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


BILLINGTON, GAIL G.

v.

DOJ


99-5402a

D.C. Cir. 2000


*	*	*


Randolph, Circuit Judge: Gail Billington's efforts to pry  loose
information from the Department of Justice are chroni- cled in the two
lower court opinions that preceded this appeal.  See Billington v.
Department of Justice, 11 F. Supp. 2d 45  (D.D.C. 1998) (Billington
I), and Billington v. Department of  Justice, 69 F. Supp. 2d 128
(D.D.C. 1999) (Billington II). In  brief, Gail Billington and her
husband Michael were members  of the National Caucus of Labor
Committees (NCLC), a  political organization founded by Lyndon
LaRouche in the  1960s. Mr. Billington and other members were
prosecuted  and convicted in the 1980s for fund-raising
irregularities. In  1991 and 1992, Gail Billington filed several
Freedom of Infor- mation Act (FOIA) requests with the Federal Bureau
of  Investigation seeking information relating to the federal and 
state investigations of the NCLC. She believes this informa- tion will
exculpate her husband and other convicted NCLC  members. The FBI
withheld some responsive documents in  full and released others in
redacted form, citing exemptions 1,  2, 3, 5, 6, 7(C), 7(D), and 7(E)
to FOIA. See 5 U.S.C.  s 552(b)(1)-(7). Billington challenged several


The district court divided the case into two stages, the first  to
consider all documents but those contained in four FBI  "Internal
Security" files and the second to consider docu- ments from those four
files. In Billington I, the court upheld  all of the government's
withholdings and redactions under  exemptions 1, 2, 3, and 5 to FOIA.
It upheld most of the  government's exemption 7(C) withholdings, but
ordered the  government to reevaluate withholdings relating to a
deceased  individual and to information that had previously been dis-
closed to another FOIA requester. The court also upheld 




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n 1 Billington is also a plaintiff in the NCLC's civil rights suit 
against the Attorney General and the Director of the FBI in the 
Southern District of New York. Several of Billington's claims in  the
instant case relate to redactions on documents the government  has
filed under seal in that case.


most of the government's exemption 7(D) withholdings, but  ordered the
FBI to provide a supplemental affidavit justifying  redactions
concerning entities that received, rather than pro- vided, information
on a confidential basis. The court also  found a State Department
declaration justifying exemption 6  withholdings insufficient and
ordered an in camera review of  the documents. See 11 F. Supp. 2d 45


In Billington II, the district court upheld the government's 
withholdings under exemptions 1, 2, 7(C), 7(D), and 7(E),  including
some withholdings it had questioned in Billington I.  See 69 F. Supp.
2d 128 (D.D.C. 1999).


On appeal, Billington challenges certain of the govern- ment's
exemption 6,2 7(C), 7(D), and 7(E)3 withholdings. She  also challenges
the sufficiency of one Internal Revenue Ser- vice declaration and the
propriety of the district court review- ing another in camera. We have
nothing to add to the  district court's sound reasoning with respect
to the govern- ment's withholding parts or all of documents under




__________

n 2 Exemption 6 permits the government to withhold "personnel  and
medical files and similar files the disclosure of which would 
constitute a clearly unwarranted invasion of personal privacy." See  5
U.S.C. s 552(b)(6).


3 Exemption 7 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 * * * (C) could reasonably be expected to constitute an 
unwarranted invasion of personal privacy, (D) could reasonably be 
expected to disclose the identity of a confidential source, including
a  State, local, or foreign agency or authority or any private
institution  which furnished information on a confidential basis, and,
in the case  of a record or information compiled by criminal law
enforcement  authority in the course of a criminal investigation or by
an agency  conducting a lawful national security intelligence
investigation, in- formation furnished by a confidential source, (E)
would disclose  techniques and procedures for law enforcement
investigations or  prosecutions, or would disclose guidelines for law
enforcement  investigations or prosecutions if such disclosure could
reasonably be  expected to risk circumvention of the law * * *." See 5


tions 7(C) and 7(E), and therefore reject this portion of  Billington's
appeal substantially for the reasons given by the  district court. Of
the remaining issues we reverse and re- mand (with one exception, see
note 5 infra) for the reasons  given in the balance of this opinion.


I.


FOIA requires the government to disclose, upon request,  broad classes
of documents identified in 5 U.S.C. s 552(a). It  exempts from
disclosure nine categories of documents de- scribed in 5 U.S.C. s
552(b). The government is entitled to  summary judgment if no material
facts are in dispute and if it  demonstrates either that withheld or
redacted documents are  not required to be disclosed under s 552(a) or
are exempt  from disclosure under s 552(b). See, e.g., Computer
Profes- sionals for Social Responsibility v. United States Secret 
Serv., 72 F.3d 897, 902 (D.C. Cir. 1996); Gallant v. NLRB, 26  F.3d
168, 171 (D.C. Cir. 1994). We review the district court's  grant of
summary judgment de novo. See Spirko v. United  States Postal Serv.,
147 F.3d 992, 998 (D.C. Cir. 1998);  Nation Magazine v. United States
Customs Serv., 71 F.3d  885, 889 (D.C. Cir. 1995).


