Opinion for the Court filed by Chief Judge SPOTTSWOOD W. ROBINSON, III.
Dissenting Opinion filed by Circuit Judge MacKINNON.
SPOTTSWOOD W. ROBINSON, III, Chief Judge:
The controversy in this case centers on the efforts of the appellant, Joseph P. Londrigan, to uncover the identities of persons who furnished information about him to the appellee, the Federal Bureau of Investigation, during the course of an investigation of his qualifications for federal employment. Presented for decision is a question going to the very heart of the Privacy Act
The data specifically sought by Londrigan are the names of persons who provided the FBI with information about him in 1961, long before the advent of the Privacy Act, when he was under investigation for a position as a Peace Corps volunteer. The FBI's file includes statements from private individuals as well as from employees of schools, businesses, and state and local governmental agencies.
Londrigan initiated his endeavor to obtain his FBI file in October, 1975, when he wrote to his congressman to ask for assistance in acquiring it. His letter was forwarded to the FBI, and in March, 1976, he received copies of the materials on file, albeit with substantial deletions made assertedly under authority of Exemption (k)(5) of the Privacy Act.
Shortly after answering Londrigan's complaint, the FBI submitted a motion for summary judgment supported only by an affidavit prepared by Special Agent Charles J. Wroblewski, then a supervisor of the FBI's Freedom of Information-Privacy Act Branch.
Wroblewski did not participate in the Londrigan investigation himself, and apparently made no effort to contact any of the agents who had conducted the recorded interviews.
In short, as the FBI admits, the Wroblewski affidavit reduces to the proposition that "any [background] investigation conducted prior to the effective date of the Privacy Act must be regarded as having been conducted under an implied promise of confidentiality."
In response to the FBI's summary-judgment motion, Londrigan moved to strike the Wroblewski affidavit pursuant to Rule 56(e) of the Federal Rules of Civil Procedure
Londrigan's interrogatories attempted to unearth the basis of the statements contained in the Wroblewski affidavit. In responding on behalf of the FBI, Wroblewski made several statements of particular relevance to the matter before us. For example, in addressing "what percentage of persons interviewed ... assume [that their identities will be kept confidential],"
Despite these revelations of the tenuous nature of the affidavit's predicates, the District Court granted the Government's motion for summary judgment.
Londrigan appeals this decision, as well as the District Court's disposition of his Rule 56 motions.
II. Exemption (k)(5) of the Privacy Act
The Privacy Act came into being in conjunction with 1974 legislation amending the Freedom of Information Act (FOIA).
In providing for divulgence of the contents of agency records to individuals to whom they pertain, the structure of the Privacy Act is similar to that of the Freedom of Information Act.
We think that this approach is eminently correct. To allow an agency to withhold information simply by asserting that all background investigations conducted prior to the effective date of the Privacy Act must be deemed to have been undertaken under implied promises of confidentiality is to defeat the congressional intent underlying the design of the statute. In response to concern that agencies such as the FBI would be hampered in their law enforcement efforts by the Privacy Act's disclosure mandate, Congress specifically exempted information held by these entities for law enforcement purposes.
The legislative history of the Privacy Act provides clear support for the conclusion that neither a conclusory affidavit nor a general examination of documents suffices to validate a finding of an implied promise of confidentiality. While neither the House nor the Senate committee report is particularly helpful on this point, the debates are most informative. Exemption (k)(5) originated as an amendment to H. 16373, the House bill that later became the Privacy Act.
The introduction of this proposed addition to the bill sparked a somewhat heated discussion. Objections were raised on the theory that it would insulate from disclosure far too much of the information contained in files theretofore compiled prior.
Representative Erlenborn also indicated, in answer to a question from Representative Goldwater, that access to the courts would provide the necessary "check and balance" on agency discretion with respect to the "determin[ation] whether in fact information is included, or whether in fact third parties should be made available."
