981 F.

2d 552

PROVIDENCE JOURNAL COMPANY and Gerald M.

Carbone,
Plaintiffs, Appellees,
v.
UNITED STATES DEPARTMENT OF the ARMY, Defendant,
Appellant.
No. 92-1166.

United States Court of Appeals,

First Circuit.
Heard June 4, 1992.
Decided December 8, 1992.

John S. Koppel, Atty. Civ. Div., U.S. Dept. of Justice, Washington, DC,
with whom Lincoln C. Almond, U.S. Atty., Providence, RI, Stuart M.
Gerson, Asst. U.S. Atty. Gen., Leonard Schaitman, Lt. Col. Richard D.
Rosen and Major Patrick W. Lisowski, Washington, DC, were on brief,
for defendant, appellant.
Joseph V. Cavanagh, Jr. with whom Michael DiBiase, Karen A.
Pelczarski and Blish & Cavanagh, Providence, RI, were on brief, for
plaintiffs, appellees.
Before CYR, Circuit Judge, RONEY,* Senior Circuit Judge, and
BOUDIN, Circuit Judge.
CYR, Circuit Judge.

This appeal is taken from a district court judgment directing the United States
Department of the Army ("Army") to disclose to the Providence Journal
Company ("Journal"), pursuant to a Freedom of Information Act ("FOIA")
request, numerous documents relating to an internal criminal investigation into
allegations against six officers of the Rhode Island National Guard ("RING").
The Army contends that the documents are protected from compelled
disclosure under three FOIA exemptions.

2* BACKGROUND
3

During 1988, the Office of the Inspector General of the Army ("IG") received
four anonymous letters implicating six RING officers in alleged misconduct
punishable either by internal disciplinary action or by court-martial under the
Uniform Code of Military Justice. See 10 U.S.C. 801-946 (1985 &
Supp.1992). The Army Vice Chief of Staff ("VCOS") directed the IG to
investigate the charges against two "senior" officers and to submit a report to
the Army officer ("Army command") invested with the authority to determine
whether either disciplinary action or court-martial was warranted. The
allegations against the four junior officers were referred to the National Guard
Bureau.

In order to foster cooperation and curb possible fears of reprisal or harassment,

the IG's office, which has no subpoena power, promises confidentiality--as to
both witness identity and statement content--"to the maximum extent possible,
particularly when it is specifically requested." Department of Army Regulation
("DAR") 20-1, p 1-15a. The IG interviewed twenty-seven witnesses in the
course of the investigation. Three witnesses waived their right to
confidentiality. In December 1989, the IG submitted a report ("IG Report"),
which was "approved" by the Army VCOS. Army regulations provide that
"approval" of an IG report does not connote official Army adoption of its
findings or recommendations. DAR 20-1, p 3-1c. The record reveals no further
Army action on the IG Report.

In due course, the Journal and one of its reporters filed an FOIA request for "all
documents pertaining to the Inspector General's investigation of the Rhode
Island National Guard." See 5 U.S.C. 552 (1990). The Army released a
redacted version of the IG Report, withholding several exhibits in reliance on
four FOIA exemptions. See id. 552(b)(5) (exemption for predecisional intraagency memoranda), (6), (7)(C) (exemptions to safeguard against unwarranted
invasions of privacy), and (7)(D) (exemption for information provided by a
"confidential source"). Following an unsuccessful administrative appeal to the
Army General Counsel, the Journal filed suit in the United States District Court
for the District of Rhode Island to compel disclosure of the unredacted
documents pursuant to 5 U.S.C. 552(a)(4)(B). The parties filed cross-motions
for summary judgment. The district court directed the Army to submit a socalled Vaughn Index, see Vaughn v. Rosen, 484 F.2d 820, 824 (D.C.Cir.1973),
cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974), which lists
the precise grounds for the Army's exemption claims with respect to each
redaction or withheld document, as follows:

A. IG Report
16 Identity of the six RING officers who were targets of the investigation
[Exemptions 6 & 7(C) ];
7 IG's conclusions as to whether each allegation was substantiated or
2,6
unsubstantiated [Exemption 5];
83,5 IG's synopsis of each allegation and findings of fact [Exemptions 5 & 7(D) ];
49 Statements provided by confidential and non-confidential witnesses [Exemptions 5
& 7(D) ];
7 IG's final recommendations regarding further disciplinary action [Exemption 5];
10
B. Full transcript of statement by Nonconfidential source [Exemptions 5 & 7(D) ];
11
12 Internal memoranda and directives between Army VCOS and IG's Office
C-E.
[Exemptions 6, 7(C) & 7(D) ];
F-I. Four anonymous letters [Exemptions 6, 7(C) & 7(D) ];
13
J. Travel vouchers [Exemptions 6, 7(C) & 7(D) ].1
14
15

Following an in camera inspection of the unredacted documents, the district

court granted partial summary judgment and directed the Army to release the
entire IG Report, excepting only the names (and other identifying information)
of the confidential sources (Vaughn Index A3, A4, A5) and the various
intra-agency memoranda (Vaughn Index C-E).2

II
DISCUSSION
16

The FOIA was designed to expose the operations of federal agencies to public
scrutiny without endangering efficient administration, as a means of deterring
the development and application of a body of "secret law." See Department of
Air Force v. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 599, 48 L.Ed.2d 11
(1976);3 NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153, 95 S.Ct. 1504,
1518, 44 L.Ed.2d 29 (1975). As the FOIA presumes public entitlement to
agency information, an agency which would withhold information must
establish its right to an FOIA exemption. See 5 U.S.C. 552(a)(4)(B). The
district court must make a de novo determination as to the validity of the
agency's exemption claim. See Department of Justice v. Reporters Comm. for

Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 1472, 103 L.Ed.2d
774 (1989). FOIA exemptions are construed narrowly, Department of Justice v.
Julian, 486 U.S. 1, 8, 108 S.Ct. 1606, 1611, 100 L.Ed.2d 1 (1988); Curran v.
Department of Justice, 813 F.2d 473, 473-74 (1st Cir.1987), and any "[d]oubts
are customarily to be resolved in favor of openness." Irons v. FBI, 811 F.2d
681, 685 (1st Cir.1987) [hereinafter "Irons I "].
A. Exemption 5
17

With respect to the IG Report's "subjective" evaluation of the evidence against

the two senior RING officers, as well as the IG's recommendations to the Army
VCOS, the Army asserts a claim under Exemption 5 which prohibits compelled
disclosure of "inter-agency or intra-agency memorandums or letters which
would not be available by law to a party other than an agency in litigation with
the agency." 5 U.S.C. 552(b)(5). Agency documents which would not be
obtainable by a private litigant in an action against the agency under normal
discovery rules (e.g., attorney-client, work-product, executive privilege) are
protected from disclosure under Exemption 5. United States v. Weber Aircraft
Corp., 465 U.S. 792, 799, 104 S.Ct. 1488, 1492, 79 L.Ed.2d 814 (1984); EPA
v. Mink, 410 U.S. 73, 86, 93 S.Ct. 827, 835, 35 L.Ed.2d 119 (1973). The Army
relies on the executive or "deliberative process" privilege, see, e.g., id. at 85-86,
93 S.Ct. at 835 (1973) (national security memo on nuclear testing prepared for
President), which is designed to safeguard and promote agency decisionmaking
processes in at least three ways:

