Mays v. Drug Enforcement Administration

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 26, 2000 Decided December 26, 2000

No. 99-5334

AndrE L. Mays a/k/a Abdul R. Wilson,
Appellant

v.

Drug Enforcement Administration,
Appellee

Appeal from the United States District Court
for the District of Columbia
(No. 98cv02496)

Steven J. Kaiser, appointed by the court, argued the cause
as amicus curiae on the side of appellant. With him on the
briefs were Matthew D. Slater and Michael R. Lazerwitz.

AndrE L. Mays, appearing pro se, was on the brief for
appellant.

Michael J. Ryan, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Wilma A.

Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney. Brian J. Sonfield, Assistant U.S. Attorney, en-
tered an appearance.

Before: Ginsburg, Randolph, and Tatel, Circuit Judges.

Opinion for the court filed by Circuit Judge Ginsburg.

Ginsburg, Circuit Judge: AndrE Mays was convicted of
conspiring to distribute base and powder cocaine. He now
invokes the Freedom of Information Act (FOIA), 5 U.S.C.
s 552, to get from the Drug Enforcement Agency documents
relating to its criminal investigation of him. The Government
contends that it may withhold the information pursuant to
FOIA Exemption 7(C), which protects the privacy interests of
third parties, and Exemption (7)(D), which protects confiden-
tial information. We hold, under Exemption 7(D), that ex-
press and implied grants of confidentiality protect the reports
of informants relating to Mays' conspiracy to traffic in co-
caine. With respect to Exemption 7(C), we remand this
matter for the district court to address Mays' argument that
certain non-exempt information must be segregated and re-
leased.

I. Background

After his conviction Mays asked the DEA for copies of all
DEA records filed under his name or under the names of
certain third parties. With respect to Mays' own file, the
DEA responded by releasing portions of 14 pages; referring
five pages to the FBI, all of which the FBI later released to
Mays; and withholding 19 other pages under the claimed
authority of the Privacy Act, 5 U.S.C. s 552a(j)(2), and Ex-
emptions 2, 7(C), 7(D), and 7(F) of the FOIA. The DEA also
denied Mays access to information in the files of third parties,
citing the same provisions. In all, the DEA processed 44
pages in response to Mays' request, releasing five pages in
their entirety, redacting and releasing 14 pages, and with-
holding 25 pages.

Mays filed this action in district court in order to compel
release of the withheld information. The Government intro-
duced into evidence the affidavit of Leila Wassom, a DEA

paralegal, justifying the exemptions, along with a so-called
Vaughn index, containing an itemized account of the disputed
documents and of the exemption(s) and rationale(s) under
which the DEA withheld or redacted each item. Mays con-
ceded that the Government may withhold the items for which
it invoked Exemptions 2 and 7(F), and both sides moved for
summary judgment as to the other items. The district court,
believing that Mays challenged only the withholdings pursu-
ant to Exemption 7(D), granted summary judgment for the
Government. The court determined that some of the infor-
mation in question is the subject of an express grant of
confidentiality the DEA made to an informant, and that the
DEA impliedly undertook to hold the remainder confidential
in light of the danger faced by a cooperating individual who
informs on drug traffickers.

Mays now appeals and, both pro se and through an amicus
appointed by this court, challenges the Government's applica-
tion of Exemptions 7(C) and 7(D). (We make no further
distinction between the arguments of the appellant and those
of the amicus in this court.) Mays concedes that Exemption
7(C) applies to names of third parties and to other identifying
information, but contests both the Government's decision to
withhold certain "investigative details" and its failure to seg-
regate and to produce non-exempt information on pages that
also contain exempt information. As for Exemption 7(D), he
argues that there is insufficient evidence of an express grant
of confidentiality, and that the nature of his crime by itself
does not support an implied grant of confidentiality.

II. Analysis

Contrary to the understanding of the district court, Mays
properly contested the application of Exemption 7(C) in addi-
tion to that of Exemption 7(D). Therefore, we address his
arguments with respect to each exemption.

