1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-1-1995

Davin v Dept of Justice

Precedential or Non-Precedential:

Docket 94-3590

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Recommended Citation

"Davin v Dept of Justice" (1995). 1995 Decisions. Paper 203.

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

No. 94-3590 

 

ERIC DAVIN, 

 Appellant 

v. 

UNITED STATES DEPARTMENT OF JUSTICE, 

FEDERAL BUREAU OF INVESTIGATION 

 

On Appeal from the United States District Court 

for the Western District of Pennsylvania 

(D.C. No. 92-cv-01122) 

 

Argued May 16, 1995 

BEFORE: COWEN, LEWIS and GARTH 

Circuit Judges

(Filed August 1, l995 ) 

Marketa Sims (argued) 

Reed, Smith, Shaw & McClay 

435 Sixth Avenue 

Pittsburgh, PA 15219-1886 

 COUNSEL FOR APPELLANT 

 ERIC DAVIN 

Bonnie R. Schlueter 

Michael L. Ivory (argued) 

Office of United States Attorney 

633 United States Post Office 

 and Courthouse 

Pittsburgh, PA 15219 

 COUNSEL FOR APPELLEE 

 U.S. DEPARTMENT OF JUSTICE, 

 FEDERAL BUREAU OF INVESTIGATION 

 

 

OPINION
2 

 

COWEN, Circuit Judge. 

 Eric Davin appeals from the order of the district court 

granting summary judgment in favor of the United States 

Department of Justice, Federal Bureau of Investigation ("the FBI" 

or "the government") in a Freedom of Information Act ("FOIA") 

action. In response to a FOIA request by Davin, the FBI 

submitted to the district court a Vaughn index that set forth 

coded justifications and corresponding explanations for its 

withholding of approximately 7,400 pages of information. Because 

the Vaughn index submitted by the government did not sufficiently 

describe the information withheld, the district court did not 

have an adequate factual basis for determining whether the 

claimed exemptions applied to the individual documents. 

Accordingly, we will reverse the order of the district court and 

remand this matter for further determinations consistent with 

principles articulated in this opinion. 

I. 

 Davin is a graduate history student at the University 

of Pittsburgh in the field of labor history. In order to 

complete his doctoral dissertation, in April 1986 Davin filed a 

FOIA request with the FBI seeking "a complete and thorough search 

of all filing systems and locations for all records . . . 

pertaining to David Lasser and The Workers Alliance of America." 

App. at 99 (emphasis in original). The Workers Alliance of 
3 

America ("WAA") was a nationwide organization representing the 

interests of thousands of unemployed individuals during the 

1930's and 1940's. For a time, the WAA was headed by David 

Lasser. Because the WAA did not keep minutes of its meetings, 

there are no other archives of information on its activities. 

Lasser, who is now in his nineties, has provided the FBI with a 

letter authorizing release of his files. 

 The WAA was investigated by the FBI during the 1930's 

after the FBI received information that the organization was a 

front for the Communist Party of America. The purpose of the 

investigation was to determine the extent of Communist influence, 

and the identity of WAA members who were members of the Communist 

Party at the time. The FBI also investigated Lasser. According 

to the FBI, Communists had captured positions of control within 

the WAA by 1936. In 1940, Lasser resigned, claiming the WAA was 

a front organization for the Communist Party. 

 In response to Davin's request, the FBI located nine 

relevant files at either national headquarters or at the New York 

field office. The FBI described the files as follows: 

FBIHQ main file, 61-7586, (45 sections) 

corresponds to NYFO main file, 100-3638, (6 

sections). Both files pertain to an internal 

security investigation and were compiled for 

law enforcement purposes. A 61 

classification is entitled "Treason or 

Misprision of Treason" and involves 

violations of Title 18, U.S.C., Sections 

2381, 2382, 2389, 2390, 756 and 757. A 100 

classification is entitled "Domestic 

Security" and covers investigations by the 

FBI in the domestic security field; e.g., 

Smith Act violations. The Attorney General 

declared WAA to be within the purview of 
4 

Executive Order 9835, and later Executive 

Order 10450. The first serial is dated March 

5, 1936, and the last serial is dated October 

21, 1960. . . . 

FBIHQ main file, 124-2592 is a loyalty 

investigation of David Lasser consisting of 

two sections. This classification covers 

security and loyalty investigations of 

personnel employed by or under consideration 

of employment with the European Recovery 

Program. Investigation was conducted under 

Public Law 472, 80th Congress. The first 

serial in this file is dated January 25, 

1949, and the last serial is dated October 

29, 1951. 

FBIHQ main file 121-413, (Loyalty of 

Government Employees) consisting of one 

section, pertains to a preliminary inquiry to 

ascertain if David Lasser was associated with 

the Communist Party or its front 

organizations. Investigation of David Lasser 

under the provision of Executive Order 9835 . 

. . was instituted by the FBI on April 22, 

1948. The first serial of this file is dated 

October 24, 1947, and the last serial is 

dated October 30, 1963. 

FBIHQ main file, 151-748 involves one 

section. This classification covers 

referrals from the Office of Personnel 

Management where an allegation has been 

received regarding an applicant's loyalty to 

the U.S. Government. The Agency for 

International Development had requested the 

FBI to conduct a full field investigation 

under the provisions of Public Law 298, The 

Foreign Assistance Act of 1961, as amended. 

David Lasser was interviewed by the FBI in 

1963 under the provisions of Executive Order 

10450 . . . . The first serial is dated 

December 12, 1963, and the last serial in 

this file is dated January 29, 1976. 

FBIHQ main file, 126-706 consists of one 

section concerning a name check request on 

David Lasser for clearance for access to 

highly classified material by National 

Security Resources Board. This 

classification covers background 
5 

investigation conducted on individuals who 

are to be assigned to duties under the 

International Development Program. The first 

and last serials are dated November 14, 1950, 

and November 15, 1950, respectively. 

FBIHQ main file 65-66314, (Espionage) 

consisting of one section which contains 

documentation based on information received 

concerning the possibility that David Lasser 

could be some individual who could divert 

information to the detriment of the defense 

of the United States. No investigation was 

conducted. This file was opened on September 

22, 1960 and closed on September 27, 1960. 

FBIHQ main file, 47-13920 is a two-page file 

which contains information that a 

representative of WAA had made a claim that 

he had authority from the Federal Government 

to represent individuals in claims of various 

municipalities. This file was opened and 

closed on February 19, 1938. This 

classification is entitled "Impersonation" 

and covers violations of Title 18, U.S.C., 

Sections 912, 913, 915, and 916. 

FBIHQ main file, 61-10652 (two sections) was 

initially compiled to determine if David 

Lasser might act as an informant for the FBI 

or if he would be willing to supply details 

concerning Communist Party activities in WAA. 

The first serial of this file is dated June 

20, 1940, and the last document in the file 

is dated February 8, 1951. 

Declaration of Special Agent Robert A. Moran, App. at 60-63 

(footnotes omitted) [hereinafter all citations to the Appendix 

refer to the Moran declaration]. 

 The FBI asserts that its records relating to the WAA 

total approximately 9,200 pages and its records on David Lasser 

contain approximately 1,200 pages. As of May 18, 1991, the FBI 

had released to Davin only 113 pages regarding the WAA and 150 

pages on Lasser. 
6 

 In April 1992, Davin filed a complaint for injunctive 

relief demanding the production of the documents. Subsequently, 

pursuant to an agreement between the parties, Davin and the 

government submitted a joint motion to stay the case for 130 days 

to permit the government to submit a Vaughn index.1 This motion 

stipulated that the FBI had reviewed 6,889 documents pursuant to 

Davin's FOIA request, had released 2,970 pages to Davin, and 

claimed exemptions to the remaining 3,919 pages. The joint 

motion further provided that the government would select 

approximately 500 documents (roughly every fourteenth or 

fifteenth page), compile a Vaughn index and submit it to the 

court with a motion for summary judgment. 

 Included in the government's subsequent motion for 

summary judgment was a declaration by FBI Special Agent Robert 

Moran. The purpose of Moran's declaration was to provide the 

court and Davin with a description of the material being withheld 

and justifications for the government's assertions of FOIA 

exemptions to withhold certain information contained in the 

records. The declaration consisted of correspondences concerning 

Davin's request, an explanation of the FBI's central records 

system and electronic surveillance index, a list of records 

pertaining to Davin's request, a sampling and definition of 

 

1A Vaughn index is an index correlating each withheld document, 

or a portion thereof, with a specific exemption and relevant part 

of an agency's justification for nondisclosure. The Vaughn index 

is a tool designed to aid the court in determining whether the 

agency has properly withheld the information requested. See

Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (Vaughn I), cert.

denied, 415 U.S. 977, 94 S. Ct. 1564 (1974). 
7 

documents, a detailed explanation of the coded format used for 

justification of deleted material, and the justification for 

redacted materials. 

 A sampling of 500 pages was selected from the files. 

Each page was identified with a document number and indicated the 

file from which it came. An explanation of the types of 

documents in the sampling was also supplied. Portions of the 

documents were redacted. Located in proximity to the redacted 

material was a series of letters and numbers which corresponded 

to specific FOIA exemptions. In those instances where an entire 

page was redacted, justification code numbers for the withholding 

were substituted for the deleted page. 

 To determine the pertinent justification for deleted 

material on each processed document, the reader would refer to 

the document in question, note the code number adjacent to the 

deleted material and refer to the corresponding code categories. 