18 serves to assure that subordinates within an agency will feel free to provide the
[I]t
decisionmaker with their uninhibited opinions and recommendations without fear of
later being subject to public ridicule or criticism; to protect against premature
disclosure of proposed policies before they have been finally formulated or adopted;
and to protect against confusing the issues and misleading the public by
dissemination of documents suggesting reasons and rationales for a course of action
which were not in fact the ultimate reasons for the agency's action.
19

Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866
(D.C.Cir.1980); see also Schell v. Department of Health and Human Servs.,
843 F.2d 933, 939 (6th Cir.1988). After considering any potential impact
public disclosure might have on the employee-advisor, the agency
decisionmaker, and the public, the court should construe Exemption 5 as
narrowly as is "consistent with efficient Government operation." Mink, 410
U.S. at 89, 93 S.Ct. at 837 (citation omitted). Normally, a document will qualify
for protection under Exemption 5 if it is both "predecisional" and
"deliberative." See Dow Jones & Co. v. Department of Justice, 908 F.2d 1006,

1008-09 (D.C.Cir.1990).
1. "Predecisional Document" Test
20

A document will be considered "predecisional" if the agency can (i) pinpoint

the specific agency decision to which the document correlates, Paisley v. CIA,
712 F.2d 686, 698 (D.C.Cir.1983), (ii) establish that its author prepared the
document for the purpose of assisting the agency official charged with making
the agency decision, Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421
U.S. 168, 184, 95 S.Ct. 1491, 1500, 44 L.Ed.2d 57 (1975); Hopkins v.
Department of Hous. and Urban Dev., 929 F.2d 81, 84 (2d Cir.1991); Coastal
States, 617 F.2d at 866, and (iii) verify that the document "precedes, in
temporal sequence, the 'decision' to which it relates." Senate of Puerto Rico v.
Department of Justice, 823 F.2d 574, 585 (D.C.Cir.1987). The Journal
concedes that the Army VCOS ordered the IG to conduct the preliminary
criminal investigation and that Army command, not the IG, is the final
decisionmaker as to whether there is to be any further disciplinary or
prosecutorial action against the RING officers. See Rules for Court-Martial
306(a) ("Each commander has discretion to dispose of offenses...."); Hopkins,
929 F.2d at 85 (document "predecisional" if its author "lacked any authority to
take final agency action"). Thus, the IG Report would be a predecisional
document.

21

The Journal argues nonetheless that Army command implicitly adopted the IG
Report by its apparent failure to take any action within a reasonable time after
issuance, thereby disentitling the IG's recommendations to "predecisional"
status under Exemption 5. The Journal contends that its "implied adoption"
theory is necessary to prevent an agency's use of its own inaction as an absolute
shield from compelled FOIA disclosure of the results of any internal
investigation.4

22

The "implied adoption" theory is neither supported by the plain language of

Exemption 5 nor the related caselaw,5 and would disserve the recognized aims
of Exemption 5. Express adoption of a predecisional document is a prerequisite
to an agency waiver under Exemption 5. See, e.g., Sears, 421 U.S. at 161, 95
S.Ct. at 1521 (agency must "expressly ... adopt or incorporate [predecisional
document] by reference" in final decision); Ahearn v. United States Army
Materials & Mechanics Research Ctr., 580 F.Supp. 1405, 1407 (D.Mass.1984)
(same). Courts consistently have refused to infer agency adoption based on
mere agency inaction. See, e.g., Brinton v. Department of State, 636 F.2d 600,
605 (D.C.Cir.1980) (age or length of retention of predecisional document
irrelevant to question of agency "adoption"), cert. denied, 452 U.S. 905, 101

S.Ct. 3030, 69 L.Ed.2d 405 (1981); Ashley v. Department of Labor, 589

F.Supp. 901, 908 (D.D.C.1983) (no implied adoption "even if a disputed
document is several years old ... [and] has not yet produced a[n] [anticipated]
final decision").6
23

The proposed "implied adoption" rule would undermine Exemption 5 by

inhibiting the free exchange of views within an agency. Agency advisors
responding to supervisory directives might be less forthcoming with their
advice lest their recommendations be exposed to public scrutiny in the event
final agency action is not promptly taken. See Access Reports v. Department of
Justice, 926 F.2d 1192, 1196 (D.C.Cir.1991) ("At the time of writing the author
could not know whether the decisionmaking process would lead to a clear
decision, establishing the privilege, or fizzle, defeating it. Hedging his bets, he
would be drawn into precisely the caution ... that the exemption seeks to render
unnecessary."); Schell, 843 F.2d at 941 (same).7 Especially is this true where,
as here, one viable agency option is to take no final "action" on the IG's
recommendations. See Rules for Court-Martial 306(c)(1) ("A commander may
decide to take no action on an offense. If charges have been preferred, they
may be dismissed.").

24

Accordingly, we decline to depart from the established view that an agency

may meet its burden of proof under the "predecisional document" test by
demonstrating that the preparer was not the final decisionmaker and that the
contents confirm that the document was originated to facilitate an identifiable
final agency decision. See Mobil Oil Corp. v. EPA, 879 F.2d 698, 703 (9th
Cir.1989) (agency asserting Exemption 5 claim need not demonstrate
differences between contents of deliberative document and final agency
decision).
2. "Deliberative Document" Test

25

A "predecisional" document may still not "fall within the confines of

Exemption 5 if it is not part of the 'deliberative process.' " Formaldehyde Inst.
v. Department of Health and Human Servs., 889 F.2d 1118, 1121 (D.C.1989);
see also Access Reports, 926 F.2d at 1195 (document must "reflect[ ] the giveand-take of the consultative process") (citation omitted). The Army asserts that
two features of the IG Report contributed to the deliberative process: (1)
Vaughn Index A2, A6 and A7, conveying the IG's views as to whether the
allegations were substantiated, as well as the IG's recommendations relating to
any appropriate agency action, and (2) Vaughn Index A3 and A5, which
include the IG's findings of fact and summaries in support of the IG's
recommendations. The district court ruled that:

26 [IG's] investigatory report was not a deliberative policy-making document. The

the
investigation concerned factual allegations against high-ranking officials. This is not
agency policy in the same vein as Mink, supra, where reports were prepared for the
President on the advisability of underground nuclear testing.
27

If the [IG] report concerned broader issues--if it was a report of general

recommendations on disciplining superior officers--the situation would be
different. However, this report is factually specific; it does not reflect "agency
give-and-take--of the deliberative process--by which the decision itself is
made."