A. Exemption 7(C)

Exemption 7(C) protects information the disclosure of
which "could reasonably be expected to constitute an unwar-
ranted invasion of personal privacy." 5 U.S.C. s 552(b). As

such, it reflects "the strong interest of individuals, whether
they be suspects, witnesses, or investigators, in not being
associated unwarrantedly with alleged criminal activity."
Computer Prof'ls v. U.S. Secret Serv., 72 F.3d 897, 904 (D.C.
Cir. 1996). When information withheld by the Government
implicates this interest, it becomes necessary to determine
whether disclosure is warranted by "balanc[ing] the public
interest in disclosure against the interest Congress intended
the Exemption to protect." DOJ v. Reporters Comm., 489
U.S. 749, 776 (1989). Because the FOIA is concerned with
the right of the general public to know what their government
is up to, the identity and interest of the party requesting the
document are irrelevant to this balancing. See id. at 771.
Absent exceptional circumstances, the balance categorically
favors withholding the names and addresses of third parties
as "the type of information sought is simply not very proba-
tive of an agency's behavior or performance." Safecard
Servs., Inc. v. FCC, 926 F.2d 1197, 1205 (D.C. Cir. 1991).
Finally, Exemption 7(C) ordinarily permits the Government
to withhold only the specific information to which it applies,
not the entire page or document in which the information
appears; any non-exempt information must be segregated
and released, see 5 U.S.C. s 552(b), unless the "exempt and
nonexempt information are 'inextricably intertwined,' such
that the excision of exempt information would impose signifi-
cant costs on the agency and produce an edited document
with little informational value." Neufeld v. IRS, 646 F.2d
661, 666 (D.C. Cir. 1981).

It is against this backdrop that Mays contests the Govern-
ment's withholdings under Exemption 7(C). In his pro se
opposition to the Government's motion for summary judg-
ment, he conceded the legitimacy of redacting "names or
other identifying symbols" but argued that "merely because
an isolated portion of a document need not be disclosed does
not make the entire document exempt from disclosure." This
adequately presented the argument that under Exemption
7(C) only names and other identifying information can be
withheld.

 Although the district court did not address this argument,
we would affirm its grant of summary judgment if Mays could
not prevail against the Government's factual showing. That,
however, is not the case. In her affidavit Ms. Wassom
establishes that "[s]ome of the documents ... contain names
and addresses and other identifying information [exempt
from disclosure]," and asserts that "information about the
plaintiff is inextricably intertwined with third party informa-
tion." She does not say, however, that all the "third party
information" with which information about Mays is "inextrica-
bly intertwined" is itself exempt. Segregation may prove
feasible when only that "third party information" actually
protected under Exemption 7(C), such as the aforementioned
"names and addresses and other identifying information," is
excised.

The Vaughn index also leaves open the possibility that
some of the "third party information" in question is unpro-
tected. It repeatedly characterizes withheld information as
"investigative details," but Exemption 7(C) does not necessar-
ily cover all "investigative details" -- a category presumably
distinct from, and potentially far broader than the "names of
individuals/personal information" to which the Vaughn index
elsewhere refers. Only the latter, narrower category of
information is necessarily exempt. See Nation Magazine v.
Customs Serv., 71 F.3d 885, 895-96 (D.C. Cir. 1995); Safecard
Servs., 926 F.2d at 1206. The present record simply does not
tell us whether and to what extent release of the "investiga-
tive details" referred to in the Vaughn index would reveal the
identity or otherwise implicate the privacy interests of any
third party.

Therefore, we must remand this aspect of the case for the
district court to determine what information is actually pro-
tected under Exemption 7(C) and whether any intelligible
portion of the contested pages can be segregated for release.
Consistent with our precedent, the district court may review
the disputed documents in camera in order to make this
determination. See QuiNon v. FBI, 86 F.3d 1222, 1228 (1996).

 B. Exemption 7(D)

Exemption 7(D) protects against the disclosure of "informa-
tion furnished by a confidential source" and contained in a
record "compiled by [a] criminal law enforcement authority in
the course of a criminal investigation." 5 U.S.C. s 552(b).
The applicability of the exemption in each case depends upon
whether the particular source who furnished the information
at issue was granted confidentiality, either expressly or by
implication. See DOJ v. Landano, 508 U.S. 165, 172 (1993).

