is to stop while I have the illusion that I’m ahead.

[Laughter]

Thank you very much for your time.

William H. Rehnquist:

Thank you, Mr. Mullin.

Mr. Daly, you have 2 minutes remaining.

John F. Daly:

Thank you, Mr. Chief Justice.

John F. Daly:

I think it’s important to keep in mind, as this Court has frequently noted, that the Congress intended for it to be governed by workable rules.

That is not simply a matter of administrative convenience or burden.

It really goes to the heart of what the policy of exemption 7(D) is all about.

What’s at stake here is very important.

It’s the FBI’s practical ability to protect confidential sources, and contrary to what respondent says, it is altogether very frequently the case that we simply do not have the sort of detailed information about circumstances of particular interviews, and even beyond that, I think it’s important to remember that Congress recognized that the public needs to have some certainty, some real assurance that the FBI is able to protect a confidential source.

That won’t exist if this issue winds up being decided on an ad hoc basis by judges who are frequently approaching the issue years after the fact, if we have to rely on showing the physical circumstances such as whether the door was shut or not, and also if we have to rely on the content of the information, if we have to say district judges saying, well, a murder investigation is sensitive, but some other Federal crimes and Federal criminal… Federal financial crime isn’t.

That’s not going to give us a sort of workable rule.

Byron R. White:

Could I ask you, let’s just assume that all that was involved here was how you should operate in the future.

Would it really be any burden to you to tell every witness that, even if he didn’t ask for it, you’d say, this is confidential.

John F. Daly:

I think that could be a significant burden, because it would change the way the FBI does business, and–

Byron R. White:

Well, it may be, but what would be burdensome about it?

John F. Daly:

–The… to be honest, Justice White, I’m not prepared today to talk about how that would involve day-to-day law enforcement activities, because that’s an issue… that’s… it’s a legislative issue.

If Congress wants to change the way the FBI does business, then it may do so.

I can only tell you–

Byron R. White:

Well, that’s hardly an answer to my question.

You just don’t know what the answer is, I guess.

John F. Daly:

–Well, the FBI has assured me that it would indeed change the way that they do business.

It would not only impose a practical burden, but could also change the interaction between witnesses and the FBI, and of course, Congress hasn’t done that, and of course–

Byron R. White:

It might make the witness shut up if you told him what he said was confidential.

John F. Daly:

–It’s possible, and it would do nothing for our concerns about existing records.

Thank you, Mr. Chief Justice.

William H. Rehnquist:

Thank you, Mr. Daly.

the case is submitted.

The honorable Court is now adjourned until Monday next at ten o’clock.