28

Providence Journal v. Department of Army, 781 F.Supp. 878, 885 (D.R.I.1991)

(citing Weber Aircraft, 465 U.S. 792, 104 S.Ct. 1488, 79 L.Ed.2d 814 (1984);
Cooper v. Department of Navy, 558 F.2d 274 (5th Cir.1977)) (emphasis added)
(other citations omitted).

29

A predecisional document will qualify as "deliberative" provided it (i) formed

an essential link in a specified consultative process, (ii) "reflect[s] the personal
opinions of the writer rather than the policy of the agency," and (iii) if released,
would "inaccurately reflect or prematurely disclose the views of the agency."
National Wildlife Fed'n v. Forest Serv., 861 F.2d 1114, 1118-19 (9th Cir.1988);
see also SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1204 (D.C.Cir.1991)
(agency must show the decisional "context" of the document within the process
used to reach determinations "like those in issue"); cf. Senate of Puerto Rico,
823 F.2d at 585-86 (agency bears burden of establishing "what deliberative
process is involved, and the role played by the documents in the course of that
process") (citation omitted). Even where expressions of personal opinion
generally render a document "deliberative," however, segregable factual
portions of the document might still be subject to compelled disclosure if, for
example, they are not so "inextricably intertwined" with the deliberative
material that their disclosure would compromise the private remainder of the
documents. See Mink, 410 U.S. at 92, 93 S.Ct. at 838.

a. "Consultative Process "

30
31

We find no authority for the suggested distinction between "reports of general

recommendations on disciplining superior officers" and "factual" reports
prepared in the course of internal disciplinary investigations against particular
individuals. See, e.g., Renegotiation Bd., 421 U.S. at 184, 95 S.Ct. at 1500
(agency deliberations preceding adjudicative decision involving specified
persons implicate Exemption 5); National Wildlife, 861 F.2d at 1118
(Exemption 5 not limited to consultations over official "policy"); Brockway v.

Department of Air Force, 518 F.2d 1184, 1192 (8th Cir.1975) (Exemption 5
extends beyond "policy" memoranda to include all documents not discoverable
in litigation with agency ); see also, e.g., Swisher v. Department of Air Force,
495 F.Supp. 337 (W.D.Mo.1980), aff'd, 660 F.2d 369 (8th Cir.1981) (IG
Report constitutes "deliberative" document); American Fed'n of Gov't
Employees v. Department of Army, 441 F.Supp. 1308 (D.D.C.1977) (same).
Rather, the appropriate judicial inquiry is whether the agency document was
prepared to facilitate and inform a final decision or deliberative function
entrusted to the agency. See, e.g., Russell v. Department of Air Force, 682 F.2d
1045, 1046-48 (D.C.Cir.1982) (editorial review process used by Office of Air
Force History to prepare historical document on use of Agent Orange during
Vietnam war constitutes deliberative agency function).
32

As Army command controls the agency decision whether Army personnel are
to be disciplined for alleged misconduct, or prosecuted under the Uniform Code
of Military Justice for alleged criminal activity, its deliberative task is no less
an agency function than the formulation or promulgation of agency disciplinary
policy. As with other discretionary prosecutorial decisions, many
considerations contribute to the final determination by Army command,
including the rank of the investigated officers, the seriousness of the
allegations, the overall reliability of the evidence, the relative appropriateness
of the available forms of remediation, and any special mitigating circumstances.
Cf. Senate of Puerto Rico, 823 F.2d at 585 n. 38 ("[T]he process leading to a
decision to initiate, or forego, prosecution is squarely within the scope of the
privilege...."). It is not surprising, therefore, that the Army has in place a
confidential consultative process to ensure maximum input from the chain of
command concerning the need for further action. See Russell, 682 F.2d at 1048
(agency has "much at stake" in "candid consideration" where it must be
prepared to "stand by its [final decision] in the public forum, and in light of the
possibility of ... litigation ... perhaps in the judicial forum as well").

b. "Essential" to Consultative Process

33
34

Neither can we agree that the primary function of the IG Report was to convey
raw evidence or data discovered during the investigation and that the IG's
recommendations were peripheral or gratuitous. Schell, 843 F.2d at 940 (court
must determine whether document was "essential" or merely a "peripheral item
which just 'beefs up' a position with cumulative materials") (citation omitted).
We think it is clear that the recommendations made by the IG--the agency
official with the investigative expertise and the greatest familiarity with the
first-hand evidence--are highly important to Army command even though it is
not obligated in the final analysis to credit the IG's recommendations. See, e.g.,

Hopkins, 929 F.2d at 85 (HUD inspector reports contain "recommendations to

higher officials that various agency actions should be taken."); Formaldehyde,
889 F.2d at 1125 (reliance on temporary consultants' opinion often necessary);
Schell, 843 F.2d at 942 ("It is the free flow of advice, rather than the value of
any particular piece of information, that Exemption 5 seeks to protect."). We
cannot say that the IG's recommendations were in any sense either merely
cumulative or peripheral. We conclude, at a minimum, therefore, that a
significant portion of the IG Report (Vaughn Index A2, A6, and A7) was
"essential" to the consultative process within the agency.
c. Premature Disclosure of IG's "Personal Opinions"
35
36

Nor is the chilling effect on candid advice from agency subordinates, which
Exemption 5 was designed to mitigate, significantly diminished merely by
reason of the fact that the subordinates' recommendations relate to the
appropriateness of disciplinary action against particular individuals. A
subordinate agency advisor may have more cause for concern about public
disclosure of disciplinary recommendations involving high-level agency
officials, since there may be a real or perceived risk of retaliation from a
vindictive official who is the target of the advisor's findings or
recommendations. Cf. Cooper, 558 F.2d at 277 ("[S]ervice people are human,
too: they fear disciplinary action, work and hope for promotion, possess
loyalties and ties of friendship to people and organizations, [and] dislike
speculating to the derogation of others' reputations....").

