UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


MAYS, ANDRE' L.

v.

DEA


99-5334a

D.C. Cir. 2000


*	*	*


Ginsburg, Circuit Judge: AndrE Mays was convicted of  conspiring to
distribute base and powder cocaine. He now  invokes the Freedom of
Information Act (FOIA), 5 U.S.C.  s 552, to get from the Drug
Enforcement Agency documents  relating to its criminal investigation
of him. The Government  contends that it may withhold the information
pursuant to  FOIA Exemption 7(C), which protects the privacy interests
of  third parties, and Exemption (7)(D), which protects confiden- tial
information. We hold, under Exemption 7(D), that ex- press and implied
grants of confidentiality protect the reports  of informants relating
to Mays' conspiracy to traffic in co- caine. With respect to Exemption
7(C), we remand this  matter for the district court to address Mays'
argument that  certain non-exempt information must be segregated and


I. Background


After his conviction Mays asked the DEA for copies of all  DEA records
filed under his name or under the names of  certain third parties.
With respect to Mays' own file, the  DEA responded by releasing
portions of 14 pages; referring  five pages to the FBI, all of which
the FBI later released to  Mays; and withholding 19 other pages under
the claimed  authority of the Privacy Act, 5 U.S.C. s 552a(j)(2), and
Ex- emptions 2, 7(C), 7(D), and 7(F) of the FOIA. The DEA also  denied
Mays access to information in the files of third parties,  citing the
same provisions. In all, the DEA processed 44  pages in response to
Mays' request, releasing five pages in  their entirety, redacting and
releasing 14 pages, and with- holding 25 pages.


Mays filed this action in district court in order to compel  release of
the withheld information. The Government intro- duced into evidence
the affidavit of Leila Wassom, a DEA 


paralegal, justifying the exemptions, along with a so-called  Vaughn
index, containing an itemized account of the disputed  documents and
of the exemption(s) and rationale(s) under  which the DEA withheld or
redacted each item. Mays con- ceded that the Government may withhold
the items for which  it invoked Exemptions 2 and 7(F), and both sides
moved for  summary judgment as to the other items. The district court,
 believing that Mays challenged only the withholdings pursu- ant to
Exemption 7(D), granted summary judgment for the  Government. The
court determined that some of the infor- mation in question is the
subject of an express grant of  confidentiality the DEA made to an
informant, and that the  DEA impliedly undertook to hold the remainder
confidential  in light of the danger faced by a cooperating individual
who  informs on drug traffickers.


Mays now appeals and, both pro se and through an amicus  appointed by
this court, challenges the Government's applica- tion of Exemptions
7(C) and 7(D). (We make no further  distinction between the arguments
of the appellant and those  of the amicus in this court.) Mays
concedes that Exemption  7(C) applies to names of third parties and to
other identifying  information, but contests both the Government's
decision to  withhold certain "investigative details" and its failure
to seg- regate and to produce non-exempt information on pages that 
also contain exempt information. As for Exemption 7(D), he  argues
that there is insufficient evidence of an express grant  of
confidentiality, and that the nature of his crime by itself  does not
support an implied grant of confidentiality.


II. Analysis


Contrary to the understanding of the district court, Mays  properly
contested the application of Exemption 7(C) in addi- tion to that of
Exemption 7(D). Therefore, we address his  arguments with respect to
each exemption.


A. Exemption 7(C)


Exemption 7(C) protects information the disclosure of  which "could
reasonably be expected to constitute an unwar- ranted invasion of
personal privacy." 5 U.S.C. s 552(b). As 


