CHURCH OF SCIENTOLOGY OF CALIFORNIA, A non-profit corporation, Plaintiff-
Appellant,
v.
UNITED STATES DEPARTMENT OF JUSTICE, William B. Saxbe, Attorney General of the
United States; Drug Enforcement Administration, Defendants-Appellees.
No. 76-2506.
United States Court of Appeals,
Ninth Circuit.
Nov. 8, 1979.
Rehearing Denied Jan. 30, 1980.
Suit was brought to compel disclosure of certain records of the Drug
Enforcement Administration under the Freedom of Information Act. From a
judgment of the United States District Court for the Central District of
California, Warren J. Ferguson, J., granting limited relief but finding that
most documents examined were within statutory exemption, plaintiff appealed.
The Court of Appeals, Barnes, Senior Circuit Judge, held that: (1) when aid to
construction of the meaning of words used in a statute is available, there can
be no rule of law forbidding its use, however clear the words may appear on
superficial examination; (2) Congress in enactment of the Freedom of
Information Act intended to reaffirm protection of confidential sources and
confidential information so that law enforcement agencies would not be
adversely affected in their lawful investigation duties; and (3) Congress
intended the term "confidential source" to be given its plain meaning, and
paramount concern was loss of sources of confidential information rather than
possibility of physical harm to individuals, and thus foreign, state and local
law enforcement agencies are included within the quoted phrase.
Affirmed.
Wallace, Circuit Judge, dissented and filed opinion.
[1] STATUTES
There may be instances where language of statute is so lucid on particular
issue that resorting to legislative history would be inappropriate, but such
rule is normally not applicable where court must construe meaning of undefined
term which is used in the statute and which does not consist of words of art;
even in latter situation, however, rule that Congress ordinarily means what it
says and that statutory language is normally best evidence of congressional
intent cannot be ignored. 5 U.S.C.A. s 552(b)(7)(D).
[1] STATUTES
There may be instances where language of statute is so lucid on particular
issue that resorting to legislative history would be inappropriate, but such
rule is normally not applicable where court must construe meaning of undefined
term which is used in the statute and which does not consist of words of art;
even in latter situation, however, rule that Congress ordinarily means what it
says and that statutory language is normally best evidence of congressional
intent cannot be ignored. 5 U.S.C.A. s 552(b)(7)(D).
[2] STATUTES
There is no more persuasive evidence of the purpose of a statute than the words
used by the legislature, and plain meaning of such words may be followed when
they are sufficient in and of themselves to determine the purpose, but court
may look beyond such words to the purpose when the plain meaning leads to
absurd or futile results, or an unreasonable result plainly at variance with
policy of the legislature as a whole. 5 U.S.C.A. s 552(b)(7)(D).
[3] STATUTES
When aid to construction of the meaning of words used in statute is available,
there can be no rule of law forbidding its use, however clear the words may
appear on superficial examination. 5 U.S.C.A. s 552(b)(7)(D).
[4] STATUTES
Term "confidential source" within exemption provisions of Freedom of
Information Act is not term of art, and thus court would turn to legislative
history of exemption and examine congressional intent. 5 U.S.C.A. s
552(b)(7)(D).
See publication Words and Phrases for other judicial constructions and
definitions.
[5] STATUTES
The plainer the language of statute, the more convincing contrary
legislative history must be to warrant interpretation not controlled by
language of the statute. 5 U.S.C.A. s 552(b)(7)(D).
[6] STATUTES
Courts look to statements by initiators or sponsors of proposed legislation
when meaning of words used in statute is in doubt. 5 U.S.C.A. s
552(b)(7)(D).
[7] STATUTES
Word "person" in legal terminology, such as statutes, is perceived as
general word which normally includes in its scope variety of entities other
than human beings. 1 U.S.C.A. s 1.
See publication Words and Phrases for other judicial constructions and
definitions.
[8] RECORDS
Congress in enactment of Freedom of Information Act sought to narrow seventh
exemption and thereby increase disclosure of investigatory records when it
would be reasonable to do so, but nonetheless intended to reaffirm protection
of confidential sources and confidential information so that law enforcement
agencies would not be adversely affected in their lawful investigatory
duties. 5 U.S.C.A. ss 552, 552(b), 552(b)(7), (b)(7)(D).
[9] RECORDS
In enactment of Freedom of Information Act exemption, Congress intended term
"confidential source" to be given its plain meaning, and paramount concern was
loss of sources of confidential information rather than possibility of physical
harm to individuals, and thus foreign, state and local law enforcement agencies
are included within the quoted phrase. 5 U.S.C.A. s 552(b)(7)(D).
[10] RECORDS
Purpose of Freedom of Information Act is to serve disclosure of federal agency
activity, rather than to be means for private parties to find out what facts or
opinions foreign, state or local law enforcement agencies have collected or
made on them. 5 U.S.C.A. s 552(b)(7)(D).
[11] STATUTES
Statute should not be so interpreted as to produce absurd result. 5
U.S.C.A. s 552(b)(7)(D).