37

Army command is not required to accept the IG's recommendations. Indeed,

command already may have exercised its prerogative to take no further action
on these allegations, for reasons entirely unrelated to the grounds espoused in
the IG Report. Accordingly, since public release of the recommendatory
sections in the IG Report would either "inaccurately reflect or prematurely
disclose the views of the agency," the Army may not be required to reveal any
information referenced in Vaughn Index A2, A6, or A7.8

d. "Inextricably Intertwined" Fact-Oriented Material

38
39

The Army contends that Vaughn Index A3 and A5, conveying the IG's
conclusions as to the facts revealed by the evidence discovered during the
investigation, should be exempt because the conclusions are so "inextricably
intertwined" with the IG's mental processes that their disclosure necessarily
would reveal the substance of the IG's recommendations. See, e.g., Quarles v.
Department of Navy, 893 F.2d 390, 392-93 (D.C.Cir.1990) (cost estimates
derive from "complex set of judgments" by preparers); Russell, 682 F.2d at

1048 (historical facts essentially "interpretive" choices by reviewer); Swisher,

495 F.Supp. at 340 (IG's investigative conclusions exempt); American Fed'n,
441 F.Supp. at 1313 (IG's preliminary conclusions "play an integral part in the
consultative process"). The district court held that the IG's evidentiary
conclusions and rationale are not exempt from disclosure since "[t]he mere act
of selecting facts for inclusion in a report does not make that report
deliberative," and "[s]imple judgment exercised in preparing the Report of
Investigation does not equal deliberation." Providence Journal, 781 F.Supp. at
885.9
40

The Exemption 5 analysis employs a rough-hewn dichotomy between opinion

and fact: whereas the purely recommendatory provisions in a deliberative
predecisional document are exempt from compelled disclosure, "memoranda
consisting only of compiled factual material or purely factual material contained
in deliberative memoranda and severable from its context would generally be
available for discovery...." Mink, 410 U.S. at 87-88, 93 S.Ct. at 836 (emphasis
added); see also Hopkins, 929 F.2d at 85; Russell, 682 F.2d at 1048; Mead Data
Cent., Inc. v. Department of Air Force, 566 F.2d 242, 256 (D.C.Cir.1977). As
the dichotomy between opinion and fact is not clear-cut, courts generally follow
a "functional" approach in an attempt to determine "whether production of the
contested document [or section] would be 'injurious to the consultative
functions of government....' " Mink, 410 U.S. at 87, 93 S.Ct. at 836 (citing
Kaiser Aluminum & Chem. Corp. v. United States, 157 F.Supp. 939, 946, 141
Ct.Cl. 38 (1958)).

41 when requested material is found to be factual, the courts have held it exempt
Even
where they were convinced that disclosure "would expose an agency's
decisionmaking process in such a way as to discourage candid discussion within the
agency and thereby undermine the agency's ability to perform its functions."
42

Quarles, 893 F.2d at 392 (citation omitted); see also Access Reports, 926 F.2d
at 1195 (central inquiry is whether disclosure would "discourage candid
discussion within the agency.") (citation omitted); Formaldehyde, 889 F.2d at
1123 (opinion-fact distinction is subordinate to inquiry concerning "effect of
the materials' release" on deliberative process). Factual material should be
considered segregable if it is not so "inextricably intertwined" with the
deliberative material that its disclosure would "compromise the confidentiality
of deliberative information that is entitled to protection." Mink, 410 U.S. at 92,
93 S.Ct. at 838; see Hopkins, 929 F.2d at 85.

43

While mere selection of the evidence deemed material to an agency decision

may not implicate Exemption 5,10 disclosure of the IG's findings of fact

necessarily would reveal the opinion of the IG on the credibility and probity of
the evidence relating to each allegation. Findings of fact arrived at in the
personnel management context reflect a significant degree of subjectivity. Our
review of these Vaughn-indexed documents discloses instances of conflicting
and inconsistent witness statements. The findings of fact in the IG Report
necessarily were premised on an assessment and resolution of the relative
credibility of these statements, as well as subjective judgments as to the probity
of other evidence developed during the investigation. Cf. Playboy Enters., Inc.
v. Department of Justice, 677 F.2d 931, 935 (D.C.Cir.1982) (plaintiff did not
"wish to probe the process whereby the task force assigned reliability or weight
to specific evidence"). Revelation of the IG's findings of fact undoubtedly
would divulge the substance of the related recommendatory sections with
which they comport.11 Accordingly, as we conclude that the recommendatory
provisions in the IG Report are exempt from disclosure, the Army cannot be
compelled to disclose the IG's findings of fact in Vaughn Index A3 and A5.
B. Exemption 7(D)
44

The Army claims that the statements provided by twenty-eight (twenty-four

solicited witnesses and four anonymous informants) of its thirty-one sources
(Vaughn Index A4, F-I) are nonetheless protected under Exemption 7(D),
which shields from compelled disclosure records and information compiled for
law enforcement purposes,

but only to the extent that the[ir] production ...

45
could reasonably be expected to disclose the identity of a confidential source 12 ...
46
47 in the case of a record or information compiled by criminal law enforcement
and,
authority in the course of a criminal investigation ... information furnished by a
confidential source. (Emphasis added.)
48

Exemption 7 was intended to avert the "drying-up" of sources of information

necessary to conduct criminal investigations. Irons v. FBI, 880 F.2d 1446,
1450-51 (1st Cir.1989) [hereinafter "Irons II "]. An agency claiming the right to
decline disclosure on the basis of Exemption 7(D) must demonstrate that the
particular document was compiled for "law enforcement purposes" from
information provided by a "confidential source." See Curran, 813 F.2d at 47374 (unlike certain other FOIA exemptions, once both elements of a 7(D)
exemption are established, the court should not engage in a balancing of
interests); Brant Constr. Co. v. EPA, 778 F.2d 1258, 1262-63 (7th Cir.1985)
(same). The Journal challenges only the "confidentiality" of the Army's
sources.13

49

Document confidentiality depends not on the contents but on the terms and
circumstances under which the information was acquired by the agency. See
Irons I, 811 F.2d at 685; Johnson v. Department of Justice, 739 F.2d 1514, 1517
(10th Cir.1984); see also Irons II, 880 F.2d at 1448 ("confidential" does not
mean "secret" information, but information "provided in confidence"). A
confidential source is one who " 'provide[s] information under an express
assurance of confidentiality or in circumstances from which such an assurance
could be reasonably inferred.' " Id. at 1447 (quoting S.Con.Rep. No. 1200, 93d
Cong., 2d Sess. 13 (1974), U.S.Code Cong. & Admin.News 1974, 6267, 6285,
6291) (citation omitted). We discuss the two types of source statements
requested by the Journal: (1) solicited statements from confidential sources
(Vaughn Index A4), and (2) unsolicited statements from confidential sources
(Vaughn Index F-I).

50

1. Statements Solicited from Confidential Sources (Vaughn Index A4)

51

The district court found that twenty-four of the twenty-seven individuals from
whom information was solicited by the IG qualified as "confidential" sources,
since they accepted express agency assurances of confidentiality; hence their
identities were protected from disclosure under the first clause of Exemption
7(D). The district court nevertheless held that the contents of each statement
solicited from these confidential sources must be disclosed because the
information was not "furnished only by the confidential source." See
Providence Journal, 781 F.Supp. at 886-87. The court did not identify the
nonconfidential sources to which it made reference, but presumably meant to
include the anonymous authors of the four unsolicited letters which triggered
the internal investigation, as well as the three sources who expressly declined
assurances of confidentiality.

