Dow Jones & Company, Inc. v. Department of Justice

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, Schmerler’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).

*578 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 nonconfidentiality. 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.

Before: WALD, Chief Judge, MIKVA, EDWARDS, RUTH B. GINSBURG, SILBERMAN, 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

*579 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.

. 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).