[12] RECORDS
In light of what district judge did, apart from what he said as reflected in
his findings, in action under Freedom of Information Act, record sustained
exemption though trial court's finding that materials involved were criminal
investigatory records compiled for law enforcement purposes given under
conditions of confidentiality might, if taken alone, have been objectionable as
failing to find that information had been compiled in course of criminal
investigations and that the confidential information had been furnished only by
confidential source. 5 U.S.C.A. s 552(b)(7), (b)(7)(C, D).
*418 Joe Thrasher, Cameron, Shervey & Thrasher, Rice Lake, Wis., for
plaintiff-appellant.
Leonard Schaitman, Washington, D. C., on brief; Paul Blankenstein, Washington,
D. C., for defendants-appellees.
Appeal from the United States District Court For the Central District of
California.
Before BARNES, WALLACE and TANG, Circuit Judges.
BARNES, Senior Circuit Judge.
Church of Scientology of California ("CSC") appeals the district court's
upholding of the Drug Enforcement Administration's ("DEA") [FN1] decision not
to disclose certain *419 documents sought by CSC under the Freedom of
Information Act ("FOIA"), 5 U.S.C. s 552. The main issue on appeal is the
scope of the term "confidential source" as used in the 7(D) exemption of the
FOIA, 5 U.S.C. s 552(b)(7)(D).[FN2]
FN1. The DEA was created pursuant to the Reorganization Plan No. 2 of
1973 (eff. July 1, 1973, 38 FR 15932, 87 Stat. 1091, as amended Mar. 16,
1974, Pub.L. 93-253, s 1, 88 Stat. 50) to consolidate the antidrug
enforcement activities of the federal government into one agency in the
Department of Justice. See President's Message submitted together with the
Reorganization Plan cited in (1973) U.S.Code Cong. & Admin.News, pp. 3554,
3555. The DEA's responsibilities include conducting relations with drug law
enforcement officials of foreign governments and coordinating joint efforts
with state and local law enforcement agencies. Id.
FN2. The 7(D) exemption of the FOIA, 5 U.S.C. s 552(b)(7)(D), exempts
from disclosure:
(7) investigatory records compiled for law enforcement purposes, but only
to the extent that the production of such records would . . .
(D) disclose the identity of a confidential source and, in the case of a
record compiled by a criminal law enforcement authority in the course of a
criminal investigation, or by an agency conducting a lawful national
security intelligence investigation, confidential information furnished
only by the confidential source . . . .
I. FACTS
On May 2, 1974, CSC requested that the DEA make available for copying and
inspection all records and information in its possession regarding the
activities of "The Church of Scientology of California, Church of Scientology,
or Scientology". Initially, the DEA admitted the possession of only four
documents relating to the "Church of Scientology". It stated that the
information was contained in investigative files compiled for law enforcement
purposes and therefore exempt from disclosure under the 7th exemption.[FN3]
Subsequently, the DEA received 14 further requests for information as to CSC,
its related entities and its founder L. Ron Hubbard.
FN3. Prior to the 1974 amendments, the 7th exemption of the FOIA covered:
"investigatory files compiled for law enforcement purposes except to the
extent available by law to a party other than an agency . . . ."
After exhausting its administrative remedies, CSC brought this FOIA suit in
the federal district court on December 4, 1974. In the meantime, the DEA had
canvassed all of its 161 field offices, both foreign and domestic, and had
located 126 other documents which were subject to CSC's requests. The majority
of those materials were released to CSC. However, the DEA refused to produce
fifteen documents in their entirety invoking the 7(C) [FN4] and 7(D) exemptions
as to each of the documents plus other FOIA exemptions with respect to
particular items.[FN5] In addition, portions of nine other documents were not
released on the grounds of the 7(C) and 7(D) exemptions.[FN6] Of these twenty-
four documents, eleven contained information from non-federal domestic law
enforcement authorities, seven had data from foreign law enforcement sources,
and the other six contained information supplied by individuals cooperating
with the DEA.
FN4. 5 U.S.C. s 552(b)(7)(C) exempts matters that "constitute an
unwarranted invasion of personal privacy."
FN5. See Church of Scientology v. U. S. Dept. of Justice, 410 F.Supp.
1297, 1299-1300 ns. 3-13 and accompanying text (C.D.Cal.1976).
FN6. Id.
At the hearing, the government presented witnesses who testified that
information provided by one law enforcement agency to another is customarily
given with the understanding that it will not be revealed to members of the
general public without the prior approval of the providing source.[FN7]
Further, it was established that foreign, state and local law enforcement
entities would at least be very reluctant, if not prohibited by their own laws,
from disclosing confidential information to a federal agency which could not
guarantee the continued confidentiality of that information.
FN7. Among the government's witnesses were Rocky Pomerance, Chief of
Police, Miami Beach, Florida, and immediate past president of the
International Association of Chiefs of Police; Vernon J. Calhoun, Chief of
the Division of Investigation and Narcotics, Nevada State Police, James
Taylor, First Deputy Police Commissioner, New York City Police Department;
David C. Dilley, Commander, Metropolitan Police and Intelligence Branch,
Scotland Yard, London, England; and Francis Le Moeul, Controller General,
French National Police, and Chief, French Bureau of Narcotics.