1. Express grant of confidentiality

Mays argues, first, that the district court lacked adequate
evidence to conclude that one source in this case received an
express grant of confidentiality. This claim is without merit.
Wassom's affidavit attributes four of the contested pages to a
single "coded informant" and describes the DEA's standard
practice of identifying confidential informants in this way.
The Vaughn index confirms that each of the four pages is
marked by the same "DEA confidential informant code."
This evidence is cognizable and unrebutted.

Mays nonetheless maintains that the record is insufficient
to support summary judgment for the Government in light of
our recent explication of the evidence required:

To withhold information under Exemption 7(D) by ex-
press assurances of confidentiality, the [Government]
must present "probative evidence that the source did in
fact receive an express grant of confidentiality." Davin
[v. DOJ, 60 F.3d 1043, 1061 (3d Cir. 1995)]. Such
evidence can take a wide variety of forms, including
notations on the face of a withheld document, the person-
al knowledge of an official familiar with the source, a
statement by the source, or contemporaneous documents
discussing practices or policies for dealing with the
source or similarly situated sources.

Campbell v. DOJ, 164 F.3d 20, 34 (1998) (emphasis supplied).
This obviously is not an exhaustive list. In any event, the
Vaughn index in this case plainly refers to "notations on the

face of [the] withheld document[s]" -- specifically, the DEA
confidential informant code -- indicating that this source
received an express assurance of confidentiality. The Gov-
ernment is therefore entitled to summary judgment with
respect to the four pages so coded.

2. Implied grant of confidentiality

Mays argues, second, that the district court erred in con-
cluding that an implied grant of confidentiality covers three
pages attributable to a second source who, according to
Wassom's affidavit, provided a local sheriff's office with infor-
mation "about the drug trafficking activities of [Mays] and
third parties." According to Wassom, because Mays "has
been convicted of conspiracy to distribute cocaine and cocaine
base .... [i]t is reasonable to infer that the individuals who
provided information about [Mays] would fear for their safety
if their identities or the information they provided was re-
vealed." Indeed, the Government maintains that the crime of
trafficking in cocaine is inherently so dangerous, and the
relationship of any individual with information about it suffi-
ciently close to the danger, that confidentiality should auto-
matically attach in these circumstances.

In DOJ v. Landano, 508 U.S. 165 (1993), the Supreme
Court mapped the contours of the inquiry into implied confi-
dentiality. It rejected the broad presumption urged by the
Government there "that a source is confidential within the
meaning of Exemption 7(D) whenever the source provides
information to the FBI in the course of a criminal investiga-
tion." Id. at 181. At the same time, the Court anticipated
that "often" the Government would be able to point to "more
narrowly defined circumstances that will support the infer-
ence." Id. at 179. After instancing the case of paid infor-
mants, the Court acknowledged that "[t]here may well be
other generic circumstances in which an implied assurance of
confidentiality fairly can be inferred." Id. "For example,
when circumstances such as the nature of the crime investi-
gated and [the informant's] relation to it support an inference
of confidentiality, the Government is entitled to a presump-
tion." Id. at 181.

 In Landano the Court plainly contemplated making proba-
bility judgments in assessing whether an implied grant of
confidentiality attaches to a particular type of source. To
illustrate, the Court observed that"[m]ost people would think
that witnesses to a gang-related murder likely would be
unwilling to speak to the [FBI] except on the condition of
confidentiality." 508 U.S. at 179. We have since identified
the crimes of "rebellion or insurrection, seditious conspiracy,
and advocating overthrow of the government" as serious
offenses that, when undertaken by a criminal enterprise with
a record of violence, warrant the inference that an informant
expects confidentiality. Williams v. FBI, 69 F.3d 1155, 1159-
60 (1995).

In this case the cooperating individual supplied information
about a conspiracy to distribute crack and powder cocaine.
The pertinent question is whether the violence and risk of
retaliation that attend this type of crime warrant an implied
grant of confidentiality for such a source. They most as-
suredly do.