A.


The government withheld or redacted numerous documents  under exemption
7(D), which protects law enforcement infor- mation obtained from
sources who received an express or  implied assurance of
confidentiality. See Campbell v. United  States Dep't of Justice, 164
F.3d 20, 34 (D.C. Cir. 1998). The  question posed in exemption 7(D)
cases "is not whether the  requested document is of the type that the
agency usually  treats as confidential, but whether the particular
source spoke  with an understanding that the communication would
remain  confidential." United States Dep't of Justice v. Landano, 508 
U.S. 165, 172 (1993). Landano rejected the government's  suggestion
that assurances of confidentiality are "inherently  implicit" when
somebody provides information to a federal  law enforcement agency.


In this case, the government's justifications for withholding  or
redacting certain documents under exemption 7(D) fall  short of the
particularized justification Landano requires.  The government's
declarations do not sufficiently detail cer- tain express assurances
of confidentiality and do not ade- quately explain implied assurances
of confidentiality for infor- mation received after 1977.


The government employed a coding system to correlate  claims of
exemption on responsive documents to the justifica- tions in its
declarations. It identified seven exemption 7(D)  categories using the
notations (b)(7)(D)-1, (b)(7)(D)-2, and so  on through (b)(7)(D)-7.
See Joint Appendix 43-44. Billing- ton challenges four of these
categories: (b)(7)(D)-3 ("name  and information provided by source
with an expressed prom- ise of confidentiality"), (b)(7)(D)-4 ("name,
identifying data  and information provided with an implied promise of
confi- dentiality"), (b)(7)(D)-5 ("information provided by non-federal
 law enforcement agencies under an implied promise of confi-
dentiality"), and (b)(7)(D)-7 ("name of a foreign government  agency
who has an expressed promise of confidentiality").  See Joint Appendix


The government's declarations justifying exemptions coded  (b)(7)(D)-3
do not "present 'probative evidence that the  source did in fact
receive an express grant of confidentiality'."  See Campbell v. United
States Dep't of Justice, 164 F.3d 20,  34 (D.C. Cir. 1998). The FBI's
August 29, 1997, declarations  supporting the (b)(7)(D)-3 redactions
state that "this informa- tion was received with the explicit
understanding that it  would be held in the strictest confidence. It
is obvious from  the released information that these sources warrant
confiden- tiality." Joint Appendix 55. This may be obvious to the 
affiant, but it is not obvious to us. This bald assertion that 
express assurances were given amounts to little more than  recitation
of the statutory standard, which we have held is  insufficient. See
Campbell, 164 F.3d at 30 ("the affidavits  must show, with reasonable
specificity, why the documents  fall within the exemption. The
affidavits will not suffice if the  agency's claims are conclusory,
merely reciting statutory  standards, or if they are too vague or


United States Dep't of Justice, 830 F.2d 210, 219 (D.C. Cir.  1987).
The declaration goes on to state that "the manner in  which the FBI
actually obtains information from these  sources is also demonstrative
of the express promise of  confidentiality under which it was
received. The information  is often received at times and at locations
which guarantee  the contact will not be noticed." Joint Appendix 56.
The  circumstances under which the FBI receives information  might
support a finding of an implied assurance of confiden- tiality, but
they do not demonstrate the oral or written act  required for an
express assurance of confidentiality. Cf.  Landano, 508 U.S. at 179
(suggesting "generic circumstances  in which an implied assurance of
confidentiality fairly can be  inferred").


The FBI's March 11, 1998, declaration at least avers that  evidence of
express assurances exists, recorded either on the  document containing
the information or in some other place.  Such a memorialization made
contemporaneously with a re- port summarizing information received
from a confidential  source certainly suffices. See Campbell, 164 F.3d
at 34. The  trouble is that several of the contested documents do not 
contain the notations mentioned in the March 11 declaration.4  The
giving of express assurances may well be recorded  elsewhere, but the
mere recitation of that fact does not  provide "detailed and specific
information demonstrating 'that  material withheld is logically within
the domain of the exemp- tion claimed'." Campbell, 164 F.3d at 30. At
the very least  the government must indicate where these assurances of
 confidentiality are memorialized. In light of these deficien- cies,
we reverse the grant of summary judgment as to  documents that do not
reveal an express assurance of confi- dentiality on their face and
remand to allow the government  to make a stronger showing.5




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n 4 Billington has withdrawn her challenge to documents that state  a
source received an express assurance of confidentiality. See 
Appellant's Reply Brief at 16.