After hearing oral arguments from the parties, the district court judge
examined the twenty-four contested documents In *420 camera. Thereafter, he
ordered a minor portion of that material to be released as he found it to have
been improperly withheld. As to the bulk of the 24 documents, the court found
that the government was justified in withholding the remaining documents
pursuant to the 7(D) exemption.[FN8] In reaching his decision, the judge
concluded that the term "confidential source" in the 7(D) exemption included
foreign, state and local law enforcement agencies. Because the 7(D) exemption
was found to be applicable to all of the documents still at issue, the judge
did not rule on the other FOIA exemptions which the government had proffered to
justify its refusal to release the materials.
FN8. 410 F.Supp. at 1300.
CSC now appeals to this court, attacking both the district court's conclusion
as to the scope of the 7(D) exemption and the sufficiency of its findings of
fact. We are in substantial agreement with the district court's decision below
for the reasons stated in its opinion, and we herein affirm.[FN9]
FN9. Id.
II. DISCUSSION
A. Interpreting the 7(D) Exemption
From the language of the statute on its face, the 7(D) exemption excludes from
mandatory disclosure investigatory records compiled for law enforcement
purposes in two different situations: first, where the production would
"disclose the identity of a confidential source" and, second, "in the case of a
record compiled by a criminal law enforcement authority in the course of a
criminal investigation, or by an agency conducting a lawful national security
intelligence investigation", if the production would disclose "confidential
information furnished only by the confidential source." 5 U.S.C. s
552(b)(7) (D). If we were only to look at the language of the 7(D) exemption
and give the words utilized therein their plain and ordinary meaning,[FN10] we
would be forced to conclude that the term "confidential source" refers simply
to the origin of information, without distinction among the types of
originators. Following that reading of the exemption, we would hold that
"confidential source" includes foreign, state and local law enforcement
agencies in its scope.
FN10. Words used in a statute are to be given their ordinary meaning in
the absence of persuasive reasons to the contrary. Banks v. Chicago
Grain Trimmers, 390 U.S. 459, 465, 88 S.Ct. 1140, 20 L.Ed.2d 30 (1968);
Accord Trans Alaska Pipeline Cases, 436 U.S. 631, 643, 98 S.Ct. 2053, 56
L.Ed.2d 591 (1978).
All of the cases that we have found which have considered the question, with
one exception, have agreed with the above interpretation of the language of the
7(D) exemption. See Nix v. United States, 572 F.2d 998, 1005 (4th Cir.
1978); Lopez Pacheco v. FBI, 470 F.Supp. 1091, 1103 (D.P.R.1979); Varona
Pacheco v. FBI, 456 F.Supp. 1024, 1032 (D.P.R.1978); Lesar v. United States,
455 F.Supp. 921, 924 (D.D.C.1978); Cf., Mitsubishu Elec. Corp. v. United
States Dep't of Justice, 1977-1 Trade Cases P 61,356 at p. 71,263
(D.D.C.1977) (held that the 7(D) exemption would cover multi-national companies
as "confidential sources"); See also Terkel v. Kelly, 599 F.2d 214, 217 (7th
Cir. 1979) (Dicta ); Contra Ferguson v. Kelley, 448 F.Supp. 919, 922
(N.D.Ill.1978), Supplemental opinion 448 F.Supp. at 925, On motion for
reconsideration 455 F.Supp. 324, 326-27 (N.D.Ill.1978).
However, the sufficiency of a court's reliance solely upon the "plain meaning"
of the language of a statute in interpreting its terms has come into question.
See generally Murphy, Old Maxims Never Die: The "Plain Meaning Rule" and
Statutory Interpretation in the "Modern" Federal Courts, 75 Col.L.Rev. 1299
(1975) ("Muprhy"). Recent pronouncements by the Supreme Court and this court
have been somewhat inconsistent on this point. On the one hand, the Court in
Train v. Colorado Pub. Interest Research Group, 426 U.S. 1, 96 S.Ct. 1938,
48 L.Ed.2d 434 (1976), held that it was error for the court of appeals to
exclude reference to the legislative history of the statute in question when
the appellate *421 court's reliance on the plain meaning of the words in the
statute produced a result which "would have marked a significant alteration of
the pervasive regulatory scheme embodied in . . . (another statute)" and when
that reliance contributed little to resolving the issue before the court of
appeals. Train, supra, 426 U.S. at 23-24, 96 S.Ct. at 1948. In so deciding
the Court held that there was no "rule of law" which forbids the use of
extrinsic aids in construing the meaning of statutory language however clear
the words may appear on "superficial examination". (Quoting from United
States v. American Trucking Assns., 310 U.S. 534, 543-44, 60 S.Ct. 1059, 84
L.Ed. 1345 (1940).) Following the holding of the Train case, this circuit
has permitted, on occasion, an expansive approach to the utilization of
extrinsic aids such as legislative history in statutory interpretation. As
stated in Pettis ex rel. United States v. Morrison-Knudsen Co., 577 F.2d
668, 671 (9th Cir. 1978):
We begin by noting that the language of 31 U.S.C. s 232(C) affords no
crevice of ambiguity within which to nestle the exception Pettis seeks. It
presents a face, smooth, sharp, and unyielding. Nonetheless, we must heed the
Supreme Court's recent admonition in Train v. Colorado Public Interest
Research Group, 426 U.S. 1, 9-10, 96 S.Ct. 1938, 48 L.Ed.2d 434 (1976), to
examine relevant legislative history in the search for the intent of Congress
even when the statute is clear and unambiguous on its face. It is always
possible that Congress did not quite mean what it said and did not quite say
what it meant.