The memorandum then listed twenty-seven justification categories 

for withholding information, along with an explanation of the 

various categories. 

 Moran's declaration listed the FBI Main Files regarding 

Lasser and the WAA, but did not contain any factual description 

of the specific documents and portions of the documents withheld. 

Instead, Special Agent Moran offered generic explanations of the 

"justification categories" used to encode the Vaughn index. No 

specific index was created to factually link the generic 

descriptions with the encoded deletions, and the explanations 

themselves did not refer to Lasser or the WAA or any other fact 
8 

connected with this action. No attempt was made to provide an 

individual rationale for the withholding of specific information.

 

 The government asserted that of the 10,400 pages 

identified (9,200 on the WAA and 1,200 on Lasser), 2,970 had been 

released to Davin and that the remaining pages were being 

withheld under the following FOIA exemptions: (1) Category 

(b)(7)(C) Unwarranted Invasion of Personal Privacy; (2) Category 

(b)(7)(D) Confidential Source Material; (3) Category (b)(7)(E) 

Investigative Techniques and Procedures; and (4) Category (b)(2) 

Information related Solely to the Internal Personnel Rules and 

Practices of an Agency. 

 Following receipt of the declaration and exhibits, 

Davin filed a motion to compel production of documents for in 

camera review, arguing that the district court could not make an 

accurate determination of the validity of the redactions based 

upon the government's Vaughn index without review of the 

documents. Davin asserted that the government had failed to 

provide any factual information describing the individual 

documents withheld and thus failed to demonstrate the 

applicability of the exemptions it claimed. 

 The district court ordered an evidentiary hearing in 

which Agent Moran testified about twenty-five of the 

approximately 7,400 documents that had been withheld. These 

documents were selected by Davin from the "Treason or Misprision 

of Treason" file. Twenty-two of these pages were blackened out 

in their entirety. Agent Moran described the various categories 
9 

under which the documents were withheld, although he did not 

testify to the contents of the withheld documents themselves. 

 The district court held that Agent Moran's testimony, 

together with the Vaughn index, demonstrated with "reasonable 

specificity" why the documents were exempt from disclosure. 

Accordingly, the district court granted the government's motion 

for summary judgment and denied Davin's motion to compel in 

camera examination. This appeal followed. 

II. 

 A two-tiered test governs our review of an order of the 

district court granting summary judgment in proceedings seeking 

disclosure of information under FOIA. We must "first decide 

whether the district court had an adequate factual basis for its 

determination." McDonnell v. United States, 4 F.3d 1227, 1242 

(3d Cir. 1993) (citing Patterson by Patterson v. FBI, 893 F.2d 

595, 600 (3d Cir.), cert. denied, 498 U.S. 812, 111 S. Ct. 48 

(1990)). This review is de novo and requires us to examine the 

affidavits below to determine "whether the agency's explanation 

was full and specific enough to afford the FOIA requester a 

meaningful opportunity to contest, and the district court an 

adequate foundation to review, the soundness of the withholding." 

Id. (quoting King v. Department of Justice, 830 F.2d 210, 217-18 

(D.C. Cir. 1987)). 
10 

 After reviewing the affidavits, "[i]f this Court 

concludes that the affidavits presented a sufficient factual 

basis for the district court's determination, it must then decide 

whether that determination was clearly erroneous." Id.

(citations omitted). Factual findings are clearly erroneous "'if 

the findings are unsupported by substantial evidence, lack 

adequate evidentiary support in the record, are against the clear 

weight of the evidence or where the district court has 

misapprehended the weight of the evidence.'" Id. (quoting Lame 

v. Department of Justice, 767 F.2d 66, 70 (3d Cir. 1985) (Lame 

II)). 

 The district court exercised jurisdiction in this 

matter pursuant to 5 U.S.C. § 552(a)(4)(B) (1988) and 28 U.S.C. 

§1331 (1988). Our jurisdiction in this appeal rests on 28 U.S.C. 

§ 1291 (1988). 

III. 

 Congress enacted the Freedom of Information Act, 5 

U.S.C. § 552, in order "to facilitate public access to Government 

documents." United States Dep't of State v. Ray, 502 U.S. 164, 

173, 112 S. Ct. 541, 547 (1991). Premised on the belief that "an 

informed electorate is vital to the proper operation of a 

democracy," FOIA was intended to create an expedient tool for 

disseminating information and holding the government accountable. 

Coastal States Gas Corp. v. Department of Energy, 644 F.2d 969, 

974 (3d Cir. 1981) (quoting S. Rep. No. 813, 89th Cong., 1st 

Sess. 3 (1965)). Consistent with this purpose, FOIA requires 
11 

governmental agencies to make promptly available any records 

requested unless the requested information is exempt from 

disclosure under one of the nine specific exemptions set forth in 

the FOIA statute itself. 5 U.S.C. § 552(b) (1988 & Supp. V 

1993). 

 The Act creates a strong presumption in favor of 

disclosure, Department of Air Force v. Rose, 425 U.S. 352, 361, 

96 S. Ct. 1595, 1599 (1976), and requires the district court to 

conduct a de novo review of a government agency's determination 

to withhold requested information. 5 U.S.C. § 552(a)(4)(B). The 

agency has the burden of showing that a statutory exemption 

applies. Id. Moreover, any reasonably segregable portion of a 

record must be made available to the person requesting the 

record. 5 U.S.C. § 552(b). 

 The review of FOIA cases "is made difficult by the fact 

that the party seeking disclosure does not know the contents of 

the information sought and is, therefore, helpless to contradict 

the government's description of the information or effectively 

assist the trial judge." Ferri v. Bell, 645 F.2d 1213, 1222 (3d 

Cir. 1981), modified, 671 F.2d 769 (3d Cir. 1992). In order to 

"transform a potentially ineffective, inquisitorial proceeding 

against an agency that controls information into a meaningful 

adversarial process," the reviewing court may order the 

government to prepare a "Vaughn" index, identifying each document 

withheld, the statutory exemption claimed, and a particularized 

description of how each document withheld falls within a 

statutory exemption. Coastal States, 644 F.2d at 984. We have 
12 

adopted the principles and procedures outlined in Vaughn. See, 

e.g., Ferri, 645 F.2d at 1222 & n.11. 

 The function of a Vaughn index and public affidavit is 

to establish a detailed factual basis for application of the 

claimed FOIA exemptions to each of the documents withheld. In 

McDonnell v. United States, 4 F.3d 1227 (3d Cir. 1993), we 

explained: 

The significance of agency affidavits in a 

FOIA case cannot be underestimated . . . . 

Affidavits submitted by a governmental agency 

in justification for its exemption claims 

must therefore strive to correct, however 

imperfectly, the asymmetrical distribution of 

knowledge that characterizes FOIA litigation. 

The detailed public index which in Vaughn we 

required of withholding agencies is intended 

to do just that . . . . Thus, when an agency 

seeks to withhold information, it must 

provide "a relatively detailed justification, 

specifically identifying the reasons why a 

particular exemption is relevant and 

correlating those claims with the particular 

part of a withheld document to which they 

apply." 

Id. at 1241 (quoting King, 830 F.2d at 218-19). 

 While there is no set formula for a Vaughn index, the 

hallmark test is "that the requester and the trial judge be able 

to derive from the index a clear explanation of why each document 

or portion of a document withheld is putatively exempt from 

disclosure." Hinton v. Department of Justice, 844 F.2d 126, 129 

(3d Cir. 1988). An agency is entitled to summary judgment when 

the agency's affidavits: 

describe the withheld information and the 

justification for withholding with reasonable 

specificity, demonstrating a logical 

connection between the information and the 
13 

claimed exemption . . ., and are not 

controverted by either contrary evidence in 

the record nor by evidence of agency bad 

faith. 

American Friends Serv. Comm. v. Department of Defense, 831 F.2d 

441, 444 (3d Cir. 1987) (quoting Abbotts v. Nuclear Regulatory 

Comm., 766 F.2d 604, 606 (D.C. Cir. 1985) (internal quotations 

and citations omitted)). 

A. 

 The fundamental inquiry in this case centers on whether 

the "categorical" method of indexing utilized by the government 

constitutes an adequate Vaughn index. The government offered the 

declaration of Agent Moran as its Vaughn index. The Moran 

declaration described the FBI's generalized FOIA procedures, 

including a summary of exemption "justification categories." It 

set forth a detailed explanation of the justification categories 

used to redact the material included in the declaration. Each 

justification category was denoted by a three or four letter 

code. These codes appeared next to the redacted portions of the 

exhibits. The government maintains that this declaration, in 

conjunction with Agent Moran's testimony, was a sufficiently 

adequate Vaughn index that permitted the district court to review 

all of the exemption claims advanced. 

 In its brief the government provided representative 

examples of the categorical indexing method it used. For 

instance, the declaration explained that code "b7D-3" appearing 

next to the first redacted paragraph means that the information 
14 

was withheld because it was provided to the FBI by a source who 

had "received an express promise that it would be held in 

confidence" and contained information that could lead to the 

source's identity. App. at 87. The declaration further 

explained that disclosure had the potential of causing "great 

harm to the source," and of harming the FBI because of the 

"chilling effect on the activities and cooperation of other 

sources." App. at 88. As a second example, the government 

demonstrated that the list of names and addresses provided by the 

confidential source were withheld under category "b7C-6." The 

declaration explained that this category means that the 

information was withheld to prevent an unwarranted invasion of 

privacy of the individuals named, since disclosure could 

"announce to the world that they were of investigative interest 

to the FBI and therefore permit derogatory inferences to be made 

therefrom." App. at 79. 

