Court sets guidelines for determining informant confidentiality

COLORADO–A federal appeals court in early November set out guidelines for determining, on a case-by-case basis, whether the federal government has given an informant an implied promise of confidentiality. That determination can ultimately govern whether information provided by the informant is exempt from disclosure under the arm of the Freedom of Information Act’s law enforcement exemption that protects confidential informants (Exemption 7(d)).

The U.S. Court of Appeals in Denver (10th Cir.) said that, in deciding whether an informant expected confidential treatment, the court can consider the nature of the crime and whether a source would reasonably fear reprisal. It can consider the source’s relationship to the perpetrator of the crime and whether something unique makes the source fear retribution. It can consider the institution to which the information was given, but that will not automatically make the information confidential.

The appeals panel sent the case back to federal District Court in Oklahoma City for a document-by-document review.

Alvie Hale, who faces a death sentence in Oklahoma for the kidnapping and murder of William Perry in the early 1980s, filed a FOI Act request in 1989 for the information that the federal government had collected on the crime. When the FBI denied access to more than a third of the records, claiming they fell under exemption 7(d), Hale claimed the agency wanted to protect the real murderer, who Hale said was a valuable informant in other cases.

Hale said that he, Perry and three others planned the kidnapping to extort money from Perry’s parents, but that the plan backfired, Perry tried to back out, a quarrel ensued and a fellow co-conspirator shot him. Hale claimed that he was away calling for ransom money when the shooting of Perry actually occurred.

Hale sued for the records and lost initially in federal District Court in Oklahoma City and then on appeal in August 1992 to the U.S. Court of Appeals in Denver. The courts said that people interviewed by the FBI assume that their identity and the information will be confidential, even if the agency makes no explicit promise to hold the information in confidence.

The U.S. Supreme Court vacated the decision in 1993 without hearing the case, ordering the lower court to reconsider its decision in light of the high court’s decision in Department of Justice v. Landano. Landano held that when a source provides information to the government, even to the FBI, the government is not entitled to presume that the communication is confidential. In each case the government must look at the source and decide whether he or she provided the information in confidence. After ordering the case back to the District Court, the court again heard an appeal and ordered the case- by-case analysis. (Hale v. Department of Justice; Attorney: Scott Braden, Tallahassee, Fla.)