such, it reflects "the strong interest of individuals, whether  they be
suspects, witnesses, or investigators, in not being  associated
unwarrantedly with alleged criminal activity."  Computer Prof'ls v.
U.S. Secret Serv., 72 F.3d 897, 904 (D.C.  Cir. 1996). When
information withheld by the Government  implicates this interest, it
becomes necessary to determine  whether disclosure is warranted by
"balanc[ing] the public  interest in disclosure against the interest
Congress intended  the Exemption to protect." DOJ v. Reporters Comm.,
489  U.S. 749, 776 (1989). Because the FOIA is concerned with  the
right of the general public to know what their government  is up to,
the identity and interest of the party requesting the  document are
irrelevant to this balancing. See id. at 771.  Absent exceptional
circumstances, the balance categorically  favors withholding the names
and addresses of third parties  as "the type of information sought is
simply not very proba- tive of an agency's behavior or performance."
Safecard  Servs., Inc. v. FCC, 926 F.2d 1197, 1205 (D.C. Cir. 1991). 
Finally, Exemption 7(C) ordinarily permits the Government  to withhold
only the specific information to which it applies,  not the entire
page or document in which the information  appears; any non-exempt
information must be segregated  and released, see 5 U.S.C. s 552(b),
unless the "exempt and  nonexempt information are 'inextricably
intertwined,' such  that the excision of exempt information would
impose signifi- cant costs on the agency and produce an edited
document  with little informational value." Neufeld v. IRS, 646 F.2d 


It is against this backdrop that Mays contests the Govern- ment's
withholdings under Exemption 7(C). In his pro se  opposition to the
Government's motion for summary judg- ment, he conceded the legitimacy
of redacting "names or  other identifying symbols" but argued that
"merely because  an isolated portion of a document need not be
disclosed does  not make the entire document exempt from disclosure."
This  adequately presented the argument that under Exemption  7(C)
only names and other identifying information can be  withheld.


Although the district court did not address this argument,  we would
affirm its grant of summary judgment if Mays could  not prevail
against the Government's factual showing. That,  however, is not the
case. In her affidavit Ms. Wassom  establishes that "[s]ome of the
documents ... contain names  and addresses and other identifying
information [exempt  from disclosure]," and asserts that "information
about the  plaintiff is inextricably intertwined with third party
informa- tion." She does not say, however, that all the "third party 
information" with which information about Mays is "inextrica- bly
intertwined" is itself exempt. Segregation may prove  feasible when
only that "third party information" actually  protected under
Exemption 7(C), such as the aforementioned  "names and addresses and
other identifying information," is  excised.


The Vaughn index also leaves open the possibility that  some of the
"third party information" in question is unpro- tected. It repeatedly
characterizes withheld information as  "investigative details," but
Exemption 7(C) does not necessar- ily cover all "investigative
details" -- a category presumably  distinct from, and potentially far
broader than the "names of  individuals/personal information" to which
the Vaughn index  elsewhere refers. Only the latter, narrower category
of  information is necessarily exempt. See Nation Magazine v.  Customs
Serv., 71 F.3d 885, 895-96 (D.C. Cir. 1995); Safecard  Servs., 926
F.2d at 1206. The present record simply does not  tell us whether and
to what extent release of the "investiga- tive details" referred to in
the Vaughn index would reveal the  identity or otherwise implicate the
privacy interests of any  third party.


Therefore, we must remand this aspect of the case for the  district
court to determine what information is actually pro- tected under
Exemption 7(C) and whether any intelligible  portion of the contested
pages can be segregated for release.  Consistent with our precedent,
the district court may review  the disputed documents in camera in
order to make this  determination. See QuiNon v. FBI, 86 F.3d 1222,


B. Exemption 7(D)


Exemption 7(D) protects against the disclosure of "informa- tion
furnished by a confidential source" and contained in a  record
"compiled by [a] criminal law enforcement authority in  the course of
a criminal investigation." 5 U.S.C. s 552(b).  The applicability of
the exemption in each case depends upon  whether the particular source
who furnished the information  at issue was granted confidentiality,
either expressly or by  implication. See DOJ v. Landano, 508 U.S. 165,


1. Express grant of confidentiality


Mays argues, first, that the district court lacked adequate  evidence
to conclude that one source in this case received an  express grant of
confidentiality. This claim is without merit.  Wassom's affidavit
attributes four of the contested pages to a  single "coded informant"
and describes the DEA's standard  practice of identifying confidential
informants in this way.  The Vaughn index confirms that each of the
four pages is  marked by the same "DEA confidential informant code." 
This evidence is cognizable and unrebutted.


