# Dow Jones & Company, Inc. v. Department of Justice > Court of Appeals for the D.C. Circuit · October 5, 1990 · 908 F.2d 1006 URL: https://www.frixlaw.com/law-library/cases/9480588 ## Case - **Full name:** DOW JONES & COMPANY, INC., Appellant, v. DEPARTMENT OF JUSTICE - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** October 5, 1990 - **Citations:** 908 F.2d 1006; 285 U.S. App. D.C. 247; 1990 U.S. App. LEXIS 18076; 1990 WL 102369 - **Precedential status:** Published - **Opinion:** Concurrence by Edwards - **Judges:** Edwards, Silberman, Williams, Wald, Mikva, Ginsburg, Sil-Berman, Buckley, Sentelle, Thomas, Henderson, Randolph - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9480588 ## How later opinions describe it (automated extraction) - finding that the protection of 7(D) is only waived if “the exact information given to the FBI has already become public, and the fact that the informant gave the same information to the FBI is also public” ## Opinion text *1012 HARRY T. EDWARDS, Circuit Judge, concurring: I agree with the majority that the decision in Schmerler v. FBI, 900 F.2d 333 (D.C.Cir.1990), is controlling in the case before us, and I therefore concur in the judgment. In my view, however, Schmer-ler’.s “presumption of confidentiality.” is founded on a flawed interpretation of the Freedom of Information Act (“FOIA”). Although I am constrained to follow the holding of Schmerler , for it is the law of the circuit, I nevertheless write separately to express my concerns about the viability of this precedent under FOIA. FOIA plainly states that “the burden is on the agency to sustain” the invocation of any FOIA exemption. 5 U.S.C. § 552 (a)(4)(B) (1988) (emphasis added). The court in Schmerler seemingly disregarded this directive when it held that “the burden was on appellee [the FOIA plaintiff] to come forward with evidence that would rebut the presumption that the [FBI] extended promises of confidentiality.” 900 F.2d at 337 (emphasis added). Nor will it do to suggest that the Government discharges its statutory burden by showing merely that the FBI interview was part of a criminal investigation. For Exemption 7(D) applies to “information compiled ... in the course of a criminal investigation” only if the information is “furnished by a confidential source.” 5 U.S.C. § 552 (b)(7)(D). Schmerler’s presumption of confidentiality also appears to be incompatible with the basic structure of FOIA. Because the Government alone typically has access to information relating to FBI interviews, a FOIA plaintiff usually will be forced to rely on the Government’s Vaughn index 1 when discharging his “burden ... to come forward with evidence” showing that “it would be unreasonable to infer from the circumstances ... that confidentiality had been extended.” Schmerler, 900 F.2d at 337 . But, as the instant case well illustrates, the Government can satisfy its Vaughn index obligations without disclosing enough information to permit either an inference of confidentiality or an inference of noneonfidentiality. Practically speaking, then, Schmerler’s presumption of confidentiality is irrebuttable. In light of FOIA’s overarching goal of “access to official information long shielded unnecessarily from public view,” EPA v. Mink, 410 U.S. 73, 80 , 93 S.Ct. 827, 832 , 35 L.Ed.2d 119 (1973), I cannot accept that Congress intended that the Government be able to prevail on an Exemption 7(D) claim by merely asserting it. I believe that our approach to “implied confidentiality” prior to Schmerler avoided these pitfalls. In both Keys v. Department of Justice, 830 F.2d 337 (D.C.Cir.1987), and King v. Department of Justice, 830 F.2d 210 (D.C.Cir.1987), the court found implied assurances of confidentiality only upon identifying specific circumstances supporting the inference that confidentiality was necessary to elicit information. See Keys, 830 F.2d at 345-46 (concern of Communist party members that disclosure of identities would cause harassment by other members); King, 830 F.2d at 235 (close allegiance between subject of investigation and interviewee created conflict of allegiance). These cases nowhere suggest that the burden is on the plaintiff to disprove the FBI’s need for confidentiality. The statement in Keys from which Schmerler derives its presumption of confidentiality — that “promises of confidentiality [are] ‘inherently implicit’ ” in FBI interviews, 830 F.2d at 345 (quoting Miller v. Bell, 661 F.2d 623, 627 (7th Cir.1981), cert. denied, 456 U.S. 960 , 102 S.Ct. 2035, 72 L.Ed.2d 484 (1982)) — merely reports one of the standards in use in other circuits. Indeed, in attempting to reconcile apparently divergent approaches among the circuits, the Keys court suggested that Miller’s “inherently implicit” standard was perfectly compatible with a fact-specific inquiry into whether an inference of confidentiality was