On the other hand, the Supreme Court recently articulated the opposite
position and seemingly reaffirmed the former "plain meaning rule". In
Tennessee Valley Authority v. Hill, 437 U.S. 153, 184 n. 29, 98 S.Ct. 2279,
2296 n. 29, 57 L.Ed.2d 117 (1978), it was stated that: "When confronted with a
statute which is plain and unambiguous on its face, we ordinarily do not look
to legislative history as a guide to its meaning." Likewise, this circuit has
also recently breathed new life into the rule. See United States v. Rone,
598 F.2d 564, 569 (1979) ("When no ambiguity is apparent on the face of a
statute, an examination of legislative history is inappropriate."); Cf.,
Adams v. Morton, 581 F.2d 1314, 1320 (9th Cir. 1978), Cert. denied, Gros
Ventre Tribes of Fort Belknap Indian Reservation, Montana v. United States, 440
U.S. 958, 99 S.Ct. 1498, 59 L.Ed.2d 771 (1979).
[1][2][3] The plain meaning rule can be viewed as consisting of two
propositions. Initially, the rule stands for the notion that if the language of
a statute is clear and there is no ambiguity, then there is no need to
"interpret" the language by resorting to the legislative history or other
extrinsic aids. See e. g. Packard Motor Car Co. v. NLRB, 330 U.S. 485, 492,
67 S.Ct. 789, 91 L.Ed. 1040 (1947); Caminetti v. United States, 242 U.S.
470, 490, 37 S.Ct. 192, 61 L.Ed. 442 (1917). Secondly, and more importantly,
the rule stands for the proposition that in the vast majority of its
legislation Congress does mean what it says and thus the statutory language is
normally the best evidence of congressional intent. As observed by the Court
in United States v. Missouri Pac. R.R., 278 U.S. 269, 278, 49 S.Ct. 133,
136, 73 L.Ed. 322 (1929): ". . . where the language of an enactment is clear
and construction according to its terms does not lead to absurd or
impracticable consequences, the words employed are to be taken as the final
expression of the meaning intended." It is the former component of the plain
meaning rule which has been called into question by cases such as Train and
Pettis, not the latter proposition.
While there may be instances where the language of a statute is so lucid on a
particular issue that resorting to legislative history would be inappropriate
(the first component of the plain meaning rule), such a rule is normally not
applicable where, as here, the court must construe the meaning of an undefined
term in a statute when the term used does not consist of words of art. However,
even in the latter situation, the second component of the plain meaning rule
cannot *422 be ignored. We agree with the Court's language in American
Trucking Assns., supra, 310 U.S. at 543-44, 60 S.Ct. at 1063-1064:
There is, of course, no more persuasive evidence of the purpose of a statute
than the words by which the legislature undertook to give expression to its
wishes. Often these words are sufficient in and of themselves to determine the
purpose of the legislation. In such cases we have followed their plain meaning.
When that meaning has led to absurd or futile results, however, this Court has
looked beyond the words to the purpose of the act. Frequently, however, even
when the plain meaning did not produce absurd results but merely an
unreasonable one "plainly at variance with the policy of the legislation as a
whole" this Court has followed that purpose, rather than the literal words.
When aid to construction of the meaning of words, as used in the statute, is
available, there certainly can be no "rule of law" which forbids its use,
however clear the words may appear on "superficial examination." (Footnotes
omitted.)
[4][5] In the present case, we have concluded that the statutory language is
clear and unambiguous if we give the words of the 7(D) exemption their ordinary
meaning. However, we concede that the term "confidential source" is not a term
of art. Moreover, the appellant herein has argued that our interpretation,
which was also reached by the district court below, is contrary to the policy
of the FOIA act as a whole and the intent of Congress in enacting the 7(D)
exemption. For these reasons, we now turn to the legislative history of the
7(D) exemption and examine the congressional intent. Pursuant to our adherence
to the applicable portion of the plain meaning rule, we believe that "the
plainer the language, the more convincing contrary legislative history must
be." United States v. United States Steel Corp., 482 F.2d 439, 444 (7th
Cir.), Cert. denied, 414 U.S. 909, 94 S.Ct. 229, 38 L.Ed.2d 147 (1973).
Also, we note that "The proper function of legislative history is to solve, not
create, an ambiguity." Rone, supra, 598 F.2d at 569. "In construing a
statute, the Court has ruled that legislative materials, if 'without probative
value, or contradictory, or ambiguous,' should not be permitted to control the
customary meaning of words. United States v. Dickerson, 310 U.S. 554, 562,
(60 S.Ct. 1034, 1038, 84 L.Ed. 1356) (1940)." NLRB v. Plasterers' Union, 404
U.S. 116, 129 n. 24, 92 S.Ct. 360, 368 n. 24, 30 L.Ed.2d 312 (1971).