 The government asserts that the use of a coded index 

system sufficiently fulfills the functions served by the classic 

Vaughn index, but in a more efficient and clear manner. Davin 

argues that such a categorical approach, without the inclusion of 

specific factual information that correlates the claimed 

exemptions to the withheld documents, is not a sufficient Vaughn

index. We agree with Davin. 

 In McDonnell we held that in order for the FBI to 

fulfill its burden to establish that materials withheld are 

exempt from FOIA, "[t]he agency may meet this burden by filing 

affidavits describing the material withheld and detailing why it 
15 

fits within the claimed exemption." McDonnell, 4 F.3d at 1241 

(emphasis added) (citing King, 830 F.2d at 217-18). See also

Lame v. United States Dep't of Justice, 654 F.2d 917, 928 (3d 

Cir. 1981) (Lame I) (the district court "should have had an 

explanation by the FBI of why in each case disclosure would 

result in embarrassment or harassment either to the individual 

interviewed or to third parties" (emphasis added)). This 

precedent requires that the agency provide the "connective 

tissue" between the document, the deletion, the exemption and the 

explanation. It is insufficient for the agency to simply cite 

categorical codes, and then provide a generic explanation of what 

the codes signify. See King, 830 F.2d at 223-34 ("A withholding 

agency must describe each document or portion thereof withheld, 

and for each withholding it must discuss the consequences of 

disclosing the sought-after information. . . . Categorical 

description of redacted material coupled with categorical 

indication of anticipated consequences of disclosure is clearly 

inadequate." (emphasis in original)(footnote omitted)). 

 In the case at hand, the government's references to 

causing "great harm to the source," App. at 88, and to the 

possibility that disclosure could "announce to the world that 

they were of investigative interest to the FBI and therefore 

permit derogatory inferences to be made therefrom," App. at 79, 

are generic explanations broad enough to apply to any FOIA 

request. They are not tied to the content of the specific 

redactions. The justification codes and the explanations offered 

by the government lack an explanation of how the release of the 
16 

information would violate the privacy interests and pose 

potential risk to certain individuals. Moreover, throughout his 

testimony, Agent Moran reiterated the broad categorical 

explanations recited in his declaration; he did not refer to 

specific facts. Thus, Agent Moran's testimony sheds no new light 

on the government's reasons for nondisclosure. 

 While the use of the categorical method does not per se

render a Vaughn index inadequate, an agency using justification 

codes must also include specific factual information concerning 

the documents withheld and correlate the claimed exemptions to 

the withheld documents. Compare Keys v. United States Dep't of 

Justice, 830 F.2d 337, 350 (D.C. Cir. 1987) (upholding use of 

indexing system where "the affidavit placed each document into 

its historical and investigative context") with King, 830 F.2d at 

221 (similar coding system found wanting "because we are left 

with no contextual description for documents or substantial 

portions of documents withheld in their entirety") and Wiener v. 

FBI, 943 F.2d 972, 978-79 (9th Cir. 1991) ("boilerplate" 

explanations of coded index found inadequate since "[n]o effort 

is made to tailor the explanation to the specific document 

withheld"), cert. denied, U.S. , 112 S. Ct. 3013 (1992). As 

the Court of Appeals for the D.C. Circuit warned: "the goal of 

descriptive accuracy is not to be sacrificed to the niceties of a 

particular classification scheme." King, 830 F.2d at 225. Thus, 

"a coding system might be employed to indicate applicability of a 

given response to more than one segment of redacted material," 

but only "so long as the information supplied remains responsive 
17 

to each deleted segment without becoming categorical in tenor." 

Id. at 224 (emphasis added). 

 The Vaughn index provided by the government affords 

Davin little or no meaningful opportunity to argue for release of 

particular documents. Indeed, the index provides no information 

about particular documents that might be useful in evaluating the 

propriety of the decision to withhold. Because of the paucity of 

factual information related to the district court, the 

categorical justification codes could not provide a sufficient 

factual basis from which the district court could make its 

determination. Accordingly, on the record before us, we hold 

that the district court could not fulfill its duty of ruling on 

the applicability of the claimed exemptions on the basis of the 

coded indexing system utilized by the government for its Vaughn

index. 

B. 

 Davin further contends that the district court erred in 

failing to require the FBI to release all reasonably segregable 

portions of the sample documents. Davin also maintains that the 

FBI is required under FOIA to provide him with all reasonably 

segregable material of all the 10,000 pages of material, not just 

the sampled material. FOIA mandates that "[a]ny reasonable 

segregable 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. § 552(b). In 

determining segregability, courts must construe the exemptions 
18 

narrowly with the emphasis on disclosure. Wightman v. Bureau of 

Alcohol, Tobacco & Firearms, 755 F.2d 979, 982 (1st Cir. 1985). 

The district court found that the FBI complied with its 

obligation. 

 It is the agency's burden to prove that the withheld 

portions are not segregable from the non-exempt material. 5 

U.S.C. § 552(a)(4)(B). In the case at bar, the only evidence 

submitted by the government in support of its position was Agent 

Moran's conclusory statement that "[e]very effort has been made 

to provide the plaintiff with all reasonably segregable portions 

on [sic] the sampled material." App. at 67. Nowhere in Moran's 

declaration did he describe the process by which he determined 

that all reasonably segregable material of each of the withheld 

documents or portions of documents had been released. Nor did 

the government provide a factual recitation of why certain 

materials are not reasonably segregable. 

 In its brief the government points, as an example, to 

Exhibits C-1 through C-7 which Agent Moran explained had been 

provided by a source under the express promise of 

confidentiality. Government's Brief at 19-20. According to the 

government, these documents contained a narrative in which a 

number of individuals involved with the WAA were named. Exhibit 

C-1 bore two coded references: "b7C-6" and "b7D-3." The 

government explained that category b7C-6 refers to the names of 

individuals who are of investigative interest to the FBI. 

According to Moran's declaration, the release of this information 

would constitute an unwarranted invasion of privacy. App. at 79-
19 

80. Category b7D-3 indicates that the information was provided 

by an individual who had received an express promise of 

confidentiality. App. at 87. The government notes that a 

portion of C-8 was released because the identity of the 

confidential source could not be ascertained. 

 This representative example provided by the government 

itself, as an illustration of its proper efforts to provide Davin 

with all reasonably segregable information, in fact reflects the 

inadequacy of the government's efforts. The government fails to 

indicate why the privacy interests at stake could not be 

protected simply by redacting particular identifying information. 

Without some further elaboration of the document's contents, 

Davin is unable to dispute the FBI's assertion that more 

information is not segregable. Cf. Church of Scientology Int'l 

v. United States Dep't of Justice, 30 F.3d 224, 232 n.11 (1st 

Cir. 1994) (the government "needs to provide more than [an] 

unsupported conclusion to justify withholding the whole document. 

Is the document full of personal anecdotes, whose perspective 

would tend to reveal the declarant, thus supporting this 

conclusion? Or does the document simply give one individual's 

description of the way the Church generally treats members, and 

thus arguably include material that could be segregated from the 

identifying information?"). 

 The Moran declaration is comprised of assertions that 

documents were withheld because they contain the type of 

information generally protected by a particular exemption. The 

statements regarding segregability are wholly conclusory, 
20 

providing no information that would enable Davin to evaluate the 

FBI's decisions to withhold. On remand, the government must 

provide an adequate factual basis for the district court to 

determine whether Davin has been afforded all reasonably 

segregable information.2 

 Furthermore, the government must provide Davin with all

reasonably segregable non-exempt information, not just the nonexempt information found in the sampled documents. The 

government maintains that it is only required to produce all 

reasonably segregable material from the sampled material. It 

claims that because Davin agreed to a representative sampling of 

approximately 500 pages of the 6,689 documents selected he 

"should abide by his decision." Government's Brief at 19. 

 

2In addition to making findings without sufficient evidentiary 

support, the district court may have also erred in holding that 

more information was not reasonably segregable. Although our 

scope of review on appeal is limited in this context, see

McDonnell, 4 F.3d at 1242, it appears that certain information 

could be disclosed without jeopardizing possibly exempt 

information. We note the colloquy between Agent Moran and 

counsel for Davin regarding the deletions of certain headings in 

the table of contents of a 200 page report. Agent Moran 

testified that the deletions did not contain the name of a 

confidential source or confidential information, but rather the 

headings were redacted "because some of the information would 

indicate possibly a particular area of the country" from where 

the informant was operating and might, therefore, lead the 

requester back to the identity of a particular confidential 

source. App. at 618. We do not find it likely that a reference 

to a particular "area of the country" would lead to the identity 

of individuals who were given promises of confidentiality. On 

remand, if after receiving a sufficient factual basis the court 

determines that certain information is exempt from disclosure, 

the district court should reexamine whether seemingly nonidentifying information such as this geographical information 

should also be withheld. 
21 

 The purpose of the Vaughn index is to help specify in a 

large document which portions of the document are disclosable and 

which are allegedly exempt. Vaughn v. Rosen, 484 F.2d 820, 827 

(D.C. Cir. 1973) (Vaughn I), cert. denied, 415 U.S. 977, 94 S. 