warranted. See 830 F.2d at 345-46. All the same, I acknowledge that Schmerler is now the law of the circuit. I cannot accept the appellee’s suggestion that we should treat Schmerler as nonbinding because the FOIA plaintiff’s brief in that case did not adequately dispute the Government’s depiction of the standard of proof under Exemption 7(D). This court is fully aware of its independent duty to determine what the law is before applying it. It is no doubt tempting to redescribe as “dicta” holdings with which we disagree, but we cannot do so while remaining faithful to the principle that panel decisions bind future panels. In sum, unless and until Schmerler is repudiated by an authority higher than the panel that issued it, this court must abide by it. *1013 Before: WALD, Chief Judge, MIKVA, EDWARDS, RUTH B. GINSBURG, SIL-BERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG, SENTELLE, THOMAS, HENDERSON, and RANDOLPH, Circuit Judges. ORDER Oct. 5, 1990. Appellant’s Suggestion for Rehearing En Banc has been circulated to the full court. The taking of a vote was requested. Thereafter, a majority of the judges of the court in regular active service did not vote in favor of the suggestion. Upon consideration of the foregoing, it is ORDERED, by the Court en banc, that the suggestion is denied. A separate statement of Circuit Judge SILBERMAN concurring in the denial of rehearing en banc, with whom WILLIAMS, Circuit Judge, joins, is attached. A separate statement of Circuit Judge EDWARDS dissenting in the denial of rehearing en banc, with whom WALD, Chief Judge, and MIKVA, Circuit Judge, concur, is attached. SILBERMAN, Circuit Judge, concurring in the denial of rehearing en banc, with whom WILLIAMS, Circuit Judge, joins: Appellant’s primary argument for rehearing is based on the notion that our opinion — and Schmerler , on which it is based— rely on an unjustifiably strong presumption that when the FBI interviews witnesses in a criminal investigation, those witnesses are a “confidential source” within the meaning of Exemption 7(D). It is argued that this presumption is inconsistent with the undisputed proposition that the government has the burden of proof in FOIA cases. But the presumption is directed, strictly speaking, not at the burden of proof, but at the quantum of evidence necessary to carry the burden. Cf. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 , 101 S.Ct. 1089 , 67 L.Ed.2d 207 (1981) (discussing allocation of burden of proof in Title VII cases and how an inference creates a presumption in the prima facie case). Fixing the burden of proof on a party is plainly not inconsistent with a substantive rule identifying specific facts that will carry the burden. Confidentiality, of course, is a relative term. When a witness tells an FBI agent something relevant to a criminal investigation the witness assumes, absent special circumstances, that other FBI and law enforcement personnel will have access to the information, which, in a sense, makes the divulgence less “confidential” than if the agent would swear not to tell a soul. But it cannot be seriously argued that one’s status as a “confidential source” should turn on the precise scope of the expectation of confidentiality. There is always some element of confidentiality in this setting unless, at a minimum, both the agent and the witness are wholly indifferent to publication. Our holding in Schmerler , which we follow here, is merely that the element of confidentiality typically present in such interviews satisfies the “confidential source” standard. Otherwise, the FBI would routinely be compelled to produce evidence as to the particular expectations of the interviewee and the agent, and we would be obliged on a case-by-case basis to try to determine just how much confidentiality qualifies as a “confidential source.” By identifying the set of circumstances that support a strong inference of confidentiality, subject to the possibility of exception in an extraordinary case, we seek to avoid ad hoc decisionmaking. Cf. Schmerler v. Federal Bureau of Investigation, 696 F.Supp. 717 (D.D.C.1988) (relying on a number of unique factors), rev’d, 900 F.2d 333 (D.C.Cir.1990). Because at least some element of confidentiality is virtually always present, United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 , 109 S.Ct. 1468, 1483 , 103 L.Ed.2d 774 (1989) counsels that we treat such questions generically. EDWARDS, Circuit Judge, dissenting in the denial of rehearing en banc, with whom WALD, Chief Judge, and MIKVA, Circuit Judge, concur: I concurred in the panel opinion in Dow Jones & Co. v. Department of Justice, 908 F.2d 1006, 1012 (D.C.Cir.1990) (Edwards, J., concurring), because I was bound to apply the law of the circuit, regardless of the flaws that I perceived in it. I cannot concur, however, in today’s decision of the full court not to correct