The import of this excerpt from the legislative history is plain, and it is precisely in line with our own conclusions and those of the Nemetz court.
It follows that this case must be remanded to the District Court for further investigation of the facts and circumstances surrounding the acquisition of the information contained in the FBI's file on Londrigan. In order to facilitate this process, there are several steps that the District Court appropriately may take. First, a careful review of each document should be undertaken to determine the nature of the source — for example, record custodian, personal acquaintance or the like — and whether any statement contained in the document
The District Court may find other indicia of the presence or absence of promises of confidentiality, and the court should feel free to weigh them, but we hasten to point out that the mere fact that the FBI conducted the investigation or that the comments were of a personal nature does not dictate the result.
III. The Rule 56 Motions
A. Rule 56(e)
A principal command of Rule 56(e) is straightforward: "Supporting and opposing affidavits" on summary-judgment motions "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."
Irrefutably, the most critical part of the Wroblewski affidavit does not rise to the level Rule 56(e) demands.
In sum, Wroblewski's affidavit undertook precisely the type of presentation Rule 56(e) prohibits. The District Court's refusal to grant Londrigan's motion to strike the Wroblewski affidavit must be rectified. On remand, the court must disregard the impugned part of the affidavit
B. Rule 56(f)
As two well-known commentators have explained, "Rule 56(f)
Unfortunately, however, the interrogatories did not fill the gaps in the Wroblewski affidavit. While the written interrogatories may indeed have been warranted, Londrigan additionally should have been permitted to procure such depositions as he could in order to obtain the insights of the agents who actually prepared the documents in dispute. Even if the District Court initially assumed that interrogatories would be sufficient, the answers to those interrogatories clearly demonstrated the need for testimony of agents personally involved in the investigation. Therefore, on remand, the District Court should allow Londrigan the opportunity to take those depositions should he renew his request.
For the reasons we have set forth, the District Court's grant of summary judgment
MacKINNON, Circuit Judge (dissenting).
In 1978, Appellant, Joseph P. Londrigan, instituted this suit under the Privacy Act of 1974, 5 U.S.C. § 552a, seeking to compel Appellee, the Federal Bureau of Investigation (FBI), to disclose primarily the names of individuals who had given information to the FBI in a background investigation it had conducted of him in 1961. In response to Appellant's administrative request the FBI furnished him with all the requested information deleting only the data that would identify sources who, the FBI contends, furnished information under implied promises of confidentiality. On a record which included a comprehensive affidavit the District Court granted the FBI's motion for summary judgment finding that the record "reveals sufficient circumstances indicating the existence of implied promises of confidentiality." (App. 96) I would affirm this ruling.
I. FBI Investigation
In August 1961, Appellant applied to the Peace Corps to be considered for the position of Peace Corps volunteer. (App. 34-35) As is standard government policy in such a case, the FBI ran the usual background investigation of Appellant to determine his suitability and qualification for the Peace Corps. The nature of the sources contacted by the FBI included school personnel, personal references, neighborhood and social acquaintances, and employment associates. The substance of the inquiries related to Appellant's character, reputation, loyalty to the United States, associates, conduct, intelligence and abilities.
As a result of this investigation, the FBI compiled a file consisting of twelve documents. The first is dated August 18, 1961 and the last is dated September 8, 1961. (App. 13) Most of the information gathered is complimentary toward the Appellant and his family. However, a few sources provided information or opinions that were adverse, and could prove damaging to Appellant in certain contexts.
II. Privacy Act Request
On September 27, 1975, Appellant sent a letter to his Congressman requesting his assistance in obtaining "any information the Government has" about the plaintiff, pursuant to the Freedom of Information-Privacy Acts. The Congressman forwarded this request to the FBI, who advised him that the request would be processed in line with the current work load of such requests. The FBI informed Appellant that it needed additional identifying data to aid it in locating any documents. Appellant supplied this information, including a notarized signature. By letter dated March 16, 1976, former FBI Director Clarence M. Kelley released to Appellant thirty-six (36) pages of material from the one FBI file pertaining to him. The letter informed him that certain information was withheld as it was exempt from disclosure pursuant to 5 U.S.C. § 552a, infra. In particular, it was apparent from the Xerox copies of the FBI files that were delivered to Appellant that the names or identifying facts of all sources who had supplied information to the FBI under an implied promise of confidentiality were deleted.
