COPENHAVER, District Judge:
In April 1974, appellant Nix was incarcerated at the South Carolina Central Correctional Institution of Columbia. Nix alleges he was gassed and beaten by several of the institution's guards without provocation on his part. As a consequence of that incident, two letters written by four of Nix's fellow inmates were received by the Federal Bureau of Investigation (FBI), complaining of
Nix brings this action pursuant to the Freedom of Information Act (hereinafter referred to as FOIA), 5 U.S.C. § 552, as amended.
Prior to institution of this suit, Nix unsuccessfully sought to obtain these materials from the Civil Rights Division of the Department of Justice. After commencement of this action, Nix was furnished with the following materials, constituting but a minor portion of that which he requested:
Various deletions were made from the material so furnished, including FBI file numbers, the names of the investigating or reporting FBI agents, identification numbers, some preprinted form language and the name of the assistant United States Attorney.
Subsequently, Nix also received from the FBI a copy of the report of its interview with inmate Isenock. Nix had obtained Isenock's consent for this purpose and the FBI deemed the inmate's consent to be a waiver of his right to privacy. Deletions were made from the interview report, including the names of guards mentioned by Isenock.
At the direction of the court below, the FBI filed the disputed material with the court for an in camera inspection in keeping with the provisions of 5 U.S.C. § 552(a)(4)(B). Both the district court and this court have examined the disputed material which consists essentially of the following:
Prior to the 1974 amendments to the Freedom of Information Act, virtually all of the material at issue here would have been deemed exempt simply on the ground that it constitutes part of the investigatory records compiled for law enforcement purposes by a criminal law enforcement authority in the course of a criminal investigation. Center for National Policy Review on Race & Urban Issues v. Weinberger, 163 U.S.App.D.C. 368, 502 F.2d 370 (1974).
The 1974 amendments, which were enacted on November 21, 1974, and became effective February 19, 1975, narrowed and defined the exemptions from disclosure as now set out in the subsections to 5 U.S.C. § 552(b).
The Justice Department contends that the withheld material is exempt from disclosure by virtue of the provisions of various subsections of section 552(b): (2) (internal personnel rules and practices); (6) (personnel and medical files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy); (7)(C) (unwarranted invasion of personal privacy); and (7)(D) (confidential source identity and confidential information). In applying these exemption provisions, it would appear that Congress intended the courts to balance the public and private interests involved. The United States Supreme Court has so held in the course of employing the subsection (6) exemption. Department of the Air Force v. Rose, 425 U.S. 352, 372-73, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). This court has found the balancing test to be equally appropriate when construing subsection (7)(C). Deering Milliken, Inc. v. Irving, 548 F.2d 1131, 1136 n.7 (4th Cir. 1977). We find the balancing test applicable as well to subsections (2) and (7)(D).
In employing the balancing test, we are mindful that FOIA exemptions are to be narrowly construed in accordance with the legislative purpose of Congress that disclosure rather than secrecy is the dominant objective of the Act. Department of the Air Force v. Rose, 425 U.S. at 360-61, 96 S.Ct. 1592. As we have recently observed,
The record in this case indicates that Nix has also filed a civil rights suit in the same district court below on his own behalf and on behalf of an asserted class alleging mistreatment by the guards at the South Carolina Correctional Institution of Columbia. That suit concerns the same incident involved in the FBI investigation under consideration in this FOIA action as well as prison conditions generally. As this court observed in Deering Milliken, 548 F.2d at 1134-35, FOIA's purpose is to inform the public about the action of government agencies. It was not designed to supplement the rules of civil discovery. Thus, the right of Nix to obtain information is neither enhanced nor diminished because of his needs as a litigant, but is to be measured by the right of the public to obtain the same information.
I. The Inmate Letters and FBI Interviews (Excluding Physician's Statement)
Although the four inmates did sign their names to the two letters to the FBI, the accusations of impropriety contained in the letters are of such a nature that individuals in the vulnerable position of these informers, facing potential reprisal from the very prison guards and prison officials against whom they complain, would hardly have made the charges unless they were confident that their identities would remain concealed. In applying the confidentiality exemption of subsection (7)(D), it is enough to show that the information was furnished under circumstances from which an assurance of confidentiality could be reasonably inferred.
