Duffin v. Carlson, 636 F.2d 709 (D.C. Cir. 1980)

Opinion for the Court filed by Circuit Judge MacKINNON.

MacKINNON, Circuit Judge:

Duffin, a prison inmate, in response to his prior requests, had been given access to some documents from the files of the Bureau of Prisons, and in this appeal contends that he is entitled under the Freedom of Information Act to three newly discovered documents that are also in the possession of prison authorities. The records that Duffin demands consist of confidential information furnished only by confidential sources, i.e., by informants. We deny appellant’s claim since Section 552(b)(7)(D) of the Freedom of Information Act specifically exempts such confidential information from its disclosure requirements.

Appellant’s brief to this Court states: “That the [Privacy Act, 5 U.S.C. § 552a(j)] permits an agency head to exempt from disclosure under the Privacy Act ‘any system of records ... which consists of . . . information compiled for the purpose of a criminal investigation.’ ” The brief also states “that [the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b)(7)(D)] permits the withholding of information compiled for law enforcement purposes if released [sic] would disclose the identity of a confidential source.” (Appellant’s Brief at 9) We accept as accurate appellant’s interpretation that the Privacy Act exempts the requested documents from disclosure. However, we deny that appellant’s interpretation of § 552(b) (7)(D) of the Freedom of Information Act considers the precise exemption contained in § 552(b)(7)(D) that is dispositive of this case. The relevant provisions of the Privacy Act are set forth below.1 For

§ 552(b)(7)(D) of the Freedom of Information Act see infra at pages 711-712.

On this appeal, as above stated, appellant admits that the three documents are exempt from disclosure under the Privacy Act, 5 U.S.C. § 552a. This is consistent with the legislative history of the Act. The Senate Committee Report on the Privacy Act, S.Rep.No. 93-1183, 93d Congress, 2d Sess., Sept. 26, 1974, U.S. Code Cong., Admin. News 1974, pp. 6916, 6937, points out that “law enforcement files” cover information of two general classes; (1) “ ‘criminal history information’ . . . sometimes called rap sheets . . .”, and (2) “intelligence, or investigative files ...” As a “general principle [the Committee Report indicates] . . . records [constituting ‘criminal history information’] are subject to ... the right of access provision.” Id. However, with respect to the second class of records, Congress did not “allow individuals to see their own intelligence or investigative files.” As the Senate Committee Report stated:

Id., 23, U.S. Code Cong. & Admin. News 1974, p. 6938.

Appellant, however, questions whether the fact that such documents are exempt from disclosure under the Privacy Act “obviates the need to consider whether disclosure may nonetheless be required by the Freedom of Information Act, 5 U.S.C. § 552.” (Appellant’s Brief, p. 2). Congress indicated in its latest enactment, i.e., the Privacy Act, that “it would not be appropriate to allow individuals to see their own intelligence or investigative files” containing “sensitive and usually confidential information.” Senate Committee Report, supra at 23, U.S. Code Cong. & Admin. News 1974, p. 6938. This is particularly true since the 1974 amendments to that Act were pending at the same time as the Privacy Act, were in pari materia, and were adopted on November 21, 1974, only 40 days before the Privacy Act was signed. From the Privacy Act’s prohibition it can be strongly argued that Congress foreclosed disclosure of the same confidential information under the Freedom of Information Act. Why would Congress in one Act categorically prohibit disclosure of information furnished by informants and in another Act compel disclosure of the same confidential information? However, we need not determine whether the Privacy Act prohibition of disclosure forecloses disclosure pursuant to the Freedom of Information Act because the FOIA contains a specific exemption from disclosure for “confidential information furnished only by the confidential source.”

The relevant provisions of the Freedom of Information Act states:

ty of a confidential source and, in the case of a record compiled by a criminal law enforcement agency in the course of a criminal investigation, ... confidential information furnished only by the confidential source,...” (Emphasis added)

Appellant by the footnote in his brief, cited above, mistakenly construes the exemption provided for in subsection (7)(D) as being limited to “the withholding of information compiled for law enforcement purposes [which] if released [sic] would disclose the identity of a confidential source.” The statute does provide for such an exemption, but it goes further by adding, as the “and” indicates, another exemption for

It would be a misinterpretation of the Act to construe it as not exempting records containing “confidential information furnished ... by [a] confidential source” unless the record also “disclose[s] the identity of [the] . .. confidential source.” Subsection (b)(7)(D) has two aspects. It protects from disclosure (1) the “identity” of a confidential source, and (2) confidential “information” furnished only by a confidential source. The two clauses2 thus provide two separate exemptions, not one exemption protecting against the disclosure of the identity of confidential sources and another protecting confidential information only if the record also indicates the identity of the confidential source. A plain reading of the statute indicates that confidential information furnished only by a confidential source need not divulge the “identity” of the confidential source in order to be protected from disclosure. Such an interpretation results from the inclusion of the conjunction “and” between the two clauses.