Ct. 1564 (1974). The indexing system "subdivide[s] the document 

under consideration into manageable parts," so that once the 

issues are focused, the reviewing court will have an easier task 

"rul[ing] on each element of the itemized list" than it would if 

the "agency were permitted to make a generalized argument in 

favor of exemption." Id. 

 Courts have upheld the use of a representative sample, 

such as the sample stipulated to in this case. See, e.g., 

Weisberg v. United States Dep't of Justice, 745 F.2d 1476, 1490 

(D.C. Cir. 1984); Vaughn v. Rosen, 523 F.2d 1136, 1140 (D.C. Cir. 

1975) (Vaughn II). Nevertheless, any decision as to those 

documents is applicable to all of the documents at issue. See

Vaughn II, 523 F.2d at 1140 (noting that parties stipulated that 

any decision regarding the representative sample is applicable to 

all of the documents). Accordingly, on remand the district court 

should reexamine the material in the sample, and any rulings it 

makes regarding those materials must then be applied to the 

entire body of the requested information. The government is then 

obligated to provide Davin all the reasonably segregable material 

of all the 10,000 pages requested, based upon the district 

court's ruling. 

 These two holdings regarding general deficiencies in 

the government's Vaughn index alone require reversal of the 
22 

district court's order and remand for further fact finding. 

However, because on remand the district court may reach 

determinations of specific exemptions, we find it instructive to 

clarify certain contested issues and delineate the proper legal 

standards for future resolution. 

IV. 

 For the majority of the withheld information, the 

government has claimed exemptions under 5 U.S.C. § 552(b)(7), 

which applies to records or information compiled for law 

enforcement purposes. Section 552(b)(7) provides, in relevant 

part, that the following is exempt from disclosure: 

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, . . . 

which furnished information on a confidential 

basis, and, in the case of a record or 

information 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, information 

furnished by a confidential source, (E) would 

disclose techniques and procedures for law 

enforcement investigations or prosecutions . 

. . if such disclosure could reasonably be 

expected to risk circumvention of the law . . 

. . 

5 U.S.C. § 552(b)(7) (1988 & Supp. V 1993). Thus, in order to 

prevail on an Exemption 7 claim, the government must bear its 

burden of demonstrating for every record that: (1) the 
23 

information the FBI seeks to conceal was "compiled for law 

enforcement purposes," and (2) disclosure would produce one of 

the specified harms enumerated in the statute. United States 

Dep't of Justice v. Landano, U.S. , , 113 S. Ct. 2014, 

2019 (1993); Federal Bureau of Investigation v. Abramson, 456 

U.S. 615, 622, 102 S. Ct. 2054, 2059-60 (1982). 

A. 

 In reviewing the government's withholding of records 

under any subsection of § 552(b)(7), the district court must 

first be satisfied that those materials qualify as "records or 

information compiled for law enforcement purposes."3 There is 

disagreement among the courts of appeals about how to make this 

threshold determination. 

 

3While the focus of this case is upon documents compiled for 

putative criminal investigations, we note that "records or 

information compiled for law enforcement purposes" are not 

limited to records or information compiled for criminal 

investigations. While criminal investigation is certainly one 

law enforcement purpose, there are also additional law 

enforcement purposes which are not necessarily criminal in 

nature. Indeed, the statute itself treats both "criminal 

investigation[s]" and "national security intelligence 

investigation[s]" as subsets of law enforcement records in 

Exemption 7(D). Thus, other agencies that have some law 

enforcement duties, such as the Equal Employment Opportunity 

Commission in investigating violations of Title VII, the Internal 

Revenue Service in enforcing the tax laws, and the National Labor 

Relations Board in conducting unfair labor practice proceedings, 

may also justify withholding information under Exemption 7. Note, 

however, that an agency whose principal function is not law 

enforcement bears the burden of proving that "the records it 

seeks to shelter under Exemption 7 were compiled for adjudicatory 

or enforcement purposes." Stern v. FBI, 737 F.2d 84, 88 (D.C. 

Cir. 1984); see also infra at [typescript at 26-28] 

(discussing Committee on Masonic Homes v. NLRB, 556 F.2d 214, 

218-19 (3d Cir. 1977)). 
24 

 The government suggests that we follow the courts who 

have adopted a per se rule, under which all records compiled by 

law enforcement agencies such as the FBI qualify as "records 

compiled for law enforcement purposes" pursuant to the (b)(7) 

exception. See Jones v. Federal Bureau of Investigation, 41 F.3d 

238, 245-46 (6th Cir. 1994) (determining that the per se rule 

comports more fully with the policies Congress enacted in FOIA); 

Ferguson v. FBI, 957 F.2d 1059, 1070 (2d Cir. 1992) (district 

court should not engage in factual inquiry as to legitimacy of 

law enforcement purpose); Curran v. Department of Justice, 813 

F.2d 473, 475 (1st Cir. 1987) ("[T]he investigatory records of 

law enforcement agencies are inherently records compiled for 'law 

enforcement purposes' within the meaning of Exemption 7." 

(citation omitted)); Kuehnert v. FBI, 620 F.2d 662, 666 (8th Cir. 

1980) (a showing of law enforcement purpose of a particular 

investigation is not a precondition to FBI's invocation of 

Exemption 7). 

 In contrast, the Court of Appeals for the District of 

Columbia Circuit has rejected a per se rule, and adopted a twopart test that must be satisfied in order for a law enforcement 

agency to pass the Exemption 7 threshold. See Pratt v. Webster, 

673 F.2d 408 (D.C. Cir. 1982). In Pratt, the court described the 

two "critical conditions" of what has been named the "rational 

nexus" rule: 

First, the agency's investigatory activities 

that give rise to the documents sought must 

be related to the enforcement of federal laws 

or to the maintenance of national security.

To satisfy this requirement of a "nexus," the 
25 

agency should be able to identify a 

particular individual or a particular 

incident as the object of its investigation 

and the connection between that individual or 

incident and a possible security risk or 

violation of federal law. The possible 

violation or security risk is necessary to 

establish that the agency acted within its 

principal function of law enforcement, rather 

than merely engaging in a general monitoring 

of private individuals' activities. . . . 

 Second, the nexus between the 

investigation and one of the agency's law 

enforcement duties must be based on 

information sufficient to support at least "a 

colorable claim" of its rationality. . . . 

Such an agency, in order to carry out its 

functions, often must act upon unverified 

tips and suspicions based upon mere tidbits 

of information. A court, therefore, should 

be hesitant to second-guess a law enforcement 

agency's decision to investigate if there is 

a plausible basis for its decision. Nor is 

it necessary for the investigation to lead to 

a criminal prosecution or other enforcement 

proceeding in order to satisfy the "law 

enforcement purpose" criterion. . . . 

 Thus, . . . [i]n order to pass the FOIA 

Exemption 7 threshold, such an agency must 

establish that its investigatory activities 

are realistically based on a legitimate 

concern that federal laws have been or may be 

violated or that national security may be 

breached. Either of these concerns must have 

some plausible basis and have a rational 

connection to the object of the agency's 

investigation. 

Pratt, 673 F.2d at 420-21 (emphasis in the original) (citations 

and footnotes omitted). See also King, 830 F.2d at 229 (FBI 

records are not deemed law enforcement records simply by virtue 

of the function that the FBI serves, but rather the two-prong 

Pratt test must be applied to determine the threshold showing 
26 

requisite). The Court of Appeals for the Ninth Circuit has also 

adopted a "rational nexus" standard. See, e.g., Wiener, 943 F.2d 

at 985 ("No withholding under any of the exemptions listed in 

section 552(b)(7) is valid unless the withholding agency 

establishes a '"rational nexus" between its law enforcement 

duties and the document for which Exemption 7 is claimed.'" 

(citations omitted)). 

 We have not directly ruled on what must be established 

in order to meet the threshold requirement. We find, however, 

some guidance from our prior precedents. In Committee on Masonic 

Homes v. NLRB, 556 F.2d 214 (3d Cir. 1977), an employer had 

requested from the National Labor Relations Board ("NLRB") all 

union authorization cards that had been submitted by the union as 

evidence of support. The NLRB claimed that the cards were exempt 

from disclosure under Exemption 7. The NLRB argued that it had 

an enforcement purpose -- enforcing the National Labor Relations 

Act -- for which the union authorization cards under question 

were compiled. We held that under the circumstances of that 

case, there was no "law enforcement purpose" pursuant to 

Exemption 7, because "'law enforcement purposes' must relate to 

some type of formal proceedings, and one that is pending." Id. at 

219; see also Ferri, 645 F.2d at 1223 ("[T]he 'investigatory 

records' exemption is to be construed literally. It contemplates 

files compiled with a specific, formal proceeding or 

investigation in mind."). 

 The precedential force of Masonic Homes can be 

questioned for two reasons. First, we decided Masonic Homes
27 

prior to the 1986 Amendment to FOIA that replaced the language 

"investigatory records compiled for law enforcement purposes," 

with the present language of § 552(b)(7), "records or information

compiled for law enforcement purposes." This amended language 

can appear to have been intended to broaden the exemption's 

reach. We learn from the legislative history, however, that 

Congress' action was not intended to modify the threshold showing 

of law-enforcement purpose. The report of the Senate Judiciary 

Committee on S. 774, 98th Cong., 1st Sess. (1983), stated that 

the amendment "does not affect the threshold question of whether 

'records or information' withheld under (b)(7) were 'compiled for 

law enforcement purposes.' This standard would still have to be 

satisfied in order to claim the protection of the (b)(7) 

exemption." S. Rep. No. 221, 98th Cong., 1st Sess. 23 (1983), 

reprinted in relevant part in, 132 Cong. Rec. H9466 (daily ed. 