At the time the letters were written in May 1974, being prior to the 1974 FOIA amendments, the state of the law was such that investigatory files compiled for law enforcement purposes were deemed exempt from disclosure.
For essentially the same reasons, the FBI interviews with the guards, inmates and a prison supervisory official are exempt as having been given under an implied assurance of confidentiality, as found by the court below. The interviews were conducted at a time prior to the 1974 FOIA amendments when it was reasonable for the interviewees to understand that investigatory files compiled for law enforcement purposes were exempt from disclosure. Further, inasmuch as a number of the guards were themselves the focus of the investigation, the prospect of reprisal of guard against inmate and even inmate against guard becomes an entirely realistic one. As found by the court below, the prison altercation being investigated was one between a prisoner and prison guards and in such a situation natural resentment would be high with a definite potential for creating conflicts and jeopardizing the personal well-being of the prisoners and guards alike. Moreover, it is not without significance that, of the some thirty guards and inmates other than Nix interviewed by the FBI, only Isenock has seen fit to consent to the release of his interview. Accordingly, the district court's finding of an implied assurance of confidentiality to the guards, inmates and the prison supervisory official interviewed by the FBI is readily supported by the record in the case and by this court's own in camera inspection. Thus, the identity of the guard, inmate and prison supervisory official interviewees is free from disclosure under the confidential source exemption of subsection (7)(D).
The second phase of subsection (7)(D) also serves to protect, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, "confidential information furnished only by the confidential source." As already noted, the joint explanatory statement of the House and Senate conferees states that "all of the information furnished only by a confidential source may be withheld . . . ." (emphasis in original).
This suggests in turn that such information is not protected under the second phase of subsection (7)(D) unless it is furnished "only" by confidential sources. It is apparent from a review of the record in this case that the information released by the FBI, especially the FBI's interviews with Nix and inmate Isenock, contains some of the same revelations as are to be found in the inmate letters and FBI interviews with other inmates, guards and the prison supervisory official. To that extent, the information which the FBI declines to disclose stems from nonconfidential sources, namely, Nix and Isenock.
Nevertheless, we conclude that no part of the inmate letters and FBI interviews with other inmates, guards and the prison supervisory official is subject to disclosure. Although it is by no means clear that revelation of the parts of these inmate letters and other interviews corresponding to the Nix and Isenock versions would reveal the identity of the authors or interviewees, there is a substantial risk that their identities would thereby become ascertainable. This risk becomes more apparent when it is recognized that the focus of one's attention in this
Inasmuch as the withheld inmate letters and interviews are found wholly exempt under subsection (7)(D), it becomes unnecessary to consider whether their disclosure is also exempt under subsection (7)(C) protecting unwarranted invasion of personal privacy.
II. Reports from Non-Federal Law Enforcement Sources
The FBI has obtained certain records provided by sources within a non-federal law enforcement organization. The FBI insists that these records were supplied to it in confidence, that such records are not generally available to the public, that they were obtained by FBI agents for official purposes and contain criminal records of individuals as well as candid remarks and observations of non-FBI law enforcement officials, and that release of this information would seriously inhibit the FBI's relationship with its confidential sources and with other law enforcement personnel. We agree with the court below that these materials were obtained in confidence and are fully protected by subsection (7)(D). Church of Scientology of California v. United States Department of Justice, 410 F.Supp. 1297 (C.D.Cal.1976).
III. Internal Practices
We next take up those miscellaneous materials which include file numbers, routing stamps, cover letters and secretary initials. The district court denied release of these materials pursuant to subsection (2) which protects from disclosure matters related solely to the internal personnel rules and practices of an agency. 5 U.S.C. § 552(b)(2) (1970).
Merely how the FBI routes and labels its investigations, to whom its agents send reports of the investigations, and who does the typing of the reports are ordinarily not of such genuine and significant public interest as to require FOIA disclosure. In this instance, these items are at most routine matters of mere internal significance and, as such, are protected from disclosure by subsection (2). Maroscia v. Levi, 569 F.2d 1000 (7th Cir. 1977).