Mays nonetheless maintains that the record is insufficient  to support
summary judgment for the Government in light of  our recent
explication of the evidence required:


To withhold information under Exemption 7(D) by ex- press assurances of
confidentiality, the [Government]  must present "probative evidence
that the source did in  fact receive an express grant of
confidentiality." Davin  [v. DOJ, 60 F.3d 1043, 1061 (3d Cir. 1995)].
Such  evidence can take a wide variety of forms, including  notations
on the face of a withheld document, the person- al knowledge of an
official familiar with the source, a  statement by the source, or
contemporaneous documents  discussing practices or policies for
dealing with the  source or similarly situated sources.


Campbell v. DOJ, 164 F.3d 20, 34 (1998) (emphasis supplied).  This
obviously is not an exhaustive list. In any event, the  Vaughn index
in this case plainly refers to "notations on the 


face of [the] withheld document[s]" -- specifically, the DEA 
confidential informant code -- indicating that this source  received
an express assurance of confidentiality. The Gov- ernment is therefore
entitled to summary judgment with  respect to the four pages so


2. Implied grant of confidentiality


Mays argues, second, that the district court erred in con- cluding that
an implied grant of confidentiality covers three  pages attributable
to a second source who, according to  Wassom's affidavit, provided a
local sheriff's office with infor- mation "about the drug trafficking
activities of [Mays] and  third parties." According to Wassom, because
Mays "has  been convicted of conspiracy to distribute cocaine and
cocaine  base .... [i]t is reasonable to infer that the individuals
who  provided information about [Mays] would fear for their safety  if
their identities or the information they provided was re- vealed."
Indeed, the Government maintains that the crime of  trafficking in
cocaine is inherently so dangerous, and the  relationship of any
individual with information about it suffi- ciently close to the
danger, that confidentiality should auto- matically attach in these


In DOJ v. Landano, 508 U.S. 165 (1993), the Supreme  Court mapped the
contours of the inquiry into implied confi- dentiality. It rejected
the broad presumption urged by the  Government there "that a source is
confidential within the  meaning of Exemption 7(D) whenever the source
provides  information to the FBI in the course of a criminal
investiga- tion." Id. at 181. At the same time, the Court anticipated 
that "often" the Government would be able to point to "more  narrowly
defined circumstances that will support the infer- ence." Id. at 179.
After instancing the case of paid infor- mants, the Court acknowledged
that "[t]here may well be  other generic circumstances in which an
implied assurance of  confidentiality fairly can be inferred." Id.
"For example,  when circumstances such as the nature of the crime
investi- gated and [the informant's] relation to it support an
inference  of confidentiality, the Government is entitled to a


In Landano the Court plainly contemplated making proba- bility
judgments in assessing whether an implied grant of  confidentiality
attaches to a particular type of source. To  illustrate, the Court
observed that"[m]ost people would think  that witnesses to a
gang-related murder likely would be  unwilling to speak to the [FBI]
except on the condition of  confidentiality." 508 U.S. at 179. We have
since identified  the crimes of "rebellion or insurrection, seditious
conspiracy,  and advocating overthrow of the government" as serious 
offenses that, when undertaken by a criminal enterprise with  a record
of violence, warrant the inference that an informant  expects
confidentiality. Williams v. FBI, 69 F.3d 1155, 1159- 60 (1995).


In this case the cooperating individual supplied information  about a
conspiracy to distribute crack and powder cocaine.  The pertinent
question is whether the violence and risk of  retaliation that attend
this type of crime warrant an implied  grant of confidentiality for
such a source. They most as- suredly do.


This court knows all too well the violence and danger that  accompany
the cocaine trade. See United States v. Payne,  805 F.2d 1062, 1065
(1986) (firearms "are as much tools of the  [drug] trade as more
commonly recognized drug parapherna- lia"); Navegar, Inc. v. United
States, 192 F.3d 1050, 1058  (1999) (Congressional Record establishes
"disproportionate  link between [assault] weapons and drug-trafficking
and vio- lent crime"); United States v. Holland, 810 F.2d 1215, 1219 
(1987) (drug transactions "contribute directly to the violent  and
dangerous milieu that Congress sought to eliminate").  Indeed, for the
same reasons that an informant would justifi- ably fear reprisal from
a murderous street gang and expect  the authorities to keep his
information confidential, so too  would an informant reasonably fear
reprisal by conspirators  to distribute cocaine; the two types of
criminal enterprises  are closely comparable in terms of their
organization and  their penchant for violence. See U.S. Sentencing
Commission,  Special Report to the Congress: Cocaine and Federal Sen-
tencing Policy 4 (1997) (trafficking in crack cocaine closely 
associated with "systemic crime ... particularly the type of 


