United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Submitted October 16, 2000 Decided December 1, 2000
No. 99-5402
Gail G. Billington,
Appellant
v.
U.S. Department of Justice,
Appellee
Appeal from the United States District Court
for the District of Columbia
(92cv00462)
Gail G. Billington, appearing pro se, was on the briefs for
appellant.
Wilma A. Lewis, U.S. Attorney, R. Craig Lawrence and
Scott S. Harris, Assistant U.S. Attorneys, were on the brief
for appellee.
Before: Williams, Randolph, and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: Gail Billington's efforts to pry
loose information from the Department of Justice are chroni-
cled in the two lower court opinions that preceded this appeal.
See Billington v. Department of Justice, 11 F. Supp. 2d 45
(D.D.C. 1998) (Billington I), and Billington v. Department of
Justice, 69 F. Supp. 2d 128 (D.D.C. 1999) (Billington II). In
brief, Gail Billington and her husband Michael were members
of the National Caucus of Labor Committees (NCLC), a
political organization founded by Lyndon LaRouche in the
1960s. Mr. Billington and other members were prosecuted
and convicted in the 1980s for fund-raising irregularities. In
1991 and 1992, Gail Billington filed several Freedom of Infor-
mation Act (FOIA) requests with the Federal Bureau of
Investigation seeking information relating to the federal and
state investigations of the NCLC. She believes this informa-
tion will exculpate her husband and other convicted NCLC
members. The FBI withheld some responsive documents in
full and released others in redacted form, citing exemptions 1,
2, 3, 5, 6, 7(C), 7(D), and 7(E) to FOIA. See 5 U.S.C.
s 552(b)(1)-(7). Billington challenged several of those claims
of exemption in this suit.1
The district court divided the case into two stages, the first
to consider all documents but those contained in four FBI
"Internal Security" files and the second to consider docu-
ments from those four files. In Billington I, the court upheld
all of the government's withholdings and redactions under
exemptions 1, 2, 3, and 5 to FOIA. It upheld most of the
government's exemption 7(C) withholdings, but ordered the
government to reevaluate withholdings relating to a deceased
individual and to information that had previously been dis-
closed to another FOIA requester. The court also upheld
__________
1 Billington is also a plaintiff in the NCLC's civil rights suit
against the Attorney General and the Director of the FBI in the
Southern District of New York. Several of Billington's claims in
the instant case relate to redactions on documents the government
has filed under seal in that case.
most of the government's exemption 7(D) withholdings, but
ordered the FBI to provide a supplemental affidavit justifying
redactions concerning entities that received, rather than pro-
vided, information on a confidential basis. The court also
found a State Department declaration justifying exemption 6
withholdings insufficient and ordered an in camera review of
the documents. See 11 F. Supp. 2d 45 (D.D.C. 1998).
In Billington II, the district court upheld the government's
withholdings under exemptions 1, 2, 7(C), 7(D), and 7(E),
including some withholdings it had questioned in Billington I.
See 69 F. Supp. 2d 128 (D.D.C. 1999).
On appeal, Billington challenges certain of the govern-
ment's exemption 6,2 7(C), 7(D), and 7(E)3 withholdings. She
also challenges the sufficiency of one Internal Revenue Ser-
vice declaration and the propriety of the district court review-
ing another in camera. We have nothing to add to the
district court's sound reasoning with respect to the govern-
ment's withholding parts or all of documents under exemp-
__________
2 Exemption 6 permits the government to withhold "personnel
and medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy." See
5 U.S.C. s 552(b)(6).
3 Exemption 7 permits the government to withhold "records or
information compiled for law enforcement purposes, but only to the
extent that the production of such law enforcement records or
information * * * (C) could reasonably be expected to constitute an
unwarranted invasion of personal privacy, (D) could reasonably be
expected to disclose the identity of a confidential source, including a
State, local, or foreign agency or authority or any private institution
which furnished information on a confidential basis, and, in the case
of a record or information compiled by criminal law enforcement
authority in the course of a criminal investigation or by an agency
conducting a lawful national security intelligence investigation, in-
formation furnished by a confidential source, (E) would disclose
techniques and procedures for law enforcement investigations or
prosecutions, or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure could reasonably be
expected to risk circumvention of the law * * *." See 5 U.S.C.
s 552(b)(7).
tions 7(C) and 7(E), and therefore reject this portion of
Billington's appeal substantially for the reasons given by the
district court. Of the remaining issues we reverse and re-
mand (with one exception, see note 5 infra) for the reasons
given in the balance of this opinion.
I.
FOIA requires the government to disclose, upon request,
broad classes of documents identified in 5 U.S.C. s 552(a). It
exempts from disclosure nine categories of documents de-
scribed in 5 U.S.C. s 552(b). The government is entitled to
summary judgment if no material facts are in dispute and if it
demonstrates either that withheld or redacted documents are
not required to be disclosed under s 552(a) or are exempt
from disclosure under s 552(b). See, e.g., Computer Profes-
sionals for Social Responsibility v. United States Secret
Serv., 72 F.3d 897, 902 (D.C. Cir. 1996); Gallant v. NLRB, 26
F.3d 168, 171 (D.C. Cir. 1994). We review the district court's
grant of summary judgment de novo. See Spirko v. United
States Postal Serv., 147 F.3d 992, 998 (D.C. Cir. 1998);
Nation Magazine v. United States Customs Serv., 71 F.3d
885, 889 (D.C. Cir. 1995).
