D. 7(D)

“could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by 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.”

In appealing an Exemption 7(D) denial, you can argue that the government failed to meet its burden to show that the purported “confidential” source either “provided information under an express assurance of confidentiality or in circumstances from which an assurance could be reasonably inferred.”¹²³ Under this exemption, “the question is not whether the requested document is of the type that the agency usually treats as confidential, but whether the particular source spoke with an understanding that the communication would remain confidential.”¹²⁴ You should note that it will likely not be helpful to argue that the exemption should no longer apply due to the passage of a lengthy amount of time, as courts have generally rejected such arguments in the Exemption 7(D) context.¹²⁵

In one case, the U.S. Supreme Court rejected the FBI’s argument that all FBI informants should be presumed “confidential.”¹²⁶ Instead, the Court provided examples of “narrowly defined circumstances” that could support an inference that the informant spoke under an implied promise of confidentiality.¹²⁷ For example, the Court explained that “it is reasonable to infer that paid informants normally expect their cooperation with the FBI to be kept confidential.”¹²⁸ Likewise, such an inference would arise where the FBI “typically communicates with [the] informants ‘only at locations and under conditions which assure the contact will not be noticed.”¹²⁹ Where such circumstances do not exist, you should argue that this shows the informant did not speak under a promise of confidentiality.

Moreover, as the U.S. Court of Appeals for the First Circuit has stated, in some circumstances, “the fact that a source later gave public testimony might show that a law enforcement agency never gave a valid assurance of confidentiality in the first place,” and may “show that an assurance was intended by all parties to expire after a certain time.”¹³⁰

For example, where an agency promised individuals who provided statements to its investigators that they would “be kept confidential by the United States government unless and until [they were] called to testify at a hearing,” a court held this did “not create a justifiable expectation of confidentiality after the close of enforcement proceedings.”¹³¹ Likewise, you should highlight facts and circumstances that indicate that the agency did not give the source a true expectation that the statements would be kept confidential and/or that such confidentiality would extend beyond the end of the relevant proceedings.

You can argue that a source waived Exemption 7(D) protection by demonstrating that the source “manifested complete disregard for confidentiality.”¹³² For example, where a “confidential source” requested records from the FBI and stated that he waived any expectation of confidentiality and that the agency did not have a duty to protect him, a court stated that it was “not inclined to protect [him] from information about himself.”¹³³

However, the U.S. Supreme Court has held that even where a confidential informant testifies publicly at trial, this does not necessarily result in a waiver of the exemption.¹³⁴ The Court reasoned that the source and the agency ordinarily would not know whether the source will be called to testify at a trial at the time of their interview, and the exemption is not so limited in its scope that it only covers sources who expect complete anonymity.¹³⁵

Instead, the Court ruled, sources are “confidential” where they “furnished information with the understanding that the [agency] would not divulge the communication except to the extent the [agency] thought necessary for law enforcement purposes.”¹³⁶ Therefore, courts have held that agencies are “not required to disclose the identity of a confidential source or information conveyed to the agency in confidence in a criminal investigation notwithstanding the possibility that the informant may have testified at a public trial.”¹³⁷