Herman Benjamin Ferguson v. Federal Bureau of Investigation, 83 F.3d 41, 2d Cir. (1996)
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Scribd Government DocsHerman Benjamin Ferguson v. Federal Bureau of Investigation, 83 F.3d 41, 2d Cir. (1996)
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Scribd Government Docs83 F.
3d 41
Herman Benjamin FERGUSON, Plaintiff-Appellant,
v.
FEDERAL BUREAU OF INVESTIGATION, DefendantAppellee.
No. 1533, Docket 95-6186.
United States Court of Appeals,
Second Circuit.
Argued April 9, 1996.
Decided April 30, 1996.
Joan P. Gibbs, Center for Constitutional Rights, New York City, NY, for
Plaintiff-Appellant.
Steven I. Froot, Assistant United States Attorney, New York City (Mary
Jo White, United States Attorney for the Southern District of New York,
and Assistant United States Attorney Allan N. Taffet, New York City, on
the brief), for Defendant-Appellee.
Before: KEARSE, ALTIMARI, and JACOBS, Circuit Judges.
PER CURIAM:
The background and lengthy procedural history of this case are discussed in
past opinions of this Court and of the District Court for the Southern District of
New York. See 957 F.2d 1059 (2d Cir.1992) (Ferguson I ); 1995 WL 329307
(S.D.N.Y. June 1, 1995); 1992 WL 249958 (S.D.N.Y. Sept. 22, 1992); 774
F.Supp. 815 (S.D.N.Y.1991); 762 F.Supp. 1082 (S.D.N.Y.1991). This appeal is
taken from a judgment of the United States District Court for the Southern
District of New York (Robert P. Patterson, Jr., Judge ) dismissing plaintiff's
complaint, brought under the Freedom of Information Act.
In brief, Herman Ferguson made a Freedom of Information Act (FOIA) request
for FBI documents pertaining to the Bureau's investigation in the 1960's of his
involvement in several civil rights groups that allegedly advocated violence.
The Bureau has given Ferguson a large number of documents, but has redacted
many of them. The Bureau justifies its redactions primarily on the ground that
the excised information was obtained from "confidential sources" and is
therefore exempt from FOIA disclosure under 5 U.S.C. 552(b)(7)(D).
Ferguson has maintained that none of the applicable FOIA exemptions applies,
and that he is entitled to all of the documents in unredacted form.
3
On our first encounter with this case, we reversed those parts of the district
court's orders that required the FBI to give Ferguson a particular category of
documents in unredacted form. Ferguson I, 957 F.2d at 1070. The district court
had held that the redacted information in these documents was not exempt
under FOIA's "confidential source" provision, because the sources had waived
their confidentiality. See 762 F.Supp. at 1096-98. We held that a source's
confidentiality could not be waived, and concluded that the redactions in the
documents at issue were therefore exempt from disclosure. Ferguson I, 957
F.2d at 1068, 1069. We remanded the case to the district court to consider
redactions in all the other documents requested by Ferguson, because the
district court made no final ruling on these documents. Id. at 1064-65.
On remand, the district court held that the FBI had properly withheld the
requested information, and dismissed Ferguson's complaint. 1992 WL 249958.
We affirmed by summary order, No. 92-6272, 996 F.2d 302 (2d Cir. May 19,
1993), but vacated our order two months later and remanded "for further
consideration in light of" the Supreme Court's intervening decision in
Department of Justice v. Landano, 508 U.S. 165, 113 S.Ct. 2014, 124 L.Ed.2d
84 (1993). No. 92-6272, slip op. at 2 (2d Cir. July 19, 1993).
In Landano, the Court held that the Bureau is not entitled to a presumption
under 5 U.S.C. 552(b)(7)(D) that all of its sources are "confidential." 508 U.S.
at 180-81, 113 S.Ct. at 2024. Rather, adopting a "more particularized
approach," the Court held that a source is confidential if the information was
provided by the source " 'under an express assurance of confidentiality or in
circumstances from which such an assurance could be reasonably inferred.' " Id.