This court knows all too well the violence and danger that
accompany the cocaine trade. See United States v. Payne,
805 F.2d 1062, 1065 (1986) (firearms "are as much tools of the
[drug] trade as more commonly recognized drug parapherna-
lia"); Navegar, Inc. v. United States, 192 F.3d 1050, 1058
(1999) (Congressional Record establishes "disproportionate
link between [assault] weapons and drug-trafficking and vio-
lent crime"); United States v. Holland, 810 F.2d 1215, 1219
(1987) (drug transactions "contribute directly to the violent
and dangerous milieu that Congress sought to eliminate").
Indeed, for the same reasons that an informant would justifi-
ably fear reprisal from a murderous street gang and expect
the authorities to keep his information confidential, so too
would an informant reasonably fear reprisal by conspirators
to distribute cocaine; the two types of criminal enterprises
are closely comparable in terms of their organization and
their penchant for violence. See U.S. Sentencing Commission,
Special Report to the Congress: Cocaine and Federal Sen-
tencing Policy 4 (1997) (trafficking in crack cocaine closely
associated with "systemic crime ... particularly the type of

violent street crime so often connected with gangs, guns,
serious injury, and death"); U.S. Sentencing Commission,
Special Report to the Congress: Cocaine and Federal Sen-
tencing Policy 95-98 (1995) (chronicles empirics of violent
crime, including "elimination of informers," that attends traf-
ficking in crack and powder cocaine).

Indeed, our notion of what is reasonable police conduct has
long reflected the heightened danger and risk of violence
posed by cocaine trafficking. See United States v. Bonner,
874 F.2d 822, 827 (1989) (police justified in breaking down
door in part because "entrance into a situs of [cocaine]
trafficking carries all too real dangers to law enforcement");
United States v. White, 648 F.2d 29, 35 n.29 (1981) (study of
drugs and violence justifies police drawing weapons because
"odds [are] too high to require policemen to play 'russian
roulette' each time they effect a drug arrest"). Surely we
must extend the same consideration to informants when they
help a law enforcement agency combat this type of crime. To
expose them to the real potential of retaliation at the hands of
cocaine traffickers would be not only incongruous but also
perverse.

Mays protests that the presumption urged by the Govern-
ment is too broad, that it would cloak in confidentiality
anything anyone ever tells a law enforcement officer about
any drug crime. Not so: We speak here only of those
informants who supply intelligence relating to the crime of
conspiracy to distribute cocaine; the accumulated evidence
and experience of this court bear most forcefully upon that
specific offense.

Mays further objects that a presumption based solely upon
the "character of the crime" effectively obviates consideration
of "the source's relation to the crime." 508 U.S. at 179. In
Landano the Supreme Court said only that both character
and relation -- presumably whether the informant's "relation
to the crime" puts him at risk of retaliation -- "may be
relevant," id., not that the source need have any particular
relationship to the crime in order for the information he
supplies to be deemed confidential. Mays questions why,

then, our decision in Williams, which involved crimes of a
very violent nature, turned nonetheless in part upon evidence
that (in Mays' words) "the particular sources were close to
the group" responsible for the crimes. The answer is that
with respect to certain sources we did not have any indepen-
dent evidence that they were close to the group; we inferred
that they were precisely because they had provided "informa-
tion [that] was of an intelligence nature and generally was not
provided to the public." 69 F.3d at 1158. We reasoned that
if the sources could furnish such information then they surely
would have been "vulnerable to retaliation if [their] coopera-
tion had been disclosed." Id. at 1160. That hardly suggests
that evidence of a close relationship between the source and
the crime is required in order to infer confidentiality.

In sum, whatever his "relation to the crime," an informant
is at risk to the extent the criminal enterprise he exposes is of
a type inclined toward violent retaliation. That a conspiracy
to distribute cocaine is typically a violent enterprise, in which
a reputation for retaliating against informants is a valuable
asset, is enough to establish the inference of implied confiden-
tiality for those who give information about such a conspiracy.

This is not to deny that there may be cases in which a
person who provides information to the police, such as a
neighborhood anti-crime crusader, might not expect or even
want to be treated confidentially. Nonetheless, Landano
plainly contemplates that courts will identify "generic circum-
stances in which an implied assurance of confidentiality fairly
can be inferred." 508 U.S. at 179. And we have no doubt
that a source of information about a conspiracy to distribute
cocaine typically faces a sufficient threat of retaliation that
the information he provides should be treated as implicitly
confidential.

III. Conclusion

For the foregoing reasons we affirm the judgment of the
district court with respect to Exemption 7(D), and remand
this case for the district court to address, in a manner

consistent with this opinion, Mays' claim with respect to
Exemption 7(C).

So ordered.