Prior to the 1974 amendments to the FOIA, 5 U.S.C. s 552(b)(7) exempted
from disclosure "investigatory files compiled for law enforcement purposes
except to the extent available by law to a party other than an agency . . . ."
The initial versions of the 1974 House of Representatives and Senate bills to
amend the FOIA did not contain any language altering the 7th exemption. Freedom
of Information Act and Amendments of 1974 (P.L. 93-502), Source Book:
Legislative History, Texts and Other Documents at 133-34 and 192 (Joint Comm.
Print 1975) (hereinafter referred to as "Source Book"). On May 30, 1974,
Senator Phillip Hart offered Amendment No. 1361 which proposed to change the
7th exemption to read as follows:
Investigatory records compiled for law enforcement purposes, but only to the
extent that the production of such records would (A) interfere with enforcement
proceedings, (B) deprive a person of a right to a fair trial or an impartial
adjudication or constitute a clearly unwarranted invasion of personal privacy,
(C) disclose the identity of an informer, or (D) disclose investigative
techniques and procedures.
Source Book at 112 and 332.
After amending the House measure with its own language, the Senate adopted the
amended House bill. On June 6, 1974, the legislation was sent to a joint House
and Senate conference committee which made substantial changes in the proposed
amended 7th exemption. In particular, the term "confidential source" was
substituted for the word "informer" in the exemption. The conference later
added language also *423 protecting confidential information compiled from a
confidential source by a criminal law enforcement authority in the course of a
criminal investigation, or by an agency conducting a lawful national security
intelligence investigation. Source Book at 115.
In the midst of the conference deliberations, President Ford wrote to
Congressman William S. Moorhead, one of the co-sponsors of the legislation,
expressing his concern as to various aspects of the proposed amendments,
including those pertaining to the 7th exemption. On October 17, 1974, President
Ford returned the bill (H.R. 12471) to the House without his approval noting,
Inter alia, the problem of the abridgement of confidentiality as to law
enforcement records. Source Book at 398. In November 1974, after debate in both
the House and the Senate, the veto was overridden and the amendments became
effective on February 19, 1975.
[6] After a careful reading of the legislative materials, we are in
agreement with the district court's conclusion below that the issue of the
scope of the term "confidential source" is not "precisely addressed in the
legislative history".[FN11] Admittedly, when Senator Hart initially proposed
his amendment to the 7th exemption, he spoke only in terms of "informers" and
"concerned citizens".[FN12] However, even at that time, Senator Hart did not
consider his amendment to be a "radical departure" from existing case law under
the preamendment FOIA, where "the courts looked to the reasons for the
exemption" in making their decisions as to disclosure. Source Book at 334.
Indeed, in response to a question as to the FBI's ability to perform its
investigatory duties under his proposed amendment, Senator Hart stated that:
FN11. 410 F.Supp. at 1302.
FN12. Fourth, the amendment protects without exception and without
limitation the identity of informers. It protects both the identity of
informers and information which might reasonably be found to lead to such
disclosure. These may be paid informers or simply concerned citizens who
give information to enforcement agencies and desire their identity to be
kept confidential. Source Book at 333-34.
"However, my amendment would not hinder the Bureau's performance in any way.
The Administrative Law Section of the American Bar Association language, which
my amendment adopts verbatim, was carefully drawn to preserve every conceivable
reason the Bureau might have for resisting disclosure of material in an
investigative file:
If informants' anonymity whether paid informers or citizens volunteers would
be threatened, there would be no disclosures;
If in any other way the Bureau's ability to conduct such investigations was
threatened, there would be no disclosure.
Thus, my amendment more than adequately safeguards against any problem which
might be raised for the Bureau.
Source Book at 351.
Thus, despite the limited nature of his initial comments, it is clear that
Senator Hart did not intend his amendment to inhibit in any way a federal law
enforcement agency's ability to conduct its lawful investigation. Indeed, in
his only comments on the exemption after the changes made by the conference
committee, Senator Hart uses the word "source" in its literal sense without any
special qualification on the term. As he stated on November 21, 1974, in the
debate arising from the Senate action and vote on the presidential veto:
The major change in conference was the provision which permits law
enforcement agencies to withhold "confidential information furnished only by a
confidential source". In other words, the agency not only can withhold
information which would disclose the identity of a confidential source but also
can provide blanket protection for any information supplied by a confidential
source. The President is therefore mistaken in his statement that the FBI must
prove that disclosure would reveal an informer's identity; all the FBI has to
do is to state that the information was furnished by a confidential *424
source and it is exempt. In fact, this protection was introduced by the
conferees in response to the specific request of the President in a letter to
Senator Kennedy during the conference.
The fact that the agencies can withhold information furnished by a
confidential source relieves it of the burden of showing that disclosure would
actually reveal the identity of a confidential source. . . .
Source Book at 451-52
From those statements, Senator Hart does not appear to limit the word "source"
to only human sources but rather gives an expansive reading of the 7(D)
exemption.[FN13]
FN13. Courts look to the statements by the initiators or sponsors of
proposed legislation when the meaning of words used in a statute is in
doubt. National Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612, 640, 87
S.Ct. 1250, 18 L.Ed.2d 357 (1967).