Oct. 8, 1986); see King, 830 F.2d at 229 n.141 (providing 

detailed legislative history of the 1986 Amendment to Exemption 

7). Accordingly, we can be assured that our holding in Masonic 

Homes has not been undercut by legislative fiat. 

 Second, because the withholding agency in Masonic Homes

was the NLRB, it is unclear whether our conclusion that "law 

enforcement purposes" must relate to some type of formal 

enforcement proceeding, has an application to an agency whose 

principal function is criminal law enforcement. See Pratt, 673 

F.2d at 421 n.33 ("We believe that the Third Circuit's conclusion 

that '"law enforcement purposes" must relate to some type of 

enforcement proceeding, and one that is pending,' has no 
28 

application to an agency whose principal function is criminal law 

enforcement. Therefore, we also dismiss the First Circuit's 

concern . . . that the need to shield legitimate law enforcement 

efforts from harmful FOIA disclosures might lead to frivolous 

prosecutions." (citations omitted)). 

 While we are not bound to extend our holding in Masonic 

Homes to a law enforcement agency such as the FBI, at minimum, 

our statements in Masonic Homes indicate a rejection of a per se 

rule. Accordingly, we must devise a test to apply to law 

enforcement agencies that requires the agency to sustain its 

burden of establishing the threshold element of Exemption 7. 

 We believe the preferable test is an adaptation of the 

two-prong "rational nexus" test articulated by the Court of 

Appeals for the District of Columbia Circuit in Pratt. Under 

this test, the government must identify a particular individual 

or incident as the object of the investigation and specify the 

connection of the individual or incident to a potential violation 

of law or security risk. The agency must then demonstrate that 

this relationship is based upon information "sufficient to 

support at least a 'colorable claim' of its rationality." Pratt, 

673 F.2d at 421. 

 The D.C. Circuit has explained that the threshold 

showing required by Pratt is an "objective" one, and "suffices to 

establish the exemption only if it is unrefuted by persuasive 

evidence that in fact another, nonqualifying reason prompted the 

investigation," such as where an investigation is conducted "for 
29 

purposes of harassment." Shaw v. FBI, 749 F.2d 58, 63-64 (D.C. 

Cir. 1984). 

 In the present case, the FBI submitted a description of 

the nine files pertaining to Davin's FOIA request in the Moran 

declaration, as quoted above. See supra at [typescript at 3-

5]. The declaration clearly identifies David Lasser and the WAA 

as the targets of the investigations, thereby fulfilling the 

first prong of the Pratt test. The declaration, however, plainly 

failed to specify the connection between Lasser and the WAA, and 

the possible security risk or violation of federal law. 

 As a preliminary matter, the declaration only contained 

a general description of the files and did not describe the nexus 

between each document and a particular investigation. Indeed, 

the government failed even to identify the investigations to 

which each document in the nine FBI files pertained. 

 Furthermore, the declaration does little more than cite 

to the criminal statutes, executive orders, and public laws 

pursuant to which the investigations were undertaken, "presumably 

indicating that somewhere within the parameters of these general 

provisions were criminal acts that the FBI suspected [Lasser and 

the WAA] of committing." King, 830 F.2d at 230. While the 

second prong inquiry is "necessarily deferential" to the agency, 

Pratt, 673 F.2d at 421, we believe that the simple recitation of 

statutes, orders and public laws is an insufficient showing of a 

rational nexus to a legitimate law enforcement concern. The FBI 

has failed to meet its burden in the district court because 

neither Agent Moran's declaration nor his testimony provide any 
30 

detail concerning the supposed law enforcement activities that 

generated each of the documents in the Vaughn index. The FBI 

must come forward with additional evidence to support its claim 

of a law enforcement purpose. 

 In addition, we note that even the skeletal 

descriptions of the files provided by Agent Moran cast doubt on 

the government's assertion that the files were related to a law 

enforcement purpose: while the nine files cover investigations 

spanning over forty years, the government has not pointed to a 

single arrest, indictment or conviction. 

 We acknowledge that the Supreme Court has indicated 

there is no requirement for the compilation of information to be 

effected by a specific time. See John Doe Agency v. John Doe 

Corp., 493 U.S. 146, 153, 110 S. Ct. 471, 476 (1989). Nor do we 

require evidence of an actual indictment or conviction in order 

for the government to fulfill its burden of proving that its 

investigation pertained to a law enforcement purpose. However, 

on the record before us, the government must allege additional 

specific facts that demonstrate "the agency was gathering 

information with the good faith belief that the subject may 

violate or has violated federal law," and was not "merely 

monitoring the subject for purposes unrelated to enforcement of 

the law." Lamont v. Department of Justice, 475 F. Supp. 761, 773 

(S.D.N.Y. 1979) (citing, inter alia, Masonic Homes, 556 F.2d at 

219). If the government's investigation did not ultimately 

result in any arrests, indictments or other proceedings, then the 

government may sustain its burden under § 552(b)(7) by explaining 
31 

why it decided not to follow through with the investigations. The 

Vaughn index in this case, however, provides Davin with no 

information whatsoever about the initiation, breadth or results 

of the investigations. The paucity of information about these 

lengthy investigations casts doubt on the government's assertion 

that withheld documents pertain to law enforcement 

investigations, and has made impossible Davin's challenge to the 

government's claim. 

 The Court of Appeals for the Ninth Circuit was faced 

with similar circumstances in Wiener, where the FBI refused to 

release files to a historian concerning political investigations 

of John Lennon. In that case, the FBI claimed Exemption 7, 

alleging that: 

John Lennon was under investigation for 

possible violations of the Civil Disobedience 

Act of 1968, 18 U.S.C. § 231 (1988), and the 

Anti-Riot Act, 18 U.S.C. § 2101 (1988), 

because of his association with a radical 

group known as the Election Year Strategy 

Information Center (EYSIC). 

Wiener, 943 F.2d at 985-96. The court rejected the FBI's claims, 

holding that: 

The Civil Disobedience Act and the Anti-Riot 

Act are very broad criminal statutes, 

prohibiting a wide variety of conduct. 

Citations to these statues do little to 

inform Wiener of the claimed law enforcement 

purpose underlying the investigation of John 

Lennon. Without providing Wiener with 

further details of the kinds of criminal 

activity of which John Lennon was allegedly 

suspected, Wiener cannot effectively argue 

that the claimed law enforcement purpose was 

in effect a pretext. 
32 

Id. at 986. 

 The statutes that criminalize treason, misprision of 

treason, recruiting for service against the United States, and 

the other criminal activities that the FBI was "investigating" 

are no less broad than the Civil Disobedience Act or the AntiRiot Act. The FBI's blanket references to these statutes do not 

adequately inform Davin of the claimed law enforcement purposes 

of the FBI investigation of the WAA and Lasser. Accordingly, on 

remand, the government must provide additional facts regarding 

the law enforcement investigations implicated by each of the 

documents withheld under any (b)(7) exemption. 

B. 

 If, on remand, the district court concludes that the 

government has demonstrated a rational nexus between its law 

enforcement duties and the particular document or portions 

withheld, then the district court will reach the specific 

exemptions of subsections of § 552(b)(7). The government asserts 

that information was exempt from disclosure under subsection 

(7)(C) Unwarranted Invasion of Personal Privacy, (7)(D) 

Confidential Source Material, and (7)(E) Investigative Techniques 

and Procedures. We will address each exemption seriatim. 

1. § 552(b)(7)(C) 

 Exemption 7(C) permits withholding of records or 

information compiled for law enforcement purposes to the extent 

that production "could reasonably be expected to constitute an 
33 

unwarranted invasion of personal privacy." 5 U.S.C. 

§552(b)(7)(C). Agent Moran identified nine privacy interests 

that implicated Exemption 7(C): (1) the identities or identifiers 

of FBI personnel; (2) the names and identifying data of financial 

institution or commercial enterprise employees; (3) identities of 

non-FBI federal government employees; (4) names and identifying 

data of non-federal government law enforcement officers; (5) 

names and identifying data of state and local government 

employees; (6) names and identifying data pertaining to third 

parties who were of investigative interest; (7) names and 

identifying data for third parties who were merely mentioned; (8) 

file numbers related to third parties; and (9) names and 

identifying information of individuals who provided information 

to the FBI. 

 We set forth the standards for evaluating a 7(C) claim 

in Lame I, where we held: 

The Section 7(C) privacy exemption does not 

prohibit all disclosures which invade 

personal privacy, but only disclosures which 

entail an unwarranted invasion of personal 

privacy . . . . "Exemption 7(C)'s protection 

of personal privacy is not absolute . . . . 

[T]he proper approach to [a] request under a 

privacy based exemption such as 7(C) is a de 

novo balancing test, weighing the privacy 

interest and the extent to which it is 

invaded on the one hand, against the public 

benefit that would result from disclosure, on 

the other." 