violent street crime so often connected with gangs, guns,  serious
injury, and death"); U.S. Sentencing Commission,  Special Report to
the Congress: Cocaine and Federal Sen- tencing Policy 95-98 (1995)
(chronicles empirics of violent  crime, including "elimination of
informers," that attends traf- ficking in crack and powder cocaine).


Indeed, our notion of what is reasonable police conduct has  long
reflected the heightened danger and risk of violence  posed by cocaine
trafficking. See United States v. Bonner,  874 F.2d 822, 827 (1989)
(police justified in breaking down  door in part because "entrance
into a situs of [cocaine]  trafficking carries all too real dangers to
law enforcement");  United States v. White, 648 F.2d 29, 35 n.29
(1981) (study of  drugs and violence justifies police drawing weapons
because  "odds [are] too high to require policemen to play 'russian 
roulette' each time they effect a drug arrest"). Surely we  must
extend the same consideration to informants when they  help a law
enforcement agency combat this type of crime. To  expose them to the
real potential of retaliation at the hands of  cocaine traffickers
would be not only incongruous but also  perverse.


Mays protests that the presumption urged by the Govern- ment is too
broad, that it would cloak in confidentiality  anything anyone ever
tells a law enforcement officer about  any drug crime. Not so: We
speak here only of those  informants who supply intelligence relating
to the crime of  conspiracy to distribute cocaine; the accumulated
evidence  and experience of this court bear most forcefully upon that 
specific offense.


Mays further objects that a presumption based solely upon  the
"character of the crime" effectively obviates consideration  of "the
source's relation to the crime." 508 U.S. at 179. In  Landano the
Supreme Court said only that both character  and relation --
presumably whether the informant's "relation  to the crime" puts him
at risk of retaliation -- "may be  relevant," id., not that the source
need have any particular  relationship to the crime in order for the
information he  supplies to be deemed confidential. Mays questions


then, our decision in Williams, which involved crimes of a  very
violent nature, turned nonetheless in part upon evidence  that (in
Mays' words) "the particular sources were close to  the group"
responsible for the crimes. The answer is that  with respect to
certain sources we did not have any indepen- dent evidence that they
were close to the group; we inferred  that they were precisely because
they had provided "informa- tion [that] was of an intelligence nature
and generally was not  provided to the public." 69 F.3d at 1158. We
reasoned that  if the sources could furnish such information then they
surely  would have been "vulnerable to retaliation if [their] coopera-
tion had been disclosed." Id. at 1160. That hardly suggests  that
evidence of a close relationship between the source and  the crime is
required in order to infer confidentiality.


In sum, whatever his "relation to the crime," an informant  is at risk
to the extent the criminal enterprise he exposes is of  a type
inclined toward violent retaliation. That a conspiracy  to distribute
cocaine is typically a violent enterprise, in which  a reputation for
retaliating against informants is a valuable  asset, is enough to
establish the inference of implied confiden- tiality for those who
give information about such a conspiracy.


This is not to deny that there may be cases in which a  person who
provides information to the police, such as a  neighborhood anti-crime
crusader, might not expect or even  want to be treated confidentially.
Nonetheless, Landano  plainly contemplates that courts will identify
"generic circum- stances in which an implied assurance of
confidentiality fairly  can be inferred." 508 U.S. at 179. And we have
no doubt  that a source of information about a conspiracy to
distribute  cocaine typically faces a sufficient threat of retaliation
that  the information he provides should be treated as implicitly 


III. Conclusion


For the foregoing reasons we affirm the judgment of the  district court
with respect to Exemption 7(D), and remand  this case for the district
court to address, in a manner 


consistent with this opinion, Mays' claim with respect to  Exemption
7(C).


So ordered.