In a decision which conflicts with the law of nearly every other circuit, a panel of the Court of Appeals for the Ninth Circuit on June 12 upheld a district court decision ordering the disclosure of the identities of hundreds of confidential FBI sources. See Rosenfeld v. United States Dep't of Justice, 57 F.3d 803 (9th Cir. 1995). This extraordinary ruling arose from a request made to the FBI for records concerning individuals and organizations involved in the Free Speech Movement (FSM), which had organized demonstrations at the University of California at Berkeley during the 1960s to protest "campus regulations restricting political activities on campus grounds." The FBI had investigated the FSM "out of a concern that its leaders were members of communist or subversive organizations."
Many of the sources the FBI sought to protect in the case were classified sources. In upholding the lower court's disclosure decision, the Ninth Circuit relied upon its decision in Wiener v. FBI, 943 F.2d 972, 980 (9th Cir. 1991), cert. denied, 113 S. Ct. 3013 (1992) (see FOIA Update, Summer 1992, at 2), to declare that the FBI was required to demonstrate "'whether the source was truly a confidential one and why disclosure of the withheld information would lead to exposure of the source.'"
Undertaking minimal appellate review, the Ninth Circuit ruled that the district court had "correctly concluded that the government did not carry its burden" as to the classified sources because it had not demonstrated with sufficient "particularity" why classification was warranted. It flatly rejected the FBI's argument that the lower court had failed to afford the government's classification decisions "substantial weight," summarily declaring that "[t]his contention does not persuade us" because, it said, the FBI had "failed to make an initial showing which would justify [such] deference." Thus, this case now stands as the only pending one in which classified information has been ordered disclosed.
The remaining information in the case, which was withheld pursuant to Exemption 7, fared no better than the classified material. Although acknowledging that the FBI "has a clear law enforcement mandate," the Ninth Circuit turned Exemption 7's "law enforcement purpose" threshold into a major obstacle thwarting the FBI's ability to protect confidential sources and personal privacy interests. It conceded that documents in the FSM file -- at least up to a certain date -- were in fact compiled for a law enforcement purpose, but then upheld the lower court's determination that that purpose "'disintegrated'" into a "pretext to pursue routine monitoring." As a result of this ruling on Exemption 7's threshold, the Ninth Circuit essentially denied protection outright for numerous sources and third parties mentioned in the files.
Further, even as to those documents that were found to satisfy Exemption 7's threshold, source and privacy protections still were denied. As to the privacy interests, the Ninth Circuit simply agreed with the lower court that "[i]t certainly serves FOIA's purpose to disclose publicly records that document whether the FBI abused its law enforcement mandate by overzealously investigating a political protest movement" and that that purpose "may not be served without disclosing the names of the investigation subjects." As to the confidential sources, disclosure was ordered even for symbol-numbered sources, despite the FBI's sworn declaration demonstrating that such sources are routinely granted an express promise of confidentiality and that their identities are so sensitive that even within the FBI they are revealed on a need-to-know basis only. The Ninth Circuit chose to discount that declaration and instead just cited its decision in Wiener to rule that the FBI had failed to point "to anything in the record that indicates persuasively" that the symbol-numbered sources were "'told [their] name[s] would be held in confidence.'" The government has filed a petition for rehearing en banc.
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