Lame I, 654 F.2d at 922-23 (quoting Ferri, 645 F.2d at 1217). See

also McDonnell, 4 F.3d at 1254. 
34 

a. Privacy Interests 

 In United States Dep't of Justice v. Reporters Comm. 

for Freedom of the Press, 489 U.S. 749, 109 S. Ct. 1468 (1989), 

the Supreme Court provided guidance on the proper understanding 

of "privacy interest." Quoting from Webster's dictionary, the 

Court stated that information may be classified as "private" if 

it is "intended for or restricted to the use of a particular 

person or group or class of persons: not freely available to the 

public." Id. at 763-64, 109 S. Ct. at 1477 (footnote omitted). 

We recognized in Landano v. United States Dep't of Justice, 956 

F.2d 422, 426 (3d Cir. 1992), vacated in part on other grounds 

and remanded, U.S. , 113 S. Ct. 2014 (1993), "that 

individuals involved in a criminal investigation -- including 

suspects, witnesses, interviewees, and investigators -- possess 

privacy interests, cognizable under Exemption 7(C), in not having 

their names revealed in connection with disclosure of the fact 

and subject matter of the investigation." Id. at 426 (citation 

omitted). Suspects, interviewees and witnesses have a privacy 

interest because disclosure may result in embarrassment or 

harassment. Id. Law enforcement personnel involved in a 

criminal investigation also have a cognizable privacy interest 

under FOIA. Id. (citing Patterson, 893 F.2d at 601). 

 Accordingly, the individuals involved in the 

investigations of David Lasser and the WAA have a privacy 

interest in not having their identities disclosed.4 We note that 

 

4We note again the colloquy between Agent Moran and counsel for 

Davin, in which Agent Moran concedes that certain information was 
35 

for some, the privacy interest may become diluted by the passage 

of time, though under certain circumstances the potential for 

embarrassment and harassment may also endure. Id. at 427. Thus, 

when balancing the private and public interests, the district 

court must determine the relative strength of an individual's 

privacy interest. 

 The government and Davin dispute whether death 

extinguishes an individual's privacy rights under FOIA, and if 

so, whether the government is required to determine if the 

individual is still alive. The first issue has been settled by 

our holding in McDonnell, where we expressly announced that under 

§ 552(b)(7)(C), "[p]ersons who are deceased have no privacy 

interest in nondisclosure of their identities." McDonnell, 4 

F.3d at 1257. Furthermore, with regard to a claimed privacy 

exemption under § 552(b)(6), the exemption from disclosure of 

personnel and medical files, we directed the government to 

determine whether the subject of a FOIA request was deceased or 

living. Id. at 1254. While we recognize that the standard for 

evaluating privacy interests pursuant to Exemption 7(C) is 

somewhat broader that the standard for Exemption 6, see Reporters 

Committee, 489 U.S. at 756, 109 S. Ct. at 1473, we nonetheless do 

 

redacted pursuant to Exemption 7(C) "[b]ecause some of the 

information would indicate possibly a particular area of the 

country" from where an informant was operating, which might lead 

the requester to the informant's identity. App. at 618. See

supra note 2. While the FBI may assert individuals' privacy 

interest in not having their identities disclosed, the privacy 

interest only extends to the individuals' names and street 

addresses, which need not be revealed, but not to cities, 

occupations, or other "identifiers." 
36 

not perceive legitimate grounds for distinguishing between (b)(6) 

and (b)(7)(C) on this issue. 

 The government voices a concern, however, that to 

require the FBI to determine whether all of the hundreds of 

individuals who are named in the files requested by Davin are 

alive "would place a great, if not intolerable burden, on the 

FBI." Government Brief at 33. We are mindful that the Supreme 

Court has recognized a congressional intent "to provide 

'"workable" rules' of FOIA disclosure." Landano, U.S. at , 

113 S. Ct. at 2023 (citations omitted). Accordingly, we hold 

that it is within the discretion of the district court to require 

an agency to demonstrate that the individuals upon whose behalf 

it claims the privacy exemption are, in fact, alive. In 

exercising its discretion, the district court should consider 

such factors as the number of named individuals that must be 

investigated, and the age of the requested records. If the 

number of individuals is not excessive, the agency could be 

required to determine whether the individuals are alive before 

asserting a privacy interest on their behalf. However, after a 

sufficient passage of time -- such as in our case where the 

pertinent investigations began over sixty years ago (and in 

McDonnell where the investigation began over seventy years before 

the FOIA request) -- the probability of the named individuals 

remaining alive diminishes. Under such circumstances, it would 

be unreasonable for the district court not to assume that many of 

the individuals named in the requested records have died, thereby 

negating a privacy interest unless proving otherwise. 
37 

b. Public Benefit 

 The Reporters Committee decision also guides us in 

identifying the relevant "public benefits" to be weighed against 

the asserted privacy interests. The Supreme Court declared that: 

whether disclosure of a private document 

under Exemption 7(C) is warranted must turn 

on the nature of the requested document and 

its relationship to "the basic purpose of the 

Freedom of Information Act 'to open agency 

action to the light of public scrutiny'" 

Department of Air Force v. Rose, 425 U.S. 

[352], 372, 96 S. Ct. [1592], 1604 [(1976)], 

rather than on the particular purpose for 

which the document is being requested. 

Reporters Committee, 489 U.S. at 772, 109 S. Ct. at 1481. 

Accordingly, "[o]fficial information that sheds light on an 

agency's performance of its statutory duties falls squarely 

within that statutory purpose. That purpose, however, is not 

fostered by disclosure of information about private citizens that 

is accumulated in various government files but that reveals 

little or nothing about an agency's own conduct." Id. at 773, 

109 S. Ct. at 1481-82. 

 Davin asserts a strong public interest in illuminating 

the government's operations and exposing possible misconduct with 

regard with to the FBI's investigation of the WAA and Lasser. We 

agree that the information requested by Davin appears to fall 

within the statutory purpose of FOIA in informing the citizenry 

about "what their government is up to." Id. at 773, 109 S. Ct. 

at 1481 (quoting EPA v. Mink, 410 U.S. 73, 80, 93 S. Ct. 827, 832 

(1973) (emphasis in original) (Douglas, J. dissenting)). The 
38 

district court must determine, however, whether that purpose is 

fostered by disclosure of the identities of private citizens. 

 We are cognizant of the government's stated 

justification for withholding: (1) names and identifying data of 

non-federal law enforcement officers because "disclosure of their 

identities would inhibit the cooperation and exchange of 

information between law enforcement officials and the FBI, and 

would suppress a vital source of information that the FBI relies 

upon in order to pursue investigative interests against alleged 

criminals, suspects or subjects of investigations," App. at 78; 

and (2) identities of third parties who furnished information to 

the FBI because disclosure "would seriously impede the FBI's 

ability to gather future information." App. at 81. We held in 

McDonnell that "the Government's asserted interest in assuring 

future cooperation of witnesses with FBI investigations is not a 

valid reason for refusing to disclose information under Exemption 

7(C)." McDonnell, 4 F.3d at 1256. Accordingly, neither the FBI 

nor the district court may consider this factor in considering 

the public benefit of withholding the information. 

c. Balancing Private and Public Interests 

 Davin and the government disagree over how to perform 

the balancing between private and public interests. Davin refers 

us to our decision in Lame I, where we emphasized that "[t]here 

can be no question that the 7(C) balancing test must be conducted 

with regard to each document, because the privacy interest and 

the interest of the public in disclosure may vary from document 
39 

to document. Indeed, these interests may vary from portion to 

portion of an individual document." Lame I, 654 F.2d at 923 

(footnote omitted). In that case, we concluded that the FBI's 

refusal to disclose most of the witness interview transcripts 

could not be justified under Exemption 7(C), without explaining 

why the interviews would result in embarrassment or harassment 

either to the individuals interviewed or to third parties. Id.

at 928. 

 The government, in contrast, notes that the Supreme 

Court in Reporters Committee permitted agencies to exempt certain 

records categorically, as opposed to on a document-by-document 

basis. In Reporters Committee, the Court stated that 

"categorical decisions may be appropriate and individual 

circumstances disregarded when a case fits into a genus in which 

the balance characteristically tips in one direction," 489 U.S. 

at 776, 109 S. Ct. at 1483, and concluded that "rap sheet" 

information is categorically exempt under § 522(b)(7)(C) because 

the release of such information always constitutes an unwarranted 

invasion of privacy. Id. at 780, 109 S. Ct. at 1485. 

 While we believe that in the usual circumstance, an 

individual's privacy interest in not having his or her identity 

revealed in the context of a criminal or national security 

investigation overrides the public benefit, we will refrain from 

extending Reporters Committee to require a per se rule. We 

similarly did not apply the categorical balancing approach in 

Landano, when we determined that FBI informants and agents had a 

privacy interest in not having their names disclosed in 
40 

connection with a criminal investigation, which outweighed the 

asserted public interest (not recognized by FOIA) in discovering 

wrongdoing by a state agency. Landano, 956 F.2d at 430-31. 

 Accordingly, while we do not comment on the proper 

result of the balancing in this matter, we find it important to 

note that the government must conduct a document by document 

fact-specific balancing. Agent Moran dispatched all of the 7(C) 

exemptions claimed in the 9,270 pages withheld by stating that in 

each instance where information was withheld: 

it was determined that individual privacy 

interests were not outweighed by any public 

interest. When the documents at issue were 

reviewed . . . the passage of time and any 

effect on the third party privacy interests 

were considered. It was determined that the 

privacy interests are stronger now than they 

were when the records were created. To 

reveal names in the context of these records 

could reasonably be expected, due to the type 

of the investigation to put the lives of 

individuals in danger, cause embarrassment 

and humiliation, and would therefore, be an 

unwarranted invasion of privacy. The 

disclosure of this information would not 

contribute significantly to the public's 

understanding of the operations or activities 

of the Government. 