at 170-72, 113 S.Ct. at 2019 (quoting S.Conf.Rep. No. 1200, 93d Cong., 2d
Sess. 13 (1974), reprinted in 1974 U.S.C.C.A.N. 6285, 6291). Because the FBI
had not attempted in Landano to demonstrate that it made express assurances of
confidentiality to the sources at issue, the Court only considered the
circumstances under which implied assurances of confidentiality may be
inferred. See id. at 172-74, 113 S.Ct. at 2020. In this regard, it held that a more
narrow "inference of confidentiality" may be drawn as to categories of cases,
but only "when certain circumstances characteristically support an inference"
that the source was given an implied assurance of confidentiality. Id. at 176180, 113 S.Ct. at 2022-23. The test, explained the Court, is whether "the source
furnished information with the understanding that the FBI would not divulge
the communication except to the extent the Bureau thought necessary for law
enforcement purposes." Id. at 172-74, 113 S.Ct. at 2020. The Court explicitly
declined to decide whether a source can waive its "confidentiality" under
552(b)(7)(D), id., the issue we decided in Ferguson I.
6
After our remand for consideration under Landano, the FBI undertook a review
of its redactions to ensure conformity with Landano's new standard for
determining "confidentiality." A supervisor in the FBI's "Freedom of
Information-Privacy Acts" Section submitted an affidavit to the district court
("FBI affidavit"), categorizing the redactions by the type of confidentiality
assurance given to the Bureau's sources. Some assurances were express and
others were implied.
With respect to the express assurances of confidentiality, the affidavit explains
with considerable detail that for six categories of information withheld under
exemption 7(D), express assurances of confidentiality were given by the FBI to
the sources providing the information, and that these assurances are set forth
either in the documents themselves or in the source's informant file. For the
various types of implied assurances of confidentiality, the affidavit attempts to
explain why the circumstances surrounding the source's contact with the FBI
justify the inference that the source was "confidential" under the Landano test.
Having again reviewed the redacted documents in camera, the district court
held that the FBI's affidavit "supports the inference that the remaining
redactions contain information which was imparted on a confidential basis and
thus complied with the standards enunciated under Landano." 1995 WL
329307, at * 2. It therefore granted the FBI's summary judgment motion and
dismissed Ferguson's complaint. The district court's familiarity with the
disputed documents in this case (which it has examined in camera a number of
times over this litigation's six-and-a-half year life) justifies a deferential review
of its decision.
We have reviewed the Bureau's affidavit and agree that it was appropriate to
grant summary judgment in favor of the FBI. As to the Bureau's express
assurances of confidentiality, the affidavit is entirely sufficient. See Carney v.
Department of Justice, 19 F.3d 807, 812 (2d Cir.) ("[a]ffidavits or declarations
supplying facts indicating that the agency has conducted a thorough search and
giving reasonably detailed explanations why any withheld documents fall
within [a FOIA] exemption" suffice to meet the government's burden, and,
absent a showing of bad faith on the government's part, a district court may
award summary judgment based on such affidavits or declarations (footnote
omitted)), cert. denied, --- U.S. ----, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994).
Indeed, a similar affidavit by an FBI supervisor has been held sufficient for the
purposes of meeting the FBI's burden of showing that express assurances of
confidentiality were supplied to the sources of information withheld under
exemption 7(D). See Williams v. FBI, 69 F.3d 1155, 1159 (D.C.Cir.1995).
10
As to the implied assurances of confidentiality, we agree that the circumstances
identified by the Bureau support the inference that the sources "provide[d]
information with the expectation that the FBI would keep their identities and/or
the information provided in the strictest confidence." FBI affidavit at 11. The
"confidential" sources include (i) "potential witnesses" and individuals having a
"close" relationship with Ferguson, all of whom had reason "to fear reprisal and
harassment if their cooperation with the FBI were to become known," id. at 11,
12, 15; (ii) institutions providing information that is "not generally available to
the public," and that the institutions would have been "reluctant" to supply had
they not presumed a grant of confidentiality from the Bureau, id. at 19; (iii)
state and local enforcement agencies, to the extent that the information they
provided came from "confidential ... police sources" and was "of an intelligence
nature,"1 id. at 18; and (iv) foreign law enforcement agencies providing
information from their confidential sources on the assumption that the sources'
cooperation would not be made known. Id. at 21. In these circumstances, it is
proper to infer that the cooperation of these sources was based on an implied
assurance of confidentiality.
11
Because we conclude that the district court did not err in holding that the FBI's
redactions complied with the requirements of Landano, and because this was
the only issue remaining when we remanded the case post-Landano, we affirm
the district court's dismissal of Ferguson's complaint.
Information from state and local law enforcement agencies that is "generally
available to the public" has been released by the FBI in this last review. Id. at
18