In the Joint Explanatory Statement of the Committee of Conference ("Conference
Report"), the following reason for the substitution of the term "confidential
source" for the word "informer" is given:
The substitution of the term "confidential source" in section 552(b)(7)(D)
is to make clear that the identity of a person other than a paid informer may
be protected if the person provided information under an express assurance of
confidentiality or in circumstances from which such an assurance could be
reasonably inferred. Under this category, in every case when the investigatory
records sought were compiled for law enforcement purposes either civil or
criminal in nature the agency can withhold the names, addresses, and other
information that would reveal the identity of a confidential source who
furnished the information. However, where the records are compiled by a
criminal law enforcement authority, All of the information furnished only by a
confidential source may be withheld if the information was compiled in the
course of a criminal investigation. In addition, where the records are compiled
by an agency conducting a lawful national security intelligence investigation,
all of the information furnished only by a confidential source may also be
withheld.
Source Book at 230.
[7] Likewise, Senator Byrd in his arguments in favor of overriding the
presidential veto makes similar remarks:
The Senate-passed version of the bill contained an amendment which would have
required disclosure of information from a law enforcement agency unless certain
information was specifically exempted by the act. What particularly disturbed
me was that while the identity of an informer would be protected, the
confidential information which he had given the agency would not have been
protected from disclosure. Another matter that disturbed me was the use of the
word "informer", since that could be construed to mean that only the identity
of a paid "informer" was to be protected and not the identity of an unpaid
confidential source. I was deeply concerned that without such protection, law
enforcement agencies would be faced with a "drying-up" of their sources of
information and their criminal investigative work would be seriously impaired.
The bill in the form now presented to the Senate has been significantly
changed by the conference on these critical issues. The language of section
552(b)(7) has been changed from protecting from disclosure the identity of an
"informer" to protecting the identity of a "confidential source" to assure that
the identity of a person other than a paid informer may be protected. The
language has also been broadened substantially to protect from disclosure all
of the information furnished by a confidential source to a criminal law
enforcement agency if the information was compiled in the course of a criminal
investigation. Thus, not only is the identity of a confidential source
protected but also protected from disclosure is all the information furnished
by that source to a law enforcement agency in the course of a criminal
investigation.
*425 Source Book at 468.
In both statements, it is clear that the congressional intent was to broaden
the scope of the proposed exemption to include sources of confidential
information other than informers. The use of the word "person" in those
contexts appears to be similar to the use of any collective noun. The word
"person" in legal terminology is perceived as a general word which normally
includes in its scope a variety of entities other than human beings. See e. g.
1 U.S.C. s 1. Had the Conference Report affirmatively stated that the term
"confidential source" was limited to or applies only to persons, we would agree
with appellant's position herein.
Likewise, a single comment was made by Senator Kennedy in the course of the
debates that "we also provided that there be no requirement to reveal not only
the identity of a confidential source, but also any information obtained from
him in a criminal investigation." Source Book at 459. However, the use of a
singular masculine pronoun is often made where the sex, if any, of its
antecedent reference is unknown or where it refers to a collective noun which
consists of entities of more than one sex. Given that the comment was made in
the course of the debates on the Senate floor, where grammatical formalities
are not always observed, we do not consider that one particular comment to be
indicative. Senator Kennedy's other remarks on the 7(D) exemption do not
demonstrate any intent to limit the scope of the term "confidential source". If
we allowed this determination to be controlled by the mere use of a pronoun, we
would be excluding non-human entities such as corporations and partnerships
from the protection of the exemption. It is inconceivable that Senator Kennedy
would not seek to assure the continued cooperation of non-human entities in law
enforcement investigations by granting them confidentiality where necessary.
As with the district court below we are hesitant to rely solely upon
"grammatical nuances" in the legislative materials to resolve the important
issue involved herein. Reliance instead should be made upon the congressional
intent behind the 7(D) exemption which clearly manifests itself in the
legislative history.
[8] Congressman Moorhead (co-sponsor of the House Bill), Senator Kennedy
(the Senate Conference Committee Chairman) and Senator Hart (the initiator of
the amendment to the 7th exemption) have all stated that the conference
committee "acted affirmatively to satisfy" President Ford's objections to the
amended version of the (b)(7) exemptions. Source Book at 381 and 450. One of
President Ford's objections had been the potential adverse effect of the 7th
exemption, as initially proposed, upon law enforcement if "sources of
information or the information itself are disclosed." Source Book at 380. As
repeatedly expressed in the debates on the amended version of the 7th exemption
by both proponents and opponents of the amendments, Congress was concerned that
law enforcement agencies should not be faced with a "drying up" of their
sources of information or have their criminal investigative work be seriously
impaired. Source Book at 381, 391-92, 451, 468, 473, and 476. In response to
that concern, it was continually stressed by members of the conference
committee that:
We have been careful to protect . . . law enforcement interests to the utmost
in the bill we passed.