5 We have reviewed and now reject Billington's objections to the 
government's (b)(7)(D)-7 (express assurances of confidentiality to 


Billington also attacks redactions based on an implied  assurance of
confidentiality coded (b)(7)(D)-4 and (b)(7)(D)-5.  The character of
the crime and the source's relation to it may  support an inference
that the source provided information  under an implied assurance of
confidentiality. See Landano,  508 U.S. at 179. The FBI's March 11,
1998, declaration and  attached exhibits indicate that law enforcement
sources would  not have cooperated absent an implied assurance of
confiden- tiality. They amply document the NCLC's violent tendencies 
and appetite for vengeance. See Joint Appendix Under Seal  41-43 and


The government's documentation primarily concerns the  period before
1978. As Billington points out, the FBI itself  recognized that the
NCLC in the late 1970s publicly disa- vowed violence in favor of
seeking change through the politi- cal process. Two FBI documents
dated July and September  1977 report the change in organizational
focus, note the  absence of recent violent incidents associated with
the NCLC,  and recommend closure of investigations into the NCLC. 
According to Billington, the FBI's recognition of a reincarnat- ed
NCLC indicates that FBI sources after 1977 might have  cooperated
without an implied assurance of confidentiality.


Implied confidentiality analysis proceeds from the perspec- tive of an
informant, not the law enforcement agency as  Billington's argument
assumes. However, the government's  perceptions are relevant insofar
as they reflect changes in the  NCLC that were perceptible to
informants. Several of the  redactions for which the government
invoked an implied  assurance of confidentiality contain information
provided to  the FBI in the 1980s, well after the NCLC underwent a 
public metamorphosis. As a result, we cannot be certain that  the
circumstances suggesting an implied assurance of confi-




__________

n foreign governments) withholdings. The FBI's March 11, 1998, and 
October 29, 1998, declarations adequately document the giving of 
express assurances of confidentiality to the relevant foreign agen-


dentiality obtained in the 1980s.6 A remand is therefore  appropriate
to require the government to identify or supply  evidence that
informants predicated their assistance on an  implied assurance of
confidentiality after 1977.7


B.


Billington also claims that declarations provided by the  Department of
State and the Internal Revenue Service are  inadequate because they
contain insufficient segregability  analysis. We agree. Under FOIA,
"any reasonably segrega- ble portion of a record shall be provided to
any person  requesting such record after deletion of the portions
which  are exempt under this subsection." 5 U.S.C. s 552(b). This 
segregability requirement limits claims of exemption to dis- crete
units of information; to withhold an entire document, all  units of
information in that document must fall within a  statutory exemption.
See Trans-Pacific Policing Agreement  v. United States Customs Serv.,
177 F.3d 1022, 1027 (D.C.  Cir. 1999) ("It has long been a rule in
this Circuit that non- exempt portions of a document must be disclosed
unless they  are inextricably intertwined with exempt portions."). If
the  parties do not address segregability, the district court must 
raise it sua sponte. See Trans-Pacific, 177 F.3d at 1028.


The Internal Revenue Service heavily redacted two docu- ments. See
Joint Appendix 117 and 128. The Service's  declaration contains no
segregability analysis, and the district  court made no segregability
finding. We therefor must re-




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n 6 A couple of documents in the exhibits to the FBI's March 11,  1998,
declaration (under seal) elliptically suggest the NCLC contin- ued to
harass its opponents into the 1980s. One is a heavily  redacted letter
dated September 24, 1982, located in Exhibit II.  The other is a
memorandum dated February 1, 1983, located in  Exhibit I, part 2.


7 We have doubts that NCLC members' participation in financial  crimes
in the 1980s, without more, would support an inference that  sources
received an implied assurance of confidentiality. Cf.  Schrecker v.
United States Dep't of Justice, 74 F. Supp. 2d 26, 35  (D.D.C. 1999)
(passport fraud and contempt of Congress found  sufficiently serious
to infer confidentiality).


mand for a finding in this regard. The court also received an  in
camera declaration, which Billington correctly notes is  disfavored.
See Armstrong v. Executive Office of the Presi- dent, 97 F.3d 575,
580-81 (D.C. Cir. 1996) ("Case law in this  Circuit is clear that when
a district court uses an in camera  affidavit, it must both make its
reasons for doing so clear and  make as much as possible of the in
camera submission  available to the opposing party."). Because the
Service's  public declaration is sufficient in all respects except
segrega- bility, we need not decide the propriety of the in camera 


The State Department withheld a 14-page document con- taining notes
from an interview in its entirety and released a  one-page document
with a couple of lines redacted. The  district court initially found
the Department's declaration  inadequate to support the Department's
exemption 6 claim  and ordered an in camera review of the documents.
See  Billington I, 11 F. Supp. 2d at 71-72. In Billington II, the 
district court made no written findings regarding the in  camera
review. In addition, the Department's declaration  appears inadequate
to support withholding the entire 14-page  document. It may turn out
that no further meaningful  segregation of information can be made,
but we cannot tell  from the record. We are also uncertain that
personal identi- fying information so permeates the document that no
part of  it can be released. On remand, the district court should 
determine the applicability of exemption 6 to these documents  and
examine whether any non-exempt portions can be re- leased.


Affirmed in part, vacated in part, and remanded.