a panel decision whose result rests squarely upon a striking misapplication of precedent and a bold disregard for the statute it purports to interpret. The Freedom of Information Act establishes that Government records are open to public disclosure, subject only to nine “exclusive” and “narrowly construed” exemptions. See Department of the Air Force v. Rose, 425 U.S. 352, 361 , 96 S.Ct. 1592, 1599 , 48 L.Ed.2d 11 (1976). One such exemption is section 7(D) of FOIA, which permits the Government to withhold *1014 records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to disclose the identity of a confidential source ... and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation ..., information furnished by a confidential source. 5 U.S.C. § 552 (b)(7)(D) (1988). FOIA also provides that “the burden is on the agency to sustain” the invocation of any listed exemption. 5 U.S.C. § 552 (a)(4)(B) (1988) (emphasis added). The panel in Dow Jones, following the court’s recent decision in Schmerler v. F.B.I., 900 F.2d 333 (D.C.Cir.1990), ignored these statutory mandates and held that the essential requirement of Exemption 7(D) that the information derive from a “confidential source” may be presumed satisfied whenever the information sought had its roots in an F.B.I. witness interview. The Dow Jones majority is excessively modest in suggésting that Dow Jones and Schmerler held “merely that the element of confidentiality typically present in such [F.B.I.] interviews satisfies the ‘confidential source’ standard.” See Statement of Silberman, J., concurring in the denial of rehearing en banc (emphasis added). In fact, the judgment in Schmerler is a rather remarkable example of judicial invention, for the holding of the court bears no discernible relationship to the. statute under review. Schmerler, by judicial fiat, simply does away with Exemption 7(D)’s express “confidential source” limitation through the invention of a presumption that anyone providing information to the F.B.I. has done so under a promise of confidentiality. In so doing, Schmerler changed the law of this circuit, see Dow Jones, 908 F.2d at 1013 (Edwards, J., concurring), casting it at odds not only with the law in other circuits, id., but more to the point, with the will of Congress expressed in the statute itself. The presumption created in Schmerler, and reinforced in Dow Jones, flatly defies FOIA’s unmistakable admonition that “the burden is on the agency to sustain” the invocation of any listed exemption. 5 U.S.C. § 552 (a)(4)(B) (1988) (emphasis added). A burden that is presumed satisfied is, of course, no burden at all. This error is compounded because, as the majority itself frankly concedes, the presumption applied in Dow Jones is essentially irrebutta-ble. See Dow Jones, 908 F.2d at 1012 (“We readily admit that the presumption ... in practical terms comes close to an irrebutta-ble one.”). The majority seems to believe that adherence to the presumption invented in Schmerler represents an improvement in FOIA’s statutory design, because application of the statute as it was written — requiring the Government to carry its burden of showing each element necessary to invoking Exemption 7(D), including the requirement that the information it desires to protect was actually derived from a “confidential source” — would be unduly burdensome to both the F.B.I. and the courts. See Statement of Silberman, J., concurring in the denial of rehearing en banc (“Otherwise, the FBI would routinely be compelled to produce evidence as to the particular expectations of the interviewee and the agent, and we would be obliged on a case-by-case basis to try to determine just how much confidentiality qualifies as a ‘confidential source.’ ”). Burdensome or not, we are constrained to enforce the statute as it was written by Congress. The perils of the majority’s course are quite plain: “[I]f courts were free to ‘correct’ what they believe to be congressional oversights by construing unambiguous statutes to the contrary of their plain meaning — apart from that rare case in which specific legislative history compels such a result — even a good faith attempt to further Congress’s goals would open the way to judicial hijacking of the power to legislate.” Consolidated Rail Corp. v. United States, 896 F.2d 574, 579 (D.C.Cir.1990) (D.H. Ginsburg, J.). It is not the role of this court to rewrite statutes to satisfy the legislative policy preferences of the judges. Because, in my view, Schmerler and Dow Jones smack of “judicial hijacking of the power to legislate,” I dissent from the court's decision denying the suggestion of en banc review. . See Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C.Cir.1973), cert. denied, 415 U.S. 977 , 94 S.Ct. 1564 , 39 L.Ed.2d 873 (1974). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9480588. Public record. Not legal advice.