52

Although we agree with the district court that the identities of the twenty-four
confidential sources are exempt from disclosure under the first clause of
Exemption 7(D), we cannot agree that the contents of their statements are not
shielded from disclosure under the second clause. The district court ruling
relied entirely on the word "only"--appearing in the second clause of Exemption
7(D)--which Congress deleted in 1986 for the explicit purpose of clarifying the
broad policy goals served by the second clause.14 Irons I, 811 F.2d at 687 ("
'There should be no misunderstanding that ... [the 1986 modifications] are
intended to broaden the reach of this exemption and to ease considerably a
Federal law enforcement agency's burden in invoking it.' ") (citing 199
Cong.Rec. S16504). Under amended Exemption 7(D), an agency may not be
ordered to disclose information from a confidential source even if
nonconfidential sources have provided the agency with the identical

information. 15
53

The Journal nevertheless urges affirmance of the district court ruling, on the
ground that the Army should be required to prove that each individual witness
either (1) initiated the request for confidentiality, or (2) articulated a legitimate
reason for invoking confidentiality respecting statement content after the IG
made the initial tender of confidentiality. Absent some such prophylactic rule,
the Journal argues, a federal agency could insulate itself from legitimate FOIA
disclosure requests merely by offering confidentiality to all sources, whether or
not required or requested by the source.

54

The Journal cites no authority for its proposed rule, and sound policy
considerations counsel against it. Muzzling law enforcement agencies in order
to deter tenders of confidentiality likely would risk "drying-up" the flow of
information from many wary witnesses with valuable information, especially
sources who might reasonably expect that an agency would extend an offer of
confidentiality if it were an available option. Moreover, in circumstances where
law enforcement officials solicit information pertaining to a criminal
investigation, see supra note 13, absent evidence to the contrary the courts have
inferred agency assurances of confidentiality notwithstanding agency silence.
See, e.g., Dow Jones, 908 F.2d at 1010.

55

A requirement that agency assurances of confidentiality be subjected to post

hoc judicial evaluation as proposed by the Journal promises more mischief than
benefit. The task of evaluating the "legitimacy" of confidentiality claims and
assurances on a witness-by-witness basis would not only be onerous but often
fruitless. It would be rare that a source would be unable to advance some
colorable basis for a confidentiality claim, given the subjective nature of
witness concerns about possible retaliation. Perhaps more importantly, mere
awareness by potential sources that the agency's assurances of "content"
confidentiality would be subject to second-guessing by the courts (advice with
which fairness would seem to require that an agency provide its potential
sources in advance) frequently would mean that only the unwary would be
inclined to provide information in an internal criminal investigation.

56

We think it more fair and efficient that law enforcement agencies be allowed to
continue to extend assurances of confidentiality to their sources, with the advice
that confidentiality may be disclaimed. In this manner, unfettered agency
control and manipulation of Exemption 7(D) protections can be minimized
without jeopardizing valuable agency sources. As the procedure utilized by the
Army met this standard, its twenty-four solicited statements are exempt from
FOIA disclosure in their entirety under Exemption 7(D).

57

2. Unsolicited Anonymous Sources (Vaughn Index F-I)

58

The district court found that the four anonymous letters were not protected from
compelled disclosure by Exemption 7(D) as there was no evidence that the
letters were sent under implied assurances of confidentiality. The court
identified two reasons for its ruling: (1) the letters may have been written by
non-military personnel unfamiliar with the "obscure Army regulations"
assuring confidentiality, and (2) copies of the letters were made available to
other "disciplinary" officials, including Army generals and the Governor.
Providence Journal, 781 F.Supp. at 887.

59

Given the obvious import of the 1986 amendments to Exemption 7(D), see
supra note 14, and the consequent easing of the law enforcement agency's
burden of proof, we think the Tenth Circuit has articulated a sound rationale for
determining whether the unsolicited information from these anonymous
sources was provided under an implied assumption of confidentiality. See
Johnson, 739 F.2d at 1517-18 (summarizing three-way circuit split and citing
cases).

60 people would assume that the information they give to a criminal law
Most
enforcement official during a criminal investigation will be kept confidential.
However, situations may arise where it is unreasonable to make this assumption, and
in the face of evidence to this effect in the record, a district court will not be
precluded from so finding.
61

Id. at 1518.

62

Generally speaking, the circumstances in which these anonymous letters were

submitted comport with a reasonable assumption of confidentiality on the part
of the writers. Thus,

63 is unrealistic to assume that a majority of persons reporting to an agency what

[i]t
they believe to be illegal or improper acts are legally sophisticated. To the contrary,
it is much more likely that they would not know the boundaries of the FOIA
exemptions and, therefore, would not include in their initial communication to the
agency an express request for confidentiality. They may be frightened, angry, or
confused, and their immediate concerns do not include creating an evidentiary record
to prove an assurance of confidentiality in anticipation of a potential FOIA request.
64

In cases involving unsolicited information from ostensibly confidential sources,

the court should look to all factors ... [to determine] whether a request for
confidentiality is implicit, i.e., that in light of the information and surrounding

circumstances, the communication in all likelihood would not have been made
if confidentiality had not been assured.
65

Brant, 778 F.2d at 1263-64 (citation omitted) (emphasis in original)

(distinguishing between confidentiality standards applicable to solicited and
unsolicited sources). At least in circumstances where the allegations might lead
to court-martial proceedings, it is reasonable to infer, absent contrary evidence,
that an anonymous source reasonably expected complete confidentiality.
Evidence that might arguably support a contrary inference in the present case
would be as follows: (1) the writers' decisions not to sign their names; (2) their
expressed intention to provide copies to non-agency officials; and (3) any other
intrinsic manifestations in the letters which might reflect their lack of concern
about public dissemination of their letters.

66

Unlike Brant, which involved an identified unsolicited source, see id. at 126061, in the present case the writers redacted their names. The Journal contends
that the redaction of their names demonstrates the writers' realization that the
letters might be publicized, and their satisfaction that they had successfully
excised all forms of identifying material. On the contrary, we believe that their
determination to remain anonymous provides further reason for indulging the
customary presumption that the information was provided under an implicit
assurance of confidentiality.

67

Exemption 7(D) contains two independent safeguards against content

disclosure. Under the first clause, there is to be no disclosure of information
which would reveal the identity of the source. Under the much broader second
clause, however, there is to be no disclosure of information offered in
confidence, without regard to whether it would divulge the identity of the
source. See Irons II, 880 F.2d at 1452 (" '[I]nformation furnished' exemption
[applies] irrespective of subsequent public identification of the source....");
Shaw v. FBI, 749 F.2d 58, 62 (D.C.Cir.1984) (unless second clause of
Exemption 7(D) protects information beyond that which would reveal the
identity of the source, it is redundant); Johnson, 739 F.2d at 1517 (same).