The basic thrust of the Privacy Act of 1974 is to allow individuals access to any records the government may have compiled pertaining to the individual. However, certain material is exempt under this scheme. For purposes of this action, the pertinent exemption is found in 5 U.S.C. § 552a(k)(5),
5 U.S.C. § 552a(k)(5) (emphasis added).
Since the effective date of the above section was 270 days after December 31, 1974 (88 Stat. 1910) and the investigation of Appellant occurred before 1974, the FBI was relying on the last phrase of this provision, i.e., that the sources to the Londrigan investigation furnished information to the FBI under an implied promise that their identity would be held in confidence.
Appellant appealed the decision of Director Kelley to withhold the identity of those who had been interviewed. On March 9, 1977, Richard L. Thornburgh, Acting Deputy Attorney General, United States Department of Justice, advised Appellant that Director Kelley's decision to withhold certain information was affirmed.
Appellant filed this action in the District Court on July 24, 1978. On September 15, 1978, on the basis of the affidavit of Special Agent (SA) Charles Wroblewski, a supervisor in the Freedom of Information-Privacy Act Branch, Records Management Division of the FBI Headquarters, and the filed answers to interrogatories, the FBI moved for summary judgment. SA Wroblewski is familiar with Appellant's file at the FBI. The content of the affidavit and answers to interrogatories are discussed in detail in VI, infra. It is sufficient at this point to state that the affidavit and answers to interrogatories described FBI policy in 1961, the customers of the agency, its relationship with the people it interviewed, and the needs and expectations of the agency and its sources in 1961. On the basis of such facts the Appellee contended that the sources who were interviewed furnished information under an implied promise of confidentiality.
The supporting affidavit and the answers to interrogatories were not contradicted in any respect. On the basis of the uncontroverted record before it, the District Court granted summary judgment for the FBI, holding that upon an examination of the documents at issue, the kinds of people interviewed
III. Issues Raised by Appellant
Appellant concentrates on four major issues in his appeal. First, he argues that the disclosure exemption in § 552a(k)(5) is not a blanket exemption; the evidence to support a motion for summary judgment must be directed to the particular circumstances of each investigation and source at issue. Second, he contests the District Court's reliance upon the affidavit and answers to interrogatories to establish that the interviewed sources furnished information under an express or implied promise of confidentiality. He characterizes the FBI procedures as "general policy," insufficient to support a summary motion under Rule 56(e) of the Federal Rules of Civil Procedure. In essence, Appellant contends that SA Wroblewski was incompetent to attest to the facts set forth in his affidavit and answers to interrogatories.
Appellant's next two points attempt to limit the coverage of § 552a(k)(5). Third, Appellant contests the withholding of the names of the sources who only furnished laudatory information, since they would not fear embarrassment toward Appellant because of their responses. Finally, Appellant argues that the Court should compel disclosure of the names of sources supplying material in their official capacities, i.e. credit bureau personnel, school personnel, union officials, state and local law enforcement employees.
The fatal flaw in all of Appellant's reasoning is that he misconstrues the plain meaning of the statute. Much of Appellant's argument stems from an attempt to construe the exemption as requiring a contractual promise, either implied or express, between two parties. For example, Appellant's reading of the statute would mean the Court would have to determine what each FBI agent expressly or impliedly promised to each source, and in turn what each source anticipated, expected, or relied upon regarding the confidentiality of their names and answers. The plain wording of the statute indicates that Congress never intended that "implied promise" should be so construed. As will be established more specifically in V, infra, the statute anticipates a unilateral promise from the agency that could be impliedly held out to the sources interviewed. The person interviewed need not act solely in reliance upon the promise. As long as it can be established that such information was obtained under an implied promise from the FBI in general, the specific details of what each individual agent or interviewed source perceived is irrelevant. The record developed by the FBI met this burden of proof.