App. at 75. This explanation stands in stark contrast to 

McDonnell, where "[t]he Government set forth in an affidavit 

specific reasons why these persons have a privacy interest in 

nondisclosure of their identities." McDonnell, 4 F.3d at 1255. 

Agent Moran's affidavit and testimony, and consequently, the 

district court's findings, did not link the (b)(7)(C) exemption 

to any of the individual documents. On remand, the government 
41 

must provide the district court with a more detailed balancing 

effort. 

 

2. § 552(b)(7)(D) 

 Exemption 7(D) excepts from disclosure records or 

information compiled for law enforcement purposes, but only to 

the extent that the production: 

could reasonably be expected to disclose the 

identity of a confidential source, . . . 

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, information 

furnished by a confidential source. 

5 U.S.C. § 552(b)(7)(D). See also McDonnell, 4 F.3d at 1257. 

 The Supreme Court recently set forth the standards for 

withholding a document under Exemption 7(D) in Landano. The 

Supreme Court explained that a source is considered a 

"confidential source" only "if the source `provided information 

under an express assurance of confidentiality or in circumstances 

from which such an assurance could reasonably be inferred.'" 

Landano, U.S. at , 113 S. Ct. at 2019-20 (quoting H.R. Conf. 

Rep. No. 1200, 93rd Cong., 2d Sess. 13 (1974), reprinted in 1974 

U.S.C.C.A.N. 6285, 6291. 

 The government asserts that eight categories of 

information pertinent to Davin's request fall under Exemption 

7(D): (1) internal source symbols and code names assigned to 

confidential informants; (2) internal symbol numbers which 
42 

pertained to informants; (3) information provided by sources 

under an express promise of confidentiality; (4) temporary source 

symbols; (5) names and identifying data of third parties who 

provided information and were interviewed under an implied 

promise of confidentiality; (6) information supplied by 

institutions under an implied promise of confidentiality; (7) 

identities of non-federal law enforcement officers who provided 

information under an implied promise of confidentiality; and (8) 

information provided by local or state bureaus or agencies under 

an implied promise of confidentiality. 

 In Landano, the Supreme Court reemphasized that the 

government bears the burden of establishing that Exemption 7(D) 

applies. Landano, U.S. at , 113 S. Ct. at 2019. The Court 

embarked on its discussion of implied assurances of 

confidentiality after noting that the FBI in that case could not 

attempt to demonstrate that it made explicit promises of 

confidentiality, because "[t]hat sort of proof apparently often 

is not possible: The FBI does not have a policy of discussing 

confidentiality with every source, and when such discussions do 

occur, agents do not always document them." Id. at , 113 S. 

Ct. at 2020. We glean from these remarks that if an agency 

attempts to withhold information under Exemption 7(D) by express

assurances of confidentiality, the agency is required to come 

forward with probative evidence that the source did in fact 

receive an express grant of confidentiality. Proof could take 

the form of declarations from the agents who extended the express 

grants of confidentiality, contemporaneous documents from the FBI 
43 

files reflecting the express grants of confidentiality, evidence 

of a consistent policy of expressly granting confidentiality to 

certain designated sources during the relevant time period, or 

other such evidence that comports with the Federal Rules of 

Evidence. 

 Rather than provide such proof, the government submits 

Agent Moran's declaration that asserts an alleged policy of the 

FBI to grant express assurances of confidentiality on a routine 

basis.5 The declaration fails to cite any written policy or 

 

5Agent Moran stated in his declaration: 

Exemption (b)(7)(D) was asserted to withhold 

information received from a source under an 

express promise that it would be held in 

confidence, as well as information that could 

lead to the source's identity. These sources 

are symbol numbered sources, code name 

sources, or individuals who specifically 

requested confidentiality . . . . 

As a matter of policy and practice, all 

symbol numbered informants or code names 

sources are given express assurances of 

confidentiality. Illustrative of this 

express assurance of confidentiality is the 

manner in which such information is treated 

within the FBI. The identities of such 

sources are not referred to by the true name 

in any FBI document which records the 

information they furnished. The identities 

of these sources are known to very few FBI 

employees and are available only on a "need 

to know" basis. These special precautions 

are needed because of the sensitive nature of 

the information being provided and harm that 

may befall these sources if their identities 

were revealed. The manner in which the FBI 

actually obtains information from these 

sources is also demonstrative of the express 

assurance of confidentiality under which it 

is received. The information is received 

only under conditions which guarantee the 
44 

provide any assurance that the alleged policy has been applied 

consistently over the years, and in this specific case. There is 

no proof that these particular sources received express grants of 

confidentiality. 

 The government argues that we indicated in McDonnell

that courts may rely upon agency declarations in determining 

whether a source has received an express assurance of 

confidentiality. McDonnell, 4 F.3d at 1258. In that case, we 

held that the district court did not err in adopting the 

magistrate judge's conclusion that the identity of and 

information provided by two specific sources were exempt from 

disclosure under (b)(7)(D) when the declaration stated one source 

was given express assurance of confidentiality and the other 

source was assigned a symbol source number and was never referred 

to by name in the file. Id. The government also cites Wiener, 

943 F.2d at 986, where the Court of Appeals for the Ninth Circuit 

held that the FBI "need only establish the informant was told his 

name would be held in confidence." 

 These holdings do not support the government's 

assertion that it has sufficiently established that sources 

received express grants of confidentiality. In McDonnell, the 

agent provided information regarding the circumstances 

 

contact will not be jeopardized. Derivative 

ensuing investigations attributable to a 

symbol numbered source have also been denied 

as disclosure of such would reveal the 

identity of the source. 

App. at 87-88. 
45 

surrounding the interviews in which express grants of 

confidentiality were given to the two specific sources in 

question. McDonnell, 4 F.3d at 1257-58.6 No such specifics are 

provided in the Moran declaration in this case. Furthermore, 

while the Wiener court required the FBI to "establish the 

informant was told his name would be held in confidence," the FBI 

has failed to do so in this case since the government did not 

present any evidence of its alleged policy or any evidence that 

an express grant of confidentiality was in fact given to any 

particular source. 

 On remand, the government, if it pursues an exception 

for express promises of confidentiality, must produce evidence of 

 

6In McDonnell, we held that the district court did not err in 

adopting the magistrate judge's conclusion that the identity of a 

certain source was exempt from disclosure under Exemption 7(D), 

when, based on Agent Llewellyn's declaration, the magistrate 

judge "determined that the Government gave an express assurance 

of confidentiality to an informant named in the files . . . . The 

identity of this source was considered so sensitive that he or 

she was assigned a symbol source number and was never referred to 

by name in the file." McDonnell, 4 F.3d at 1258. While these 

statements may appear to imply that the FBI only pointed to its 

symbol source number policy to show that the sources received 

express grants of confidentiality, it is clear from reading 

McDonnell that the agent's declaration in fact provided detailed 

information regarding the circumstances of the express grants of 

confidentiality to the two specific sources involved in the 

investigation. We wrote: "At oral argument on the parties' 

cross-motions for summary judgment, the magistrate judge ordered 

the FBI to submit a declaration regarding the circumstances 

surrounding the interviews of third parties who were members of 

the public. This order was in response to two letters McDonnell 

has submitted from interviewees stating that they had not 

received either express or implied assurances of confidentiality 

when the FBI interviewed them." Id. at 1257 (emphasis added). In 

response to this directive, the FBI submitted Agent Llewellyn's 

declaration, which presumably, fulfilled the magistrate judge's 

order. 
46 

its alleged policy and practice of giving all symbol numbered 

informants or code name sources express assurances of 

confidentiality, evidence that the policy was in force throughout 

the forty years spanned by the documents at issue, and evidence 

that the policy was applied to each of the separate 

investigations and in each case in which a document or portion 

has been withheld. 

 In addition to claiming that sources were given express 

promises of confidentiality, the government also asserts that 

some sources gave the FBI information under "an implied promise 

of confidentiality." App. at 89. In Landano, the Supreme Court 

explained that: 

the Government is not entitled to a 

presumption 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 investigation. 

 More narrowly defined circumstances 

however, can provide a basis for inferring 

confidentiality. For example, when 

circumstances such as the nature of the crime 

investigated and the witness' relation to it 

support an inference of confidentiality, the 

Government is entitled to a presumption. 