We decided in conference, however, as a specific request from the President,
to change that to protect confidential sources, which broadened it and provided
a wider degree of protection.
Then we also provided that there be no requirement to reveal not only the
name of a confidential source, but also any information obtained from him in a
criminal investigation. (Remarks of Senator Kennedy)
Source Book at 440 and 459. See also remarks of Senator Hart, Source Book at
450-51.
It is obvious from the legislative history that Congress, while seeking to
narrow the *426 7th exemption and thereby increase the disclosure of
investigatory records when it would be reasonable to do so, intended to
reaffirm its protection of confidential sources and confidential information so
that law enforcement agencies would not be adversely affected in their lawful
investigatory duties.
[9] By giving the term "confidential source" its plain meaning, we will
effectuate the stated congressional purpose behind the 7(D) exemption. Congress
did not plan to prevent law enforcement agencies from gathering information
from sources who would be reluctant to provide such information if their
identities or their confidential information were made public. By refusing to
accept the plain meaning of the word "source" and excluding foreign, state and
local law enforcement agencies from the 7(D) exemption, an impairment to
federal law enforcement groups will result which would be contrary to the
congressional intent. Foreign, state and local law enforcement agencies are
under no obligation to provide information to federal agencies in most
instances.[FN14] There is substantial evidence in the record below that some of
those groups would refuse to cooperate with federal agencies if they could not
be assured of confidentiality in instances where they thought it was necessary.
[FN15] While CSC argues that Congress intended to limit the scope of the 7(D)
exemption to human sources, there is no evidence in the legislative history
that the congressional concern was focused on the possibility of physical harm
to individuals. Rather, the paramount concern was the loss of sources of
confidential information.
FN14. In Ferguson v. Kelley, supra, 448 F.Supp. at 922, the district
court found that local law enforcement agencies were not within the 7(D)
exemption because: "We are not certain that other law enforcement agencies
can reasonably believe that all information which they may supply to a
federal agency will be shielded from public disclosure. As public agencies
subject to public scrutiny, other law enforcement agencies are in a very
different position from that of a private citizen who has no legal duty to
volunteer information to law enforcement agencies." As discussed Supra, the
district court is simply in error when it assumes that foreign, state and
local law enforcement agencies have a duty to volunteer information to
federal law enforcement agencies. Consequently, in this context, they are
similar to private citizens, which the district court would place within
the scope of the exemption.
FN15. See Lopez Pacheco v. FBI, supra, 470 F.Supp. at 1104 n. 16 and
accompanying text (D.P.R.1979) where although the FBI was willing to
release certain investigative documents obtained from state police
officials in Washington, the state authorities refused to give the FBI
permission to do so, stating in a letter that:
The matter to be determined is whether or not once local law enforcement
agencies release information to the F.B.I., that information may be
released by the federal agencies by virtue of the Freedom of Information
Act. It is our position that if information given to the federal agencies
is subject to such release without the statutory constraints of the State
of Washington being followed, further information of such nature will not
be available to Federal Agencies.
A "plain meaning" interpretation of the 7(D) exemption would not be in
conflict with the remainder of the FOIA. While the FOIA "is in favor of
disclosure", Department of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct.
1592, 1599, 48 L.Ed.2d 11 (1976), it should be apparent that the subsection (b)
exemptions are also a part of the FOIA and in their case Congress decided that
there were "types of information that the Executive Branch must have the option
to keep confidential." Id., quoting EPA v. Mink, 410 U.S. 73, 79-80, 93
S.Ct. 827, 35 L.Ed.2d 119 (1973); See also FAA Administrator v. Robertson,
422 U.S. 255, 261, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975). While one may employ
the general purpose of the act as justification to narrowly construe the
exemptions where there is an absence of congressional intent on a particular
area covered by one of the exemptions, one must remember that the congressional
intent in enacting the exemption was to preserve, not destroy, confidentiality
in certain necessary situations. Consequently to say, as appellant does here,
that one's interpretation of the exemption is consistent with the general
purpose of the FOIA is to ignore the congressional intent which caused and
required the enactment of the exemptions in the first place.
*427 [10] The purpose of the FOIA is to serve disclosure of federal
agency activity, not as a means for private parties to find out what facts or
opinions foreign, state or local law enforcement agencies have collected or
made on them. Cf., S.Rep.No.813, 89th Cong., 1st Sess., 3 (1965), quoted in
Department of Air Force, supra, 425 U.S. at 361, 96 S.Ct. 1592; NLRB v.
Sears, Roebuck & Co., 421 U.S. 132, 143 n. 10, 95 S.Ct. 1504, 44 L.Ed.2d 29
(1975). By including foreign, state and local law enforcement agencies in the
7(D) exemption, we would not be preventing any proper disclosure of federal
agency action. If we adopt the approach suggested by appellant we would
eliminate sources of information which the federal agencies may need without
gaining any greater disclosure of the type of information which the FOIA seeks
to reveal.
[11] Finally, there is a rule of statutory interpretation that should be
mentioned. A statute should not be interpreted so as to produce an absurd
result. Holy Trinity Church v. United States, 143 U.S. 457, 461, 12 S.Ct.