A.
The government withheld or redacted numerous documents
under exemption 7(D), which protects law enforcement infor-
mation obtained from sources who received an express or
implied assurance of confidentiality. See Campbell v. United
States Dep't of Justice, 164 F.3d 20, 34 (D.C. Cir. 1998). The
question posed in exemption 7(D) cases "is not whether the
requested document is of the type that the agency usually
treats as confidential, but whether the particular source spoke
with an understanding that the communication would remain
confidential." United States Dep't of Justice v. Landano, 508
U.S. 165, 172 (1993). Landano rejected the government's
suggestion that assurances of confidentiality are "inherently
implicit" when somebody provides information to a federal
law enforcement agency. See 508 U.S. at 174-78.
In this case, the government's justifications for withholding
or redacting certain documents under exemption 7(D) fall
short of the particularized justification Landano requires.
The government's declarations do not sufficiently detail cer-
tain express assurances of confidentiality and do not ade-
quately explain implied assurances of confidentiality for infor-
mation received after 1977.
The government employed a coding system to correlate
claims of exemption on responsive documents to the justifica-
tions in its declarations. It identified seven exemption 7(D)
categories using the notations (b)(7)(D)-1, (b)(7)(D)-2, and so
on through (b)(7)(D)-7. See Joint Appendix 43-44. Billing-
ton challenges four of these categories: (b)(7)(D)-3 ("name
and information provided by source with an expressed prom-
ise of confidentiality"), (b)(7)(D)-4 ("name, identifying data
and information provided with an implied promise of confi-
dentiality"), (b)(7)(D)-5 ("information provided by non-federal
law enforcement agencies under an implied promise of confi-
dentiality"), and (b)(7)(D)-7 ("name of a foreign government
agency who has an expressed promise of confidentiality").
See Joint Appendix 43-44.
The government's declarations justifying exemptions coded
(b)(7)(D)-3 do not "present 'probative evidence that the
source did in fact receive an express grant of confidentiality'."
See Campbell v. United States Dep't of Justice, 164 F.3d 20,
34 (D.C. Cir. 1998). The FBI's August 29, 1997, declarations
supporting the (b)(7)(D)-3 redactions state that "this informa-
tion was received with the explicit understanding that it
would be held in the strictest confidence. It is obvious from
the released information that these sources warrant confiden-
tiality." Joint Appendix 55. This may be obvious to the
affiant, but it is not obvious to us. This bald assertion that
express assurances were given amounts to little more than
recitation of the statutory standard, which we have held is
insufficient. See Campbell, 164 F.3d at 30 ("the affidavits
must show, with reasonable specificity, why the documents
fall within the exemption. The affidavits will not suffice if the
agency's claims are conclusory, merely reciting statutory
standards, or if they are too vague or sweeping."); King v.
United States Dep't of Justice, 830 F.2d 210, 219 (D.C. Cir.
1987). The declaration goes on to state that "the manner in
which the FBI actually obtains information from these
sources is also demonstrative of the express promise of
confidentiality under which it was received. The information
is often received at times and at locations which guarantee
the contact will not be noticed." Joint Appendix 56. The
circumstances under which the FBI receives information
might support a finding of an implied assurance of confiden-
tiality, but they do not demonstrate the oral or written act
required for an express assurance of confidentiality. Cf.
Landano, 508 U.S. at 179 (suggesting "generic circumstances
in which an implied assurance of confidentiality fairly can be
inferred").
The FBI's March 11, 1998, declaration at least avers that
evidence of express assurances exists, recorded either on the
document containing the information or in some other place.
Such a memorialization made contemporaneously with a re-
port summarizing information received from a confidential
source certainly suffices. See Campbell, 164 F.3d at 34. The
trouble is that several of the contested documents do not
contain the notations mentioned in the March 11 declaration.4
The giving of express assurances may well be recorded
elsewhere, but the mere recitation of that fact does not
provide "detailed and specific information demonstrating 'that
material withheld is logically within the domain of the exemp-
tion claimed'." Campbell, 164 F.3d at 30. At the very least
the government must indicate where these assurances of
confidentiality are memorialized. In light of these deficien-
cies, we reverse the grant of summary judgment as to
documents that do not reveal an express assurance of confi-
dentiality on their face and remand to allow the government
to make a stronger showing.5
__________
4 Billington has withdrawn her challenge to documents that state
a source received an express assurance of confidentiality. See
Appellant's Reply Brief at 16.
5 We have reviewed and now reject Billington's objections to the
government's (b)(7)(D)-7 (express assurances of confidentiality to
Billington also attacks redactions based on an implied
assurance of confidentiality coded (b)(7)(D)-4 and (b)(7)(D)-5.