This conclusion is also supported by decisional law. In Church of Scientology v. U.S. Department of Justice, 410 F.Supp. 1297 (C.D.Cal.1976), the Court held under § 552(b)(7)(D) that information furnished by a confidential source is exempt.

410 F.Supp. at 1302.

The opinion also reviews the Congressional history of the passage of the 1974 Amendments. President Ford vetoed the bill because, in part, he felt that “confidentiality would not be maintained.” However, Senator Hart, sponsor of the amendatory language that we rely upon here, responded:

would reveal an informer’s identity; all the FBI has to do is to state that the information was furnished by a confidential source and it is exempt. (Emphasis added by district court).

120 Cong. Rec. 36871 (1974). Congress then passed the amendments over the veto of the President. The Court in the ease reviewed above then held that the word “source” in “confidential source” included information provided by law enforcement agencies, and withheld information provided by such agencies. 410 F.Supp. at 1302-03.

Maroscia v. Levi, 569 F.2d 1000,1002 (7th Cir. 1977), implicitly holds that certain files containing the identities of persons interviewed by the FBI and information received from them were “investigatory records compiled for law enforcement purposes”, acquired under an assurance of confidentiality, and therefore exempt. See also opinion of Chief Judge Wright, concurring in part and dissenting in part, in Marks v. C.I.A., 590 F.2d 997, 1011, n.19 (D.C.Cir. 1978), which presages the holding in the instant case.

Therefore, it is not necessary to discuss the extent to which the documents do, or might, disclose the identity of the confidential informant. This exemption from disclosure rests on broader grounds. Because the three records as “confidential information” under (b)(7)(D) are exempt in their entirety from disclosure, it is unnecessary and contrary to the statute to consider redaction of the details of the documents that might identify the informants.

We have examined the three documents in camera, and determined that § 552(b)(7)(D) of the statute exactly describes the documents in question and the information they contain. Each of the three documents consists of confidential information only from confidential sources and each contains reports of criminal activities committed by several prison inmates, including Duffin and others. The documents also contain information with respect to modus operandi, that apart from names, could be used to identify other prisoners engaged in criminal activities and their confederates in crime. The sources of the information are stated to be several confidential informants. The records are investigatory in nature. They are compiled by the Bureau of Prisons, which we find to be a criminal law enforcement authority, acting in the course of a criminal investigation for law enforcement purposes.3

It is significant that Congress in the Privacy Act also recognized that prisons were law enforcement agencies, by exempting-

5 U.S.C. § 552a(j)(2). (Emphasis added) •Prisons perform as their principal function one of the most important duties pertaining to the enforcement of the criminal laws, i.e., the execution of sentences in criminal cases adjudging confinement to the custody of the Attorney General. Therefore, they were properly determined by Congress to be a law enforcement agency or component thereof. As such, prison authorities also necessarily have the obligation, as here, to impose discipline for violation of the criminal laws and prison regulations by convicted prisoners who are confined in their custody. To do this the prison must investigate and maintain sources of intelligence. In so acting prisons perform law enforcement functions. Also, our in camera examination of the three records, and the findings of the District Court under the Privacy Act disclose that each of the three documents consists of “confidential information furnished only by the confidential source.” Therefore, under § 552(b)(7)(D) of the Freedom of Information Act, each of the documents is exempt from disclosure in its entirety.

Under such circumstances, judicial economy allows this Court to affirm the judg

ment of the District Court on the grounds stated by it and upon the additional grounds set forth above that have resulted from our in camera examination of the questioned records. Oklahoma v. Civil Service Comm’n, 330 U.S. 127, 134 n.3, 67 S.Ct. 544, 549, 91 L.Ed. 794 (1947); SEC v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943); United States v. McFarland, 348 F.2d 215, 216 (3d Cir. 1965); cf. Wirtz v. Local 125, Laborers’ International Union, 389 U.S. 477, 479-480, 88 S.Ct. 639, 640, 19 L.Ed.2d 716 (1968); National Automatic Laundry and Cleaning Council v. Schultz, 143 U.S.App.D.C. 274, 443 F.2d 689 (1971).

A good case could also be made out for applying exemption (b)(7)(A) on the ground that “production of such records would (A) interfere with enforcement proceedings .. . [and] (E) [would] disclose investigative techniques [and] procedures, ...” However, our application of the (b)(7)(D) exemption to the questioned records makes it unnecessary to discuss the possibility of applying additional exemptions.

Insofar as Duffin’s claim to attorney’s fees is concerned we rely on the legal and factual analysis of Judge Flannery’s District Court opinion.

We agree, and since the factual situation has not changed in any substantial respect we reach the same conclusion as the District Court and affirm the denial of attorney’s fees for the reasons stated.

CONCLUSION

The three documents in question are exempt from disclosure under the Privacy Act, 5 U.S.C. § 552a and the Freedom of Information Act, 5 U.S.C. § 552; and Duffin has not “substantially prevailed” in his action so as to be entitled to attorney’s fees.