68

The congressional purpose underlying the blanket exemption in the second

clause is readily apparent. Although even a known source may not want the
substance of the information made public, sources who choose to clothe
themselves in anonymity most likely do so because they do "not want to have to
rely upon the agency's or the courts' judgment that disclosure will not reveal
[their] identity (which is of course the basis for a separate exemption--the first
clause of Exemption 7(D) ...)." Shaw, 749 F.2d at 61. Indeed, without knowing
the identity of the source, and any other potential clues to the source's identity

which the details of the allegations might afford the target, often the court
would be hard put to sift all identifying information from an anonymous letter.
Over the long term, uncertainty about the sureness and consistency of this sort
of post hoc judicial determination could affect the flow of important
information from anonymous sources necessary to effective law enforcement.
Thus, if Exemption 7(D), clause 2, would preclude disclosure of statements
solicited from confidential sources even though their names are redacted, it is
not clear to us that the writer's redaction of his or her name from an unsolicited
letter, without more, gainsays the reasonableness of the normal presumption
that the writer of the anonymous letter anticipated the maximum level of
confidentiality which would be available to other confidential sources.
69

Second, we can ascribe no controlling significance to the fact that the authors of
three of the anonymous letters (Vaughn Index F, G, H) expressed their
intention to provide copies to non-agency officials, such as the Governor of
Rhode Island, who is vested with concurrent authority to pursue disciplinary
action against RING personnel. See R.I.Gen.Laws 30-2-1 (1982) (prescribing
Governor's statutory authority as commander-in-chief of RING). Assuming the
writers carried through with their stated intention to send duplicate letters, there
is nothing in the record to suggest that the writers could not reasonably have
expected comparable assurances of confidentiality from these non-agency
officials, or that these officials dealt with the letters in a manner which might
arguably render the reasonableness of the writers' expectations suspect. See
Brant, 778 F.2d at 1264 (simultaneous submission of unsolicited letter to
federal and state enforcement agencies did not undermine implied assurance of
confidentiality, where "nothing in the record indicates ... that these [other]
agencies did not treat the letter as confidential").

70

Finally, two letters (Vaughn Index F, I) contain explicit representations that

the writers feared "reprisal" or "retribution" (e.g., loss of employment) in the
event their statements were disclosed. See id. (court ought not dismiss as "a
flight of fancy" an expressed fear of retaliation in unsolicited letter). Given the
core function of Exemption 7(D), we believe that the flow of unsolicited
information should not be jeopardized by risking exposure of the identities of
sources through disclosure of the contents of their anonymous communications.
We therefore conclude that all twenty-eight confidential source statements are
protected from compelled disclosure by Exemption 7(D). The three remaining
source statements, however, are not "confidential," and therefore are not
protected from compelled disclosure under Exemption 7(D).16

C. Exemption 7(C)

71

The three "nonconfidential" source statements (Vaughn Index A4) include

explicit references to the names of the two senior RING officers. The district
court did not distinguish between substantiated allegations and unsubstantiated
allegations, but ordered disclosure of the names of the two senior RING
officers because (1) as "high-ranking" agency officials with substantial
supervisory authority, the officers enjoyed a diminished privacy interest, (2)
the allegations of criminal conduct implicated their official duties, which would
"shed light" on RING performance, and (3) there is a countervailing public
interest in monitoring RING performance, both as concerns the conduct of the
target officers and the adequacy and comprehensiveness of the IG's internal
investigation. Providence Journal, 781 F.Supp. at 882-84. The Army counters
that it may withhold these officers' names under Exemption 7(C), 17 which
protects from compelled disclosure "records or information compiled for law
enforcement purposes, but only to the extent that the[ir] production ... could
reasonably be expected to constitute an unwarranted invasion of personal
privacy." (Emphasis added.)18

72

The Army did not appeal the district court ruling compelling disclosure of the
three nonconfidential source statements relating to the substantiated allegations,
perhaps because the Army understood that "all or much of this material may be
independently protected by exemptions 5 or 7(D)." Brief for Appellant at 20 n.
16 (emphasis added). As neither Exemption 5 nor Exemption 7(D) is availing,
however, the Army must disclose, in their entirety, the statements of the three
nonconfidential sources which relate to substantiated allegations.19 We confine
the remainder of our discussion to the nonconfidential source statements
relating to the "unsubstantiated " allegations against the two senior RING
officers.

73

Under our Exemption 7(C) precedents, in order to determine whether disclosure

might reasonably be expected to work an "unwarranted" invasion of privacy the
court is required to balance the privacy interests of the targets of the criminal
investigation against any public interest in the disclosure of their identities. See
New England Apple Council v. Donovan, 725 F.2d 139, 143 (1st Cir.1984);
Sands v. Murphy, 633 F.2d 968, 971 (1st Cir.1980).

74

A private individual who becomes the target of a law enforcement agency

investigation, and whose alleged criminal conduct in no way reflects on the law
enforcement agency's performance, has a significant interest in preventing
premature public disclosure of his or her identity under Exemption 7(C). See
Reporters Comm., 489 U.S. at 765, 773, 109 S.Ct. at 1477, 1481 (information
concerning private citizens "reveals little or nothing about an agency's own

conduct"); Nadler v. Department of Justice, 955 F.2d 1479, 1490 (11th

Cir.1992) ("Enabling the public to learn about the conduct of private citizens is
not the type of public interest the FOIA was intended to serve."); Hopkins, 929
F.2d at 88 (same). On the other hand, a federal government employee
investigated for criminal misfeasance relating to the performance of official
duties generally possesses a diminished privacy interest. See Stern v. FBI, 737
F.2d 84, 92 (D.C.Cir.1984) (high-level FBI official). It is equally clear,
however, that an internal criminal investigation would not invariably trigger
FOIA disclosure of the identity of the targeted government employee:
75 who serves his state or nation as a career public servant is not thereby stripped
'One
of every vestige of personal privacy, even with respect to the discharge of his official
duties. Public identification ... could conceivably subject them to harassment and
annoyance in the conduct of their official duties and in their private lives.'
76

New England Apple, 725 F.2d at 142 (citation omitted); see also Fund for
Constitutional Gov't v. National Archives & Records Serv., 656 F.2d 856, 864
(D.C.Cir.1981). Therefore, we must determine appropriate guidelines for
weighing the privacy interest remaining to these RING officers against the
public interest in the disclosure of their identities.

77

Public identification of the "targets of law enforcement investigations can

subject those identified to embarrassment and potentially more serious
reputational harm." SafeCard, 926 F.2d at 1205 (citations omitted). In virtually
all cases, however, disclosure of the information adduced in an agency
investigation serves the public interest at least to the extent that it sheds light on
the agency's performance of its official duties. Cf. Rose, 425 U.S. at 367-69, 96
S.Ct. at 1601-02 (noting public interest in administration of internal discipline
as it reflects on military preparedness); see also New England Apple, 725 F.2d
at 144 ("The public has a significant, enduring interest in remaining informed
about actions taken by public officials in the course of their official duties.").
The higher the rank of the public official alleged to have engaged in
misconduct, the greater the legitimate public interest in disclosure is likely to
be. Stern, 737 F.2d at 92, 94; see also Hale v. Department of Justice, 973 F.2d
894, 901 n. 8 (10th Cir.1992) (noting that governmental misconduct by "high
ranking officers" may tip balance in favor of civil or public interest).

