II. Confidential Informant

The second exclusion applies to “informant records maintained by a criminal law enforcement agency under an informant's name or personal identifier” where such records “are requested by a third party according to the informant's name or personal identifier.”¹⁵

As suggested in a 1987 memorandum issued by the U.S. Attorney General, this exclusion addresses “the situation in which a sophisticated requester could try to ferret out an informant in his organization by forcing a law enforcement agency into a position in which it could not ordinarily withhold records on a suspected informant except by relying on Exemption 7(D) — which would confirm that the person whose records are sought is indeed an informant.”¹⁶

The legislative history to this exclusion raises an “obvious limitation[]” of this exclusion: “Where the requester is the informant himself, or a third party who describes the responsive records without reference to the informant’s name or personal identifier, the records are subject to ordinary consideration under the provisions of the FOIA.”¹⁷

Because an agency cannot apply this exclusion once “the informant’s status as an informant has been officially confirmed,”¹⁸ you should — where possible — demonstrate that this has occurred. There is no uniformly adopted definition for “official confirmation,” although two recent cases interpreting the phrase provide some guiding principles.

In a 2011 case, the U.S. Court of Appeals for the Ninth Circuit interpreted the phrase “officially confirmed” in the context of this exclusion as “a matter of first impression,” noting the lack of guidance from prior cases, legislative history, or the Department of Justice.¹⁹ The court defined it as “an intentional, public disclosure made by or at the request of a government officer acting in an authorized capacity by the agency in control of the information at issue.”²⁰

Applying that definition, the court held that the government officially confirmed an informant’s status where it “intentionally elicited testimony” from the informant and agency officials about the informant’s activities “in open court in the course of official and documented public proceedings.”²¹ Further, the court explained that while official confirmation does not “require[] that the government issue a press release publishing the identity of a confidential informant or that the director of a federal law enforcement agency personally identify the informant,” it was a relevant consideration that the information was not merely leaked or “improperly disclosed in an unofficial setting by careless agents.”²²

In a 2012 case, the U.S. District Court for the District of Columbia looked to cases interpreting “official acknowledgement” under the waiver standard, as well as the 2011 ruling of the U.S. Court of Appeals for the Ninth Circuit, in deciding whether an informant’s status had been officially confirmed.²³

The court held that the FBI had first confirmed such status when the FBI’s Chief of the Record/Information Dissemination Section released records pursuant to a FOIA request that stated “Ernest Columbus Withers was formerly designated as ME 338-R [redacted text] captioned ‘Ernest Columbus Withers; CI.’”²⁴ Another document released — “a search slip for documents concerning Withers dated from 1978” — had a handwritten note that read “Conf. Info.”²⁵ The FBI argued that these terms “do not signify that Withers was a confidential informant,” but the court rejected this argument as “not worthy of serious consideration” and “insult[ing] the common sense of anyone who reads the documents.”²⁶ The FBI then disclosed the information a second time, the court found, by attaching the records as exhibits to a court document filed in the public docket, especially as the document contained additional notes explaining that redactions to it were made under Exemption 7(D) — the exemption for confidential source information.²⁷ Like the U.S. Court of Appeals for the Ninth Circuit, the court noted that “[t]he documents that supply that information were not leaked or disclosed by some other agency or a rogue employee.”²⁸

The court also noted that “if the FBI did invoke the exclusion, it was done under less than compelling circumstances.”²⁹ Specifically, the court pointed to the fact that the informant was deceased, and the FBI sought to apply the exclusion only to protect the informant’s descendants “from potential stigma or embarrassment” — “some of which ha[d] already come to pass as a result of previous media articles on the subject” — rather than “from danger or bodily harm” or “to avoid revealing the informant’s participation in an ongoing, legitimate criminal investigation that could be compromised.”³⁰ Further, there were “serious questions surrounding the legitimacy of the investigation in which confidential informants were utilized” and a “substantial amount of time [had] elapsed since the investigation and the informant relationship were active.”³¹

Based on the rationale in these cases, you should try to provide confirmation of an informant’s status from a statement — or document released by — an agency or authorized agency official. It may also be helpful to describe any public and/or media interest in the subject — particularly if it relates to possible government misconduct — as well as the passage of time, as these factors may potentially weaken an agency’s argument that this exclusion should apply.

If an agency argues that official confirmation could not have occurred because the information was mistakenly released, you should try to contest this point by referring to the rationale in the 2012 ruling from the U.S. District Court of the District of Columbia discussed above. In that case, the court rejected the FBI’s argument that it did not intend to release the information, and official confirmation had to be “intentional and not inadvertent.”³² “[T]he word confirmation simply means that a fact has been established, not that it was formally or purposefully announced,” the court explained.³³

While noting that it was not adopting “a general principle that inadvertent disclosure will always constitute official confirmation,”³⁴ the court listed several factors that made “the claim of inadvertence to be unavailing,” in that case, including the fact that the FOIA requests involved high profile matters and requests involving exclusions generally require an agency’s “highest level of care.”³⁵ The court also pointed out that the FOIA request was narrow — giving the agency time to carefully review it — and some redactions had been made to the document, indicating that someone had actually reviewed it.³⁶ Finally, as the court noted, the FBI did not “take any steps to retrieve the documents” or take “any of the remedial steps that ordinarily follow an inadvertent disclosure.”³⁷

Where an agency argues that it purportedly released an informant’s status inadvertently, you should dispute this by highlighting evidence that it was not a mistake, such as the presence of other redactions in the same document.