IV. Procedural Requirements
The responsibility of the trial court in Privacy Act suits was statutorily established in 5 U.S.C. § 552a(g)(3)(A) which provides:
Since a de novo determination is required, the court is not bound by agency rulings.
In a Freedom of Information Act case where the plaintiffs also sought disclosure of withheld information from the Department of the Air Force, this Court discussed the role of appellate review. Mead Data Central, Inc. v. Dept. of Air Force, 566 F.2d 242 (D.C.Cir.1977). Since FOIA has a similar exemption, 5 U.S.C. § 552(b)(7)(D), and a similar de novo review provision, 5 U.S.C. § 552(a)(4)(B), the Mead Data discussion is instructive as to this Court's role in this case.
Mead Data Central, supra at 251.
Since no error of law is claimed in this case, the Court is faced only with the task of determining whether the factual finding of the District Court was clearly erroneous, or whether the alleged inadequacy of the supporting affidavit and answers to interrogatories deprived Appellant of the opportunity to effectively present his case to the District Court. I find that the FBI should prevail on both points.
V. Legal Definitions of "Implied Promise"
In order to better understand whether an implied promise of confidentiality existed in this case, it is essential to consider the exact wording of the statute, and how other courts have defined "implied promise." The statute very specifically refers to two kinds of promises: express and implied. An express promise would include a spoken or written promise by the FBI to the source that his identity would remain confidential.
The key words in the statute for this case are that an agency may withhold the "identity of a source who furnished information ... under an implied promise that the identity of the source would be held in confidence." 5 U.S.C. § 552a(k)(5) (emphasis added). This language includes a unilateral promise emanating from the agency. It does not go so far as to require an implied or express contract between the FBI and the source. To so hold would ignore the obvious intent of the statute which in referring to both express and implied promises clearly indicates that in imposing the standard of an "implied promise" Congress did not intend to require the promise to be "express." Had Congress so intended it would have referred to "express" promises in both instances. Also no conditional wording exists; the source need not act upon the condition that his identity remain confidential, or only because of this confidentiality. To establish an implied promise, the source need not even have cared or known that it existed. This plain meaning of the statute immediately precludes any necessity of determining the subjective thoughts of the sources in the Londrigan investigation. All the Court need determine is the direct and circumstantial evidence under which FBI investigations, such as that of Londrigan, were conducted in 1961.
Numerous courts have defined the term "implied" or "implied promise." In Foute v. Bacon, 24 Miss. (2 Cushm.) 156, 164 (1852), the Court held that
Many other courts have interpreted the term "implied" as used in such phrases as "implied consent" or "implied contract." Their method of determining whether a particular set of facts raises an implication is instructive to this case. For instance, in Farm Bureau Mut. Ins. Co. of Mo. v. Dryden, 492 S.W.2d 392, 394 (Mo.App.1973), the Court held that the word "implied" means a necessary deduction from the circumstances, general language, or conduct of the parties. "Implied consent" has been interpreted as consent manifested by signs, actions, facts, inaction or silence which raises a presumption that the consent has been given. Hill v. Arkansas, 253 Ark. 512, 487 S.W.2d 624, 629 (1972); In re Seeger's Estate, 208 Kan. 151, 490 P.2d 407, 414 (1971); Cowen v. Paddock, Sup., 17 N.Y.S. 387, 388 (1891). Implied consent is also presumed from the parties' course of conduct and relationship. Allstate Ins. Co. v. State Farm Mutual Automobile Ins. Co., 260 S.C. 350, 195 S.E.2d 711, 713 (1973); Standard Acc. Ins. Co. v. Gore, 99 N.H. 277, 109 A.2d 566, 570 (1954). Implied contracts are inferred from the parties' conduct and actions, Kirk v. United States, 451 F.2d 690, 695 (10th Cir. 1971); Western Contracting Corp. v. Sooner Const. Co., 256 F.Supp. 163, 167 (W.D.Okl.1966), or dictated by reason and justice. Arizona Bd. of Regents v. Arizona York Refrigeration Co., 115 Ariz. 338, 565 P.2d 518, 529 (1977).