78

In the case of a low ranking agency official or employee, a rebuttable

presumption may arise against compelled disclosure of allegations of
misconduct which the agency investigation determines to have been
"unsubstantiated," but the case becomes more complicated if the target is an
agency official of greater authority or importance. In particular, there may be a

greater public interest in disclosure where the allegation--although determined

unsubstantiated by the agency--may nevertheless be true, and may pose a
serious threat to the public interest. Or an "unsubstantiated" allegation may bear
upon a claim, supported by independent evidence, that the investigating agency
actively engaged in the concealment of the target official's misconduct or
otherwise failed to perform its mission. These considerations lend themselves to
no mechanical rule of disclosure or non-disclosure. Nor, on the other side of the
Exemption 7(C) equation, can we prescribe a formula for measuring the impact
of the privacy invasion resulting from disclosure. These and other relevant
variables must be determined and weighed in light of the particular
circumstances in each case.
79

With these general considerations in mind, we turn to the particular facts before
us. It is true, as the Army suggests, that the Journal neither alleged nor
attempted to prove a cover-up in the IG's investigation. At the same time, we
think the invasion of privacy wrought by disclosure in this case is unusually
slight. The Army already has disclosed one of the two unsubstantiated
allegations and the other is minimally invasive of privacy, containing as it does
a rather blurred suggestion of possible impropriety. The unsubstantiated
allegations are not of such an intimate nature that the disclosure of the target's
identity normally would be "unwarranted" even though the information might
tangentially implicate the target's performance of official duties, or the zeal or
competence of the investigators. See, e.g., New England Apple, 725 F.2d at
143; see also Hunt v. FBI, 972 F.2d 286, 288-89 (9th Cir.1992). Under all the
circumstances, and eschewing the per se rules proposed by the parties, on
balance we believe the Exemption 7(C) analysis favors disclosure.

III
CONCLUSION
80

The Army voluntarily disclosed redacted versions of the statements of its

nonconfidential sources, redacting more than the officers' names in some
instances. See Vaughn Index A, p. 11, p 8. The Army shall be required to
release an unredacted version of the source statements appearing in the IG
Report at p. 8, p 17; p. 11, p 8; p. 14, p 10; p. 15, p 3; and p. 17, p 5. The Army
nonetheless may redact any reference to persons (other than the two senior
RING officers) who acted as confidential sources and are identified as such in
any nonconfidential source statement. See, e.g., Vaughn Index A, p. 11, p 8.

81

The district court judgment is modified in accordance herewith, and affirmed as

modified; no costs.

Of the Eleventh Circuit, sitting by designation

Throughout the opinion, relevant portions of the IG Report and exhibits are
identified by reference to their Vaughn Index numbers. The Army did not
appeal from the order to disclose, in their entirety, Vaughn Index B and J. See
Providence Journal Co. v. Department of Army, 781 F.Supp. 878, 888-92
(D.R.I.1991) (Appendix A)

The Journal does not challenge the district court ruling relating to Vaughn
Index C-E

Throughout the opinion, all citation references to agencies or departments are

to United States agencies or departments, unless otherwise indicated

The Journal suggests also that the Army's earlier "approval" of the IG Report,
coupled with the apparent inaction, signified official Army "adoption" of the IG
Report. Army Regulations provide, however, that "[w]hen an IG report is
approved, conclusions and recommendations contained in the report do not
constitute the directing authority's decision nor an explanation of the decision
unless specifically adopted as such in writing by the directing authority." DAR
20-1, p 3-1c (emphasis added); cf. Niemeier v. Watergate Special Prosecution
Force, 565 F.2d 967, 973 (7th Cir.1977) (adoption requires something more
than mere quotation, such as an affirmative manifestation that the predecisional
document's conclusions are deemed "consistent" with final agency decision)

The one decision cited in support of the theory, Washington Post Co. v.
Department of Air Force, 617 F.Supp. 602, 605 (D.D.C.1985), is inapposite, as
it involved an express agency adoption of an IG report

The Army argues that the Journal cannot assert its "implied adoption" claim
because it failed to request disclosure of documents describing any final agency
action following "approval" of the IG Report. In our view, however, the initial
Journal request, which sought "all documents pertaining to the Inspector
General's investigation of the Rhode Island National Guard," was broad enough
to include any such written record of final action by the Army, if one exists. See
McGehee v. CIA, 697 F.2d 1095, 1102-03 (D.C.Cir.1983) (once agency
responds fully to FOIA requests, no continuing duty to disclose documents
generated later; in general, prior to full compliance, there is an ongoing
obligation to update disclosure). For present purposes, we assume that no
document evidencing final Army action has yet issued

In contrast, express agency adoption represents a significant vindication of a

subordinate advisor's recommendation, posing little risk of retaliation or public

embarrassment. See, e.g., SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1204
(D.C.Cir.1991); see also Washington Post, 617 F.Supp. at 605
8

None of the cases relied on by the Journal, or by the district court, supports a
contrary result. Weber Aircraft, 465 U.S. at 796, 104 S.Ct. at 1491 (Air Force
waived Exemption 5 claim by voluntarily releasing entire record of collateral
investigation of air crash); Playboy Enters., Inc. v. Department of Justice, 677
F.2d 931, 935 (D.C.Cir.1982) (plaintiff sought disclosure of contents of witness
statements only, but did not " 'wish to probe the process whereby the task force
assigned reliability or weight to specific evidence' "); Cooper, 558 F.2d at 279
(Navy investigative report of helicopter crash, which was primarily "factoriented," with the expression of an opinion "incidental," not entitled to blanket
exemption; on remand, however, district court must scrutinize each section of
report to determine if its disclosure would "safeguard the consultative or
decision-making process"); Brockway, 518 F.2d at 1185 (plaintiff sought only
witness statements concerning air crash (not findings of fact)); Project on
Military Procurement v. Department of Navy, 710 F.Supp. 362, 367
(D.D.C.1989) (plaintiff entitled to waiver of fee on FOIA request; court does
not reach merits of Navy's potential Exemption 5 claim, nor plaintiff's
entitlement to disclosure); Washington Post Co., 617 F.Supp. at 605-07 (Air
Force "waived" right to prevent disclosure of most fact-oriented portions of
document either by express adoption of related recommendatory sections or by
voluntary disclosure of summaries of more detailed fact-oriented sections;
government failed to meet burden by providing "empirical support" that
remaining fact-oriented sections were "inextricably intertwined" with exempted
deliberative material)
Adams v. United States, 686 F.Supp. 417 (S.D.N.Y.1988), is the only case the
Journal cites which is at all apposite. However, Adams stands on a mistaken
premise. The Adams court held that the IG's findings of fact were irrelevant to
the deliberative process because the commanding officer was free to disregard
the findings in making the final disciplinary decision, and that Exemption 5
applies "only insofar as [ ] disclosure might tend to expose the decisionmaker's
deliberative process." Id. at 419-20 (citation omitted) (emphasis in original).
Exemption 5 protects the deliberative process, which necessarily involves at
least two parties: the advisor and the decisionmaker. The fact that the
decisionmaker may choose to disregard the IG's advisory findings does not alter
the fact that (1) the IG, who had first-hand exposure to the witnesses and the
evidence, is in the optimum position to make informed findings of fact; and (2)
an informed final decision requires the IG's candid assessment of witness
demeanor and credibility.