Landano, U.S. at , 113 S. Ct. at 2024. In that case, the 

Court noted, but did not decide, that the sources at issue who 

were witnesses to a gang-related shooting of a police officer, 

might well be presumed to have spoken to the FBI on condition of 

anonymity based on the circumstances under which they gave their 

information. Id. at , 113 S. Ct. at 2023. 
47 

 Moran indicated that all the persons who provided 

information under an implied promise of confidentiality were 

individuals who "were past or present members of the WAA; 

individuals who, through their employment, were in a position to 

provide detailed information; or private citizens who attended 

WAA meetings." App. at 90. In its brief, the government 

asserts: 

[T]he Alliance was suspected of being a 

Communist front and engaging in seditious 

activities. Given the nature of the 

activities alleged, it could be presumed that 

the Alliance would take measures to shield 

them from law enforcement. Under these 

circumstances, sources of insider information 

operated under an implied assurance of 

confidentiality. The same holds true for 

individuals who reported matters discussed at 

Workers Alliance meetings. The Alliance had 

various chapters or branches located 

throughout the country. Individuals who 

attended meetings and then reported to the 

FBI also did so under an implicit grant of 

confidentiality. These individuals were 

exposed to the risk of retaliation by 

reporting on Alliance business to the FBI, 

particularly if they were known to other 

members of the local branch. In short, 

sources providing detailed information 

concerning the extent of Communist control of 

labor organization and possible treasonous 

activities of that organization would have 

been concerned "that exposure would bring 

harassment, ridicule or retaliation." Keys 

v. Dep't of Justice, 830 F.2d [337,] 345-46 

[(D.C. Cir. 1987)]. 

Government's Brief at 41-42. 

 We do not believe that this recitation sufficiently 

describes circumstances that can provide a basis for inferring 

confidentiality. The FBI has not offered evidence that any 
48 

member of the WAA engaged in acts of violence or harassment, or 

threatened to do so. In light of the fact the government has 

access to documents concerning the WAA spanning a period of forty 

years, we assume that the government would be able to provide 

examples illustrating its contention that the sources allegedly 

were afraid of other WAA members. The government's citation to 

Keys for the proposition that the sources sought implied 

assurances of confidentiality actually emphasizes the distinction 

between the circumstances of the two cases: Keys involved a 

murder investigation by a foreign operative in which a source 

would have good reason to be afraid "lest he meet the same fate." 

Keys, 830 F.2d at 346. 

 The government has provided the court with generalized 

allegations that the WAA was suspected of "being a Communist 

front" and "engaging in seditious activities." In attempting to 

prove that the sources received an implied promise of 

confidentiality, the FBI relies heavily on the presumption that 

people who speak to the FBI necessarily require confidentiality. 

App. at 90-91. The Supreme Court rejected such a presumption in 

Landano. U.S. at , 113 S. Ct. at 2022. 

 Recently in McDonnell, we were faced with a requester 

seeking documents concerning information supplied by an alleged 

confidential source regarding involvement of "a suspicious or 

radical" member of the crew of a ship, who the FBI suspected was 

involved with a suspicious fire aboard the ship. McDonnell, 4 

F.3d at 1258. The government asserted that the information was 

exempt because these circumstances established that the source 
49 

gave his information under an implied promise of confidentiality. 

Id. We held that the government did not meet it burden under 

Landano and remanded for further proceedings consistent with 

principles articulated by the Supreme Court. In the case at 

hand, the FBI has not even shown that the persons being 

investigated were suspected of involvement in violent acts. 

Accordingly, as we held in McDonnell, 4 F.3d at 1262, on remand, 

the government must provide a further detailed factual recitation 

in order to sustain its burden of showing circumstances that 

provide a basis for inferring confidentiality. 

 As an added note, we mention the last clause of 

§552(b)(7)(D), which exempts from disclosure the information that 

a confidential source provides in a criminal or national security 

investigation. While not directly before us on this appeal, we 

do not foreclose the possibility that the FBI could withhold more 

information than is justified to protect the identity of 

confidential sources, assuming, of course, the government 

adequately demonstrates that the information relates to a 

criminal or national security investigation. 

 

3. § 552(b)(7)(E) 

 The FBI has withheld documents and portions of 

documents under Exemption 7(E), which allows an agency to 

withhold records and information for law enforcement purposes 

that "would disclose techniques and procedures for law 

enforcement investigations or prosecutions." 5 U.S.C. 

§552(b)(7)(E). Exemption 7(E) applies to law enforcement records 
50 

which, if disclosed, would risk circumvention of the law. PHE, 

Inc. v. Department of Justice, 983 F.2d 248, 249-50 (D.C. Cir. 

1993). This exemption, however, may not be asserted to withhold 

"routine techniques and procedures already well-known to the 

public, such as ballistic tests, fingerprinting, and other 

scientific tests commonly known." Ferri, 645 F.2d at 1224 

(citing H.R. Conf. Rep. No. 1200, 93rd Cong., 2d Sess. 12 (1974), 

reprinted in 1974 U.S.C.C.A.N. 6285, 6291). 

 The government asserted this exemption, claiming the 

techniques utilized yielded valuable information, and the 

disclosure of certain information "would reveal the type of 

effective investigative techniques and the relative utility of 

these techniques could be diminished." App. at 95. The 

government argues that despite the fact that certain law 

enforcement techniques, such as the use of informants, may be 

well known to the public, disclosure is nevertheless not 

warranted where the circumstances surrounding the usefulness of 

these techniques is not well known. According to the government, 

"the manner in which informants are identified, recruited, 

cultivated and handled by the FBI is not well-known," which is 

especially true where, as here, "the FBI is investigating an 

organization which is believed to be engaging in illegal 

activities and has taken measures to shield such subversive 

activities from law enforcement." Government Brief at 43. The 

government maintains that groups who are suspected of criminal 

wrongdoing today may be provided with information as to how the 

FBI recruits internal informants, which may aid the groups in 
51 

detecting informants currently operating within their ranks. Id.

at 43-44. 

 The government has not offered any proof of these 

assertions. If the government wishes to argue that the 

information concerning the use of informants in the 1930's is of 

such a specialized nature that it is still unknown to the public, 

the government must introduce evidence of that fact. Moreover, 

if the government submits evidence that specific documents it has 

withheld contain secret information about techniques for 

recruiting informants, it will have to establish that the release 

of this information would risk circumvention of the law. The 

speculation provided in the government's brief of political 

groups' increased ability to detect informants within their ranks 

is not supported by evidence. Accordingly, on remand, the 

government must provide the district court with additional facts 

to support exempted documents and portions of documents under 

Exemption 7(E). 

V. 

 Last, the government asserts that information was 

exempt from disclosure under 5 U.S.C. § 552(b)(2), which applies 

to matters pertaining solely to the internal personnel rules and 

practices of an agency. This exemption pertains to "routine 

matters" of "merely internal significance" in which the public 

lacks any substantial interest. Department of the Air Force v. 

Rose, 425 U.S. 352, 369-70, 96 S. Ct. 1592, 1603 (1976). The 

materials claimed to fall within the (b)(2) exemption include the 
52 

following categories of information: (1) permanent source symbols 

or code names assigned to confidential informants; (2) the file 

numbers of permanent symbol numbered sources, (3) temporary 

source symbols; and (4) administrative data, practices and 

procedures. App. at 71-74. 

 Agent Moran claimed in his declaration that: 

Information relative to matters of purely 

internal, bureaucratic significance has been 

withheld in certain documents as it pertains 

to the administrative handling of purely 

internal functions and policies of the FBI. 

The information is not of obvious importance 

in itself; but, if it were released to 

plaintiff and combines with other known data, 

in a "mosaic" analysis, it could lead to 

identification of substantive information in 

the file which has been withheld pursuant to 

other 5 U.S.C. 552 exemptions. Disclosure of 

this type of information would not add to the 

public's understanding of the inner workings 

of the Government. 

Information has also been deleted from a 

sample document which relates to FBIHQ 

instructions to a field office concerning 

agency business. This material relates to 

procedures and practices to be followed to 

effectively support investigative efforts. 

App. at 74. 

 The government argues that informant codes fall within 

the ambit of Exemption (b)(2). We agree. As the Court of 

Appeals for the District of Columbia Circuit has noted, "[t]he 

means by which the FBI refers to informants in its investigative 

files is a matter of internal significance in which the public 

has no substantial interest." Lesar v. United States Dep't of 
53 

Justice, 636 F.2d 472, 485-86 (D.C. Cir. 1980); see also Massey 

v. FBI, 3 F.3d 620, 622 (2d Cir. 1993). 

 However, the description given by the Moran declaration 

provided the district court with no information as to the content 

of any of the withheld documents or portions of documents. 

Accordingly, on remand, the government may assert exemptions 

under (b)(2) if the district court is provided with sufficient 

factual support for the withholdings. 

CONCLUSION 

 Because the Vaughn affidavit submitted by the 

government did not include a specific factual recitation linking 

the documents or portions of documents in question with the 

claimed FOIA exemptions, the district court was not provided with 

an adequate factual basis for its determination. The order of 

the district court granting summary judgment to the government 

was inappropriate because the government did not sufficiently 

"describe the withheld information and the justification for 

withholding with reasonable specificity, demonstrating a logical 

connection between the information and the claimed exemption[s]." 

American Friends, 831 F.2d at 444 (quoting Abbotts, 766 F.2d at 

606). Accordingly, we will remand this matter to the district 

court for further fact finding7 and conclusions consistent with 

the principles articulated in this opinion. 

 

7Fact finding may take the form of ordering a more detailed 

supplemental Vaughn index and public affidavits. See, e.g., 

Wiener, 943 F.2d at 979; King, 830 F.3d at 225; Ferri, 645 F.2d 

at 1225. If the district court is still concerned that it is 
54 

 

 

unable to make a responsible de novo determination, it may 

proceed with in camera review. 5 U.S.C. § 552 (a)(4)(B). We 

have discussed elsewhere the factors to be considered in deciding 

whether in camera review is appropriate. See, e.g., Ferri, 645 

F.2d at 1225-26; Lame I, 654 F.2d at 921-22.