finding that the deliberative process privilege is “ ‘predicated on the recognition that the quality of administrative decision-making would be seriously undermined if agencies were forced to operate in a fish bowl.’ ”
How later courts described this case
- finding that the deliberative process privilege is “ ‘predicated on the recognition that the quality of administrative decision-making would be seriously undermined if agencies were forced to operate in a fish bowl.’ ”
- noting that because the Government will rarely come forward with information permitting “either an inference of confidentiality or an inference of nonconfidentiality ... the presumption of confidentiality is irre-buttable”
- emphasizing that the application of Exemption 5 in the context of the deliberative process privilege “depends on the factual content and purpose of the requested document” as opposed to other variables
- taking categorical approach to FOIA cases as suggested by the Supreme Court in Reporters’ Committee, supra, by creating presumption that FBI generally affords confidentiality to its sources
Written by the judges who cited it.
The opinion
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, 917 F.2d 571, 577 (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 *580 is section 7(D) of FOIA, which permits the Government to withhold
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 suggesting 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, 917 F.2d at 577 (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 irrebuttable. See Dow Jones, 917 F.2d at 577 (“We readily admit that the presumption ... in practical terms comes close to an irrebuttable 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 *581 the court’s decision denying the suggestion of en banc review.