I am aware that to presume a promise, the evidence must be clear and unequivocal. In 1828 the Supreme Court addressed this issue in Bell v. Morrison, 26 U.S. (1 Pet.) 351, 7 L.Ed. 174 (1828). A Kentucky statute of limitations permitted the revival of a claim on a debt outside the prescribed time period, if the debtor had made an unqualified acknowledgment of the debt still owing. Such an unconditional acknowledgment would thus revive the original cause of action, and the court would then imply a promise from the debtor to pay the debt. Mr. Justice Story explained for the Court that
Id. at 361. We need not go so far in this case as to require express statements from the FBI, since the same concern for "mischiefs" does not exist. However, we do recognize the need for clear and unconditional
Finally, it is helpful to review how other courts have interpreted the term "promise." Some have defined it as an undertaking either that something shall happen, or that something shall not happen, in the future. See, e.g., Plumbing Shop, Inc. v. Pitts, 67 Wn.2d 514, 408 P.2d 382, 384 (1965); Schenley v. Kauth, 96 Ohio App. 345, 122 N.E.2d 189, 191 (1953); Restatement of Contracts § 2(1) (1932). The District of Columbia Court of Appeals defined "promise" as an express or implied declaration which raises a duty to perform. Bergman v. Parker, 216 A.2d 581, 583 (D.C.App.1966).
Through these cases, we discern a standard for determining whether an "implied promise" exists. First, we must determine whether the FBI received a benefit from the sources which could raise a presumption of confidentiality. Second, we must review the surrounding customs, facts, circumstances, equity, signs, action, inaction, course of conduct, relationships, and the nature of the information sought to see whether they indicated an implied promise from the FBI to keep confidential the identities of those who were interviewed. Finally, we must determine whether this evidence is sufficiently clear to meet the burden of raising a legal implication of a promise of confidentiality.
V. Appellee's Evidence Supporting Its Motion for Summary Judgment
In support of its motion for summary judgment the trial court relied on the answers to interrogatories and the affidavit of SA Wroblewski. The factual statements therein contained were not contradicted by Londrigan and are sufficient factually to establish an implied promise of confidentiality.
The affidavit states:
The pertinent interrogatory answers are as follows:
None of these factual allegations supplied by the appellee were controverted by the appellant. He introduced no evidence whatsoever which discusses these facts.
The information set out in the Wroblewski affidavit and interrogatories should in and of itself vindicate the FBI decision to withhold the names sought by appellant. In Miller v. Webster, et al., (7th Cir. 1981), the Seventh Circuit very recently held with respect to FBI claims of exemption under a related subsection of the statute herein under discussion,
At 627, quoting Scherer v. Kelley, 584 F.2d 170, 175-76 (7th Cir. 1978), cert. denied, 440 U.S. 964, 99 S.Ct. 1511, 59 L.Ed.2d 778 (1978). In Miller, the Special Agent affiant set
Id. at 627. The court found the affidavit "responsible and conscientious" and, as such, "sufficient to satisfy the burden of proof imposed on the Bureau by § 552(a)(4)(B)." Id.
As in Miller, the FBI in the person of SA Wroblewski has in the instant case set forth the exemption relied upon in withholding the names appellant seeks and has specified the reasons underlying the use of that exemption. As in Miller, that is, the FBI has met the burden of proof implicit in the language of the exemption invoked. "Unless there is evidence to the contrary in the record, we believe such promises of confidentiality are inherently implicit in FBI" background investigations. Id.