The character of the crime and the source's relation to it may
support an inference that the source provided information
under an implied assurance of confidentiality. See Landano,
508 U.S. at 179. The FBI's March 11, 1998, declaration and
attached exhibits indicate that law enforcement sources would
not have cooperated absent an implied assurance of confiden-
tiality. They amply document the NCLC's violent tendencies
and appetite for vengeance. See Joint Appendix Under Seal
41-43 and Exhibit 1.
The government's documentation primarily concerns the
period before 1978. As Billington points out, the FBI itself
recognized that the NCLC in the late 1970s publicly disa-
vowed violence in favor of seeking change through the politi-
cal process. Two FBI documents dated July and September
1977 report the change in organizational focus, note the
absence of recent violent incidents associated with the NCLC,
and recommend closure of investigations into the NCLC.
According to Billington, the FBI's recognition of a reincarnat-
ed NCLC indicates that FBI sources after 1977 might have
cooperated without an implied assurance of confidentiality.
Implied confidentiality analysis proceeds from the perspec-
tive of an informant, not the law enforcement agency as
Billington's argument assumes. However, the government's
perceptions are relevant insofar as they reflect changes in the
NCLC that were perceptible to informants. Several of the
redactions for which the government invoked an implied
assurance of confidentiality contain information provided to
the FBI in the 1980s, well after the NCLC underwent a
public metamorphosis. As a result, we cannot be certain that
the circumstances suggesting an implied assurance of confi-
__________
foreign governments) withholdings. The FBI's March 11, 1998, and
October 29, 1998, declarations adequately document the giving of
express assurances of confidentiality to the relevant foreign agen-
cies.
dentiality obtained in the 1980s.6 A remand is therefore
appropriate to require the government to identify or supply
evidence that informants predicated their assistance on an
implied assurance of confidentiality after 1977.7
B.
Billington also claims that declarations provided by the
Department of State and the Internal Revenue Service are
inadequate because they contain insufficient segregability
analysis. We agree. Under FOIA, "any reasonably segrega-
ble portion of a record shall be provided to any person
requesting such record after deletion of the portions which
are exempt under this subsection." 5 U.S.C. s 552(b). This
segregability requirement limits claims of exemption to dis-
crete units of information; to withhold an entire document, all
units of information in that document must fall within a
statutory exemption. See Trans-Pacific Policing Agreement
v. United States Customs Serv., 177 F.3d 1022, 1027 (D.C.
Cir. 1999) ("It has long been a rule in this Circuit that non-
exempt portions of a document must be disclosed unless they
are inextricably intertwined with exempt portions."). If the
parties do not address segregability, the district court must
raise it sua sponte. See Trans-Pacific, 177 F.3d at 1028.
The Internal Revenue Service heavily redacted two docu-
ments. See Joint Appendix 117 and 128. The Service's
declaration contains no segregability analysis, and the district
court made no segregability finding. We therefor must re-
__________
6 A couple of documents in the exhibits to the FBI's March 11,
1998, declaration (under seal) elliptically suggest the NCLC contin-
ued to harass its opponents into the 1980s. One is a heavily
redacted letter dated September 24, 1982, located in Exhibit II.
The other is a memorandum dated February 1, 1983, located in
Exhibit I, part 2.
7 We have doubts that NCLC members' participation in financial
crimes in the 1980s, without more, would support an inference that
sources received an implied assurance of confidentiality. Cf.
Schrecker v. United States Dep't of Justice, 74 F. Supp. 2d 26, 35
(D.D.C. 1999) (passport fraud and contempt of Congress found
sufficiently serious to infer confidentiality).
mand for a finding in this regard. The court also received an
in camera declaration, which Billington correctly notes is
disfavored. See Armstrong v. Executive Office of the Presi-
dent, 97 F.3d 575, 580-81 (D.C. Cir. 1996) ("Case law in this
Circuit is clear that when a district court uses an in camera
affidavit, it must both make its reasons for doing so clear and
make as much as possible of the in camera submission
available to the opposing party."). Because the Service's
public declaration is sufficient in all respects except segrega-
bility, we need not decide the propriety of the in camera
declaration.
The State Department withheld a 14-page document con-
taining notes from an interview in its entirety and released a
one-page document with a couple of lines redacted. The
district court initially found the Department's declaration
inadequate to support the Department's exemption 6 claim
and ordered an in camera review of the documents. See
Billington I, 11 F. Supp. 2d at 71-72. In Billington II, the
district court made no written findings regarding the in
camera review. In addition, the Department's declaration
appears inadequate to support withholding the entire 14-page
document. It may turn out that no further meaningful
segregation of information can be made, but we cannot tell
from the record. We are also uncertain that personal identi-
fying information so permeates the document that no part of
it can be released. On remand, the district court should
determine the applicability of exemption 6 to these documents
and examine whether any non-exempt portions can be re-
leased.
Affirmed in part, vacated in part, and remanded.