Even though the Army raised the issue before the district court, see Providence
Journal, 781 F.Supp. at 889 (Appendix A), on appeal it apparently disclaims
any contention that Vaughn Index A4, objectively recounting the contents of
the statements provided by the 27 solicited sources, is entitled to protection
from FOIA disclosure under Exemption 5. See Playboy Enters., 677 F.2d at 935
(mere selection of facts for inclusion in report not "deliberative")

10

In some cases, a predecisional distillation of material facts from a larger public

record may reveal the final decisionmaker's mental processes by enabling
public scrutiny of the information not relied on in arriving at the final agency
decision. See, e.g., Russell, 682 F.2d at 1049 (comparison with final agency
action would reveal what the agency thought were insignificant preliminary
findings of fact); Montrose Chemical Corp. v. Train, 491 F.2d 63, 67-68
(D.C.Cir.1974) (same). But absent any documentation evidencing a final
agency decision, we need not address this issue

11

For instance, disclosure of a finding that a high-ranking officer did or did not
engage in particular conduct reveals the IG's judgment as to whether the
allegation was substantiated by the evidence. Were such findings subject to
compelled disclosure in these circumstances, forthright findings of fact by
agency subordinates, based on disputed evidence, would be harder to come by.
See American Fed'n, 441 F.Supp. at 1313 (chilling effects of prospective
disclosure are greatest in the case of an internal criminal investigation of
agency personnel)

12

The Journal seeks disclosure of the contents of the statements only, not the
witnesses' identities

13

The Journal does not dispute that the requested documents satisfy the threshold
criterion under Exemption 7(D), namely that the records were compiled by a
criminal law enforcement authority in the course of a criminal investigation.
See Curran, 813 F.2d at 475; Shaw v. FBI, 749 F.2d 58, 63 (D.C.Cir.1984)
(agency must "identify ... a particular individual or a particular incident as the
object of its investigation and ... the connection between that individual or
incident and a ... violation of federal law."); cf. Stern v. FBI, 737 F.2d 84, 89
(D.C.Cir.1984) (mere internal disciplinary proceeding not sufficient for
Exemption 7(D); investigation must be targeted at specific person for actions
punishable either by criminal or civil sanctions). For Exemption 7 purposes,
Inspectors General are normally deemed "criminal law enforcement" agencies,
Brant, 778 F.2d at 1265 (citing New England Apple Council v. Donovan, 725
F.2d 139 (1st Cir.1984)) (noting "the substantial similarities between the
activities of the FBI and OIGs [Offices of Inspectors General]"). These
allegations exposed the RING officers to possible court-martial

14

Prior to the 1986 amendment, 552(b)(7)(D) exempted

investigatory records compiled for law enforcement purposes, but only to the
extent that the production of such records would ... disclose the identity of a
confidential source and, in the case of a record compiled by a criminal law
enforcement authority in the course of a criminal investigation, or by an agency
conducting a lawful national security intelligence investigation, confidential
information furnished only by the confidential source.
(Emphasis added.) The 1986 amendment eased the government's burden of
proof substantially. For the phrase "would ... disclose," it substituted the phrase
"could reasonably be expected to disclose," and it deleted the word "only" in
the final clause. See supra p. 563; see also Irons I, 811 F.2d at 687.

15

The Journal acknowledges that the district court mistakenly relied on the
unamended version of Exemption 7(D). It concedes as well that the district
court's finding that these twenty-four witnesses did receive express assurances
of confidentiality is supportable

16

As the Army concedes, the statements provided by the three remaining sources,
who expressly waived the IG's assurances of confidentiality, would in all
likelihood not be protected from disclosure under Exemption 7(D). Exemption
7(D) itself does not indicate what effect a witness's waiver of assurances of
confidentiality might have on the agency's power to shield the statement from
FOIA disclosure. Nevertheless, since uncertainty about the precise scope of a
waiver might "dry up" law enforcement sources, we consistently have refused
to find an implied waiver where the subjective intent of the informant to
relinquish confidentiality can be inferred only from ambiguous conduct, often
occurring long after the informant provided the confidential information. See
Irons I, 811 F.2d at 686; see also Parker v. Department of Justice, 934 F.2d 375,
380-81 (D.C.Cir.1991). Although we need not resolve the question, recognition
of an express waiver would not appear to pose any comparable risk of chilling
"the flow of information to the law enforcement agency," Irons II, 880 F.2d at
1449, since a source with sole control of the agency's right to disseminate the
information would not be reluctant to provide the information

17

We need not decide whether the four junior RING officers' names are protected
from disclosure under Exemption 7(C). The four anonymous letters, which are
exempt from disclosure in their entirety under Exemption 7(D), were the only
sources of information about these officers. Furthermore, the allegations
against these four officers were not referred to the IG's Office for investigation,
and form no part of the IG report

18

Exemption 6, the alternative "privacy" exemption asserted by the Army,

protects "personnel and medical files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal privacy."
(Emphasis added.) Exemption 6 affords the Army far less protection against
compelled disclosure than does Exemption 7(C). Exemption 6 requires proof
that the requested documents come within the narrow definition of "similar
files," that the invasion of privacy would be "clearly unwarranted," and that
disclosure would in fact constitute an invasion of privacy. Reporters Comm.,
489 U.S. at 756, 109 S.Ct. at 1472; Nadler v. Department of Justice, 955 F.2d
1479, 1488 (11th Cir.1992) (phrase "reasonably expected" represents relaxation
of standard from "would constitute," making it easier for agency to invoke
Exemption 7(C) than Exemption 6). For these reasons, we confine our
discussion to Exemption 7(C)
19

Even if the Army had pursued this line of argument on appeal, it is unlikely that
the scope of FOIA protection would be broadened. To the extent that the RING
officers lacked a sufficient privacy interest in witness statements relating to
unsubstantiated allegations, their privacy interest would surely diminish as to
substantiated charges in which there presumably would be a heightened public
interest