Nor is this the extent of the Bureau's case for withholding the names in question.
Upon a review of the relationship between the FBI and the sources, the policy and customs of the agency, and both parties' actions and inactions, it is also evident that an implied promise of confidentiality existed. The most relevant facts are the year, 1961, and the nature of the interrogator, the FBI. The record indicates that at the time of the Londrigan investigation, no one envisioned the enactment of the Privacy Act of 1974. In those times it would have been absurd to anticipate that the FBI could be forced to release information which for years had remained available only for the official use of the agency in fulfillment of its responsibilities. Therefore, it is imperative for us to place ourselves into the mindset of that time — which factual situation is set forth in the affidavit and interrogatories.
The relationship and activity of the agency is also significant. The FBI was, and to a large extent still is, an awe-inspiring entity to the bulk of the populace. Their special agents obtained most of their information from voluntary sources. Most individuals approached by a special agent for questioning at that time would probably not have differentiated between the seriousness of a criminal investigation conducted by the FBI as opposed to a background employment search and would have presumed confidentiality unless disclosure was implicit in the nature of the investigation. The images and expectations on the part of interviewees toward the special agents, i.e. their relationship, existed despite the context of the questions. The attitude of confidentiality was therefore inherent and essential to instill at all times. It is thus concluded that where the FBI for years held itself out as not disclosing information obtained in investigations except where the investigation was for the purpose of disclosure, and abided by that rule during that period of time, the practice and procedure amounted to an implied promise which extended to those being interviewed that information obtained in background employment investigations such as we have here, would be used for official purposes and held in confidence.
It is important to clarify the boundaries of this holding. The same relationship or expectations might not exist if the institution gathering the information were a government agency other than the FBI. The same aura of confidentiality or seriousness probably would have been absent had the source been interviewed by the Civil Service Commission or the subject's potential employer. The resulting promise of confidentiality would vary with the agency
Therefore, the information supplied by SA Wroblewski concerning the FBI's relationship to sources, actions, policy and customs in 1961 is alone sufficient to establish an implied promise of confidentiality. However, the additional facts to which he attested, i.e., the kinds of sources questioned and the nature of the questions and the information obtained in the respective interviews, adds force to this position. The FBI special agents interviewed school personnel, personal references, neighborhood and social acquaintances, business associates, and former employees. Undoubtedly, many of these persons were still in contact, or would have future contacts, with the subject of the investigation. Without an express or implied promise of confidentiality, it is highly unlikely that they would feel free to render frank answers that might be negative or damaging.
Finally, the nature of the interviews concerning Londrigan included questions as to his character, associates, reputation, loyalty, and abilities. These subjects are highly personal, and their nature reinforces the idea that the FBI would want to instill a feeling of confidentiality in order to obtain frank answers. Appellant has not supplied any persuasive reason why sources giving information in their official capacities, such as school personnel, credit union employees, or personnel office employees would be any less inhibited from releasing information openly of this nature. It is quite logical to assume that such persons would fear harassment or intrusion into their private lives because of the kinds of truthful answers they rendered.
All of these facts are of record and lead inevitably to the conclusion that the FBI in 1961 obtained information from its sources in background employment investigations under an implied promise of confidentiality.
VII. Competency of Special Agent Wroblewski to Present This Evidence
Special Agent Wroblewski was a knowledgeable insider and expert on both FBI investigative procedures and Privacy Act requirements, and from examination of agency records constituting public records
SA Wroblewski had been an FBI special agent doing field investigative work for approximately eight years. During that time he handled complicated cases involving violations of various federal statutes. Subsequent to that job, he was transferred to the Freedom of Information-Privacy Act Branch, Records Management Division, at the FBI Headquarters where he was serving in a supervisory capacity at the time Appellant's lawsuit was filed. His affidavit asserts that the
(App. 10) Therefore, the evidence presented by the FBI was presented by a qualified expert on the agency and its policies and practices at the time of the investigation and thereafter.