Nix further contends that other material is being withheld merely because notations of file numbers, routing stamps, secretary initials and the like are to be found on documents to which he is otherwise entitled. Our in camera inspection of all these materials satisfies us that such is simply not the case. Rather, the FBI has undertaken here to comply with the requirement of 5 U.S.C. § 552(b) that "Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection."
IV. Identity of FBI Agents and Assistant United States Attorney
The FBI also seeks to maintain the secrecy of the identity of the FBI agents who conducted the interviews. Nondisclosure is sought under subsection (7)(C) on the ground that identification of the FBI agents would constitute an unwarranted invasion of their personal privacy. It is contended by Nix, however, that public officials and employees are not entitled to shield their identities from public disclosure
One who serves his state or nation as a career public servant is not thereby stripped of every vestige of personal privacy, even with respect to the discharge of his official duties. Public identification of any of these individuals could conceivably subject them to harassment and annoyance in the conduct of their official duties and in their private lives.
The court recognizes that, in a matter arousing greater public interest, nondisclosure of these officials' identity might be overborne by the legitimate interest of the public. See Deering Milliken, 548 F.2d at 1136-37. This is not such a case.
V. Physician's Statement
The last of the withheld information which Nix seeks concerns the investigation made by the FBI into his physical condition and the medical treatment administered to him. The FBI obtained the statement of a physician which the court below deemed exempt by virtue of subsection (6), protecting "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." The medical record in question here, however, is that of the very individual who seeks its disclosure. Thus, there is no invasion of his privacy, and subsection (6) is inapplicable.
The FBI insists that release of this statement might subject the medical personnel named therein to claims that improper medical treatment was delivered and, perhaps, to harassment by civil suits. For reasons similar to those assigned with respect to the propriety of withholding the names of the investigating FBI agents, it is concluded that the name of the reporting physician, as well as that of the medical technician and the other doctor mentioned in the statement, may in this instance be deleted pursuant to subsection (7)(C) which exempts disclosure constituting an unwarranted invasion of personal privacy. We find no significant public interest in the identity of the attending medical personnel, particularly when balanced against their interest in avoiding harassment or other embarrassment which release of their identities may well precipitate.
Accordingly, the substantive content of the statement by the physician must be released, with deletions therefrom being made in keeping with this opinion.
VI. Attorney's Fees
FOIA provides for an award of attorney's fees to a complainant who has substantially prevailed, 5 U.S.C. § 552(a)(4)(E):
It cannot be said that Nix has substantially prevailed. The only fresh information of consequence obtained by him as a result of this suit consists of the photographs of his injuries and a half-page physician's statement of the treatment of those injuries. It is significant to note that a member of the public other than Nix would likely have been denied access to both the photographs and the physician's statement by virtue of
Even if all of the rather limited amount of material derived by Nix were deemed sufficient to qualify him as substantially prevailing, Nix must nevertheless be denied recovery of attorney's fees. The United States Court of Appeals for the District of Columbia Circuit has extensively reviewed the legislative history of FOIA's attorney's fees provisions and the factors a district court should use in exercising its discretion in awarding such fees. Nationwide Building Maintenance, Inc. v. Sampson, 182 U.S.App.D.C. 83, 559 F.2d 704 (1977), and Cuneo v. Rumsfeld, 180 U.S.App.D.C. 184, 553 F.2d 1360 (1977). This court agrees with the District of Columbia Circuit that an award of attorney's fees is not automatic, but is to be made where doing so will encourage fulfillment of the purposes of FOIA. In this case, Nix has failed to show benefit to the public by his action. On the contrary, Nix brought this suit to benefit himself by supplementing the discovery procedure in his civil rights action currently pending in the district court. Further, the government's withholding of the records in this case has been founded largely on a reasonable basis in law. Under these circumstances, this court cannot say that the district court abused its discretion in denying Nix his attorney's fees and litigation costs.
On remand, the district court shall enter an appropriate order releasing the material referred to in this opinion.
AFFIRMED AS MODIFIED AND REMANDED.
(B) On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action.