511, 36 L.Ed. 226 (1892). Any inanimate entity, such as a corporation or a
foreign law enforcement agency, must act through a human intermediary. If we
now interpret "source" as limited only to human sources, there would be an
absurd difference between saying that a federal agency received sought-after
information from an agent, Mr. X, of a foreign law enforcement agency under an
expressed or understood assurance of confidentiality and saying that the agency
had received the information from the foreign law enforcement agency under the
same assurance of confidentiality. Cf., Victoria-Vogue, Inc. v. Valcourt,
Inc., 148 F.Supp. 160, 172 (S.D.N.Y.1956). We do not think that Congress
intended to impose such a form over substance rule for law enforcement
agencies.
Even assuming that the legislative history shows that Congress had only
"human" sources in mind when it drafted 7(D), we would reach the same result.
There is no direct evidence in the legislative history that Congress
specifically sought to exclude law enforcement agencies from the definition of
confidential source. In circumstances such as these, where the legislative
history is inconclusive, we should not impute to Congress an intent to exclude
law enforcement agencies where they are within the plain meaning of the
statute.
Although rising in a somewhat different context, the recent case of United
States v. Jones, 607 F.2d 269 (9th Cir., 1979), is instructive. In Jones,
the issue was whether allegations that the defendants had stolen and damaged
Indian artifacts were covered by the general theft and malicious mischief
statutes, 18 U.S.C. ss 641 and 1361. Finding that the language of the
statutes applied to the conduct in question and that there was no affirmative
evidence that Congress intended to limit the application of the statutes, we
held that the conduct came within the scope of the statutes. "Where the words
and purpose of a statute plainly apply to a particular situation, however, the
fact that the specific application of the stature never occurred to Congress
does not bar us from holding that the situation falls within the statute's
coverage." Id. at 273.
In this case, law enforcement agencies fall within the plain meaning of the
statutes. Furthermore, their inclusion within 7(D) furthers the statutory
purpose of preventing the "drying up" of sources of confidential information.
The legislative history does not evidence an intent specifically to exclude law
enforcement agencies. In these circumstances, we should give effect to the
plain meaning of the statute even if Congress did not contemplate this
particular application.
In conclusion, we find that the language of the 7(D) exemption on its face
would clearly include foreign, state and local law enforcement agencies within
its scope. The legislative materials are ambiguous as to an expressed
limitation on the meaning of the term "confidential source" and hence do not
control the customary meaning of the words. Plasterers' Union, supra, 404
U.S. at 129 n. 24, 92 S.Ct. at 368 n. 24. More importantly, the evidence of the
congressional *428 intent as to the 7(D) exemption in the legislative
history strongly supports our interpretation.
B. Sufficiency of the Findings Below
[12] CSC makes two arguments as to the sufficiency of the district court's
findings of fact. Both of its contentions stem from language in the reported
opinion where the district court stated:
The materials involved are criminal investigatory records compiled for law
enforcement purposes given under conditions of confidentiality.
410 F.Supp. at 1300. First, it is argued that the district court did not
find that the non-disclosed documents contained confidential information which
had been furnished Only by a confidential source as required by the 7(D)
exemption. Second, it is argued that the district court failed to specifically
find that the information had been compiled in the course of criminal
investigations.
If the quoted passage was indeed the sole basis for the district court judge's
conclusion that the contested documents were within the 7(D) exemption, we
would readily agree with CSC that the judge was in error. However, the quoted
passage is merely a part of the general background portion of the opinion. As
to this issue, it is more important, not to examine what the judge said, but
what he did.
From the record, we are convinced that the district court judge recognized the
applicable requirements of the 7(D) exemption and adequately required the
government to satisfy its burden of proof as to each document which it claimed
was exempted. In particular, after reviewing the Reporter's Transcript of
Proceedings In Camera which was submitted to this Court as a sealed exhibit, we
note that the district court judge carefully went "through each document step
by step" and had the government's attorneys explain the grounds urged in
support of the exclusions. During that process, the judge queried the attorneys
as to the sources of the information,[FN16] and the circumstances by which the
information was obtained. We are satisfied that the district court judge
correctly applied the 7(D) exemption herein by requiring, where appropriate,
the government to show that the confidential information was only furnished by
a confidential source and during the course of a criminal investigation.
FN16. During the questioning as to the first contested document, the
government's attorney conceded that, in the case of a document which would
not reveal the identity of a confidential source, the government would be
obligated to show that the confidential information came Only from a
confidential source.
III. CONCLUSION
The judgment of the district court is AFFIRMED.
WALLACE, Circuit Judge, dissenting:
I am in sympathy with the result reached by the majority. The statute is clear
enough on its face. It makes eminent sense and I quite frankly wish that it
were the law. Unfortunately, however, because the Supreme Court requires us to
examine legislative history in construing the meaning of a statutory term such
as the one before us, Train v. Colorado Pub. Interest Research Group, 426
U.S. 1, 9-10, 96 S.Ct. 1938, 48 L.Ed.2d 434 (1976), and because the legislative
history of the amendment to 5 U.S.C. s 552(b)(7)(D), as I read it, clearly
expresses a congressional intent that "confidential source" be limited to human