To hold, as Appellant contends, that a detailed search into the individual circumstances surrounding each routine background employment investigation must be conducted, rather than accept an affidavit from one as knowledgeable as SA Wroblewski, is to impose an almost impossible and unnecessary burden on agencies like the FBI. According to the FBI, it receives thousands of Freedom of Information and Privacy Act requests annually.
Two district courts have addressed the issue raised by such circumstances insofar as it relates to a comparable exemption from disclosure in the Freedom of Information Act. 5 U.S.C. § 552(b)(7)(D).
Id. at 1102. Similarly, in Ramo v. Department of Navy and Department of Justice, 487 F.Supp. 127 (N.D.Cal., 1979), the Court held that "[t]he affidavit or testimony of one agency official, who is knowledgeable in the way such information is normally gathered, that attests in a detailed manner as to the basis of each claimed exemption," was sufficient for a § 552(b)(7)(D) exemption. At 130. The Ramo Court likewise held it was unreasonable to demand that the government must produce statements from the originator of each piece of information excised from a disclosed record. Id. Such a task would cost too much in time and resources with only negligible benefits.
The reasoning of those courts, and of the trial court in this case, is clearly proper. SA Wroblewski was competent to attest to the necessary detail regarding the FBI investigation of Appellant and to FBI investigative policies in 1961; the factual data so supplied is sufficient to support the summary judgment of the District Court. In so holding, the finding is reiterated that it is unnecessary to review the subjective thoughts of each person interviewed; we should only be concerned with the facts which support the conclusion that in background investigations covering loyalty and employability, such as we have here, an overall implied promise of confidentiality was extended by FBI policy and practices to the public as a whole.
On the basis of the entire record, I would hold that the de novo factual determination of the trial court, that the sources supplied information under an implied promise of confidentiality, is supported by competent evidence and was not clearly erroneous. Therefore, I respectfully dissent from the failure to affirm the award of summary judgment for the FBI.
In the District Court's words, the problem confronting it was "whether, with regard to the investigatory material concerning [Londrigan], implied promises that the identity of the sources who furnished such information to the Government would be held in confidence may be found by the Court to have been made...." Londrigan v. FBI, supra note 5, Order (filed Jan. 30, 1979) at 1, App. 96. The court then, upon "an examination of the documents at issue" and "particularly noting the types of individuals interviewed," "the substance of the questions asked" and the fact "that the interviews were conducted by agents of the [FBI] in 1961," concluded that they "reveal[ed] sufficient circumstances indicating the existence of implied promises of confidentiality...." Id., App. 96 (citation omitted). In so doing, the court exceeded the limits circumscribing the use of summary judgment.
To be sure, any number of circumstances may combine to convince a trier of fact, as a matter of logical inference, that particular information was procured in a particular situation by a particular inquirer from a particular supplier only in consequence of an assumed though unarticulated assurance of confidentiality. Here, however, the District Court did not have the role of factfinder when it acted, nor were the circumstances enumerated by the court so compelling as to render such an inference inevitable on all occasions. The vagaries of human nature being what they are, the most that can be said is that some people would, but others would not, presuppose that the interviewee's identity would remain enshrouded in secrecy. A conclusion that a supplier made that assumption can follow in any given instance only by force of inference from its own set of circumstances.
Recounting well-settled principles governing resort to the summary judgment procedure, we admonished very recently that
Abraham v. Graphic Arts Int'l Union, 212 U.S.App.D.C. 412, 415, 660 F.2d 811, 814 (1981) (footnotes omitted). It follows that "[s]ummary judgment should not be granted where contradictory inferences may be drawn from undisputed evidentiary facts," United States v. Perry, 431 F.2d 1020, 1022 (9th Cir. 1970); and that "[e]valuative judgment between two rationally possible conclusions from facts cannot be engaged in on summary judgment." Chenette v. Trustees of Iowa College, 431 F.2d 49, 53 (8th Cir. 1970). It is "[o]nly where the facts supportive of a summary judgment can be held to have so unambiguously established the actualities of a situation as to leave no basis of substance for dispute as to their reality or as to the conclusion required from them is a summary judgment entitled to be entered." Id. Accord, Sears, Roebuck and Co. v. GSA, 180 U.S.App.D.C. 202, 206, 553 F.2d 1378, 1382, cert. denied, 434 U.S. 826, 98 S.Ct. 74, 54 L.Ed.2d 84 (1977); Lighting Fixture & Elec. Supply Co. v. Continental Ins. Co., 420 F.2d 1211, 1213 (5th Cir. 1969); S. J. Groves & Sons Co. v. Ohio Turnpike Comm'n, 315 F.2d 235, 237-238 (6th Cir.), cert. denied, 375 U.S. 824, 84 S.Ct. 65, 11 L.Ed.2d 57 (1963). Here the circumstances relied upon by the District Court did not lead inexorably to implication of promises of confidentiality — either wholesale, or on any particular occasion — and the court erred when it engaged in fact finding in the context of summary judgment.
The emphasis placed on maximal disclosure by both the House and the Senate is highlighted by the treatment of an aspect of Exemption (k)(5) not before us in this case. The debates in both Houses considered the related question whether an individual already employed by the Government, but denied promotion allegedly on the basis of confidential derogatory information, could be denied access to that information in the context of a legal proceeding on the ground that confidentiality of the source would be breached. Both chambers placed in the record a staff report which concluded that the Erlenborn amendment in no way precluded access under those circumstances. Id. 40406 (Senate version), 40881 (House version with some variations in language). In the House, an exchange between Representatives Alexander and Erlenborn made clear that, if the information were essential to the case, the Government would have to disclose the source or lose. Id. at 40884-40885.
SA Wroblewski addressed this issue in his answer to interrogatories. All information was considered confidential.
(App. 93) It should also be recognized that truthful appraisals of a subject's abilities is the objective of the interview and if sources have to protect themselves by giving overly laudatory interviews the value of the whole investigation will be greatly reduced.
120 Cong.Rec. 36656 (1974) (emphasis added). This indicates that the exemption, contrary to the Appellant's contention, does not make any distinction between derogatory or laudatory information, and that the names of those who give information in confidence in both situations will be "kept confidential."
Representative Holifield (of California) stated:
Id. This observation supports a premise in SA Wroblewski's affidavit that the FBI needs to maintain the confidentiality of its sources in order to keep its channels of information open.
Other comments regarding the amendment were made by Representative Erlenborn.
Id. at 36657.
Finally, the following observation was made by Representative Fascell of Florida who was strongly opposed to the amendment.
Id. While Representative Fascell's statement only represented that he had never given information under an express promise of confidentiality, Representative Erlenborn replied by stating:
Id. Appellant quotes this discussion to support his contention "that Congress did not intend an implied promise of confidentiality to be assumed merely from an FBI investigation." Appellant's Reply Brief at 2. There is no support in the reply for such a conclusion. Representative Erlenborn's reply never specifically addressed FBI investigations in 1961, or the investigatory practices of any agency, particularly as they relate to sources presumably unfamiliar with the intricate workings of the law. He merely responded to Rep. Fascell's statement by explaining that if there had not been an express or implied promise of confidentiality there was nothing in subsection (k) to support withholding the name of the source that had supplied information and the source's name "will be made available." His answer is not in any way in conflict with the interpretation that the district court applied in this case. In fact, Rep. Fascell's statement only explains that he has never given information under an express promise of confidentiality.
The Congressional debate is thus fully supportive of the foregoing opinion in this case.
5 U.S.C. § 552(b)(7)(D) (emphasis added).
470 F.Supp. at 1103. The same logic applies to the deference this Court should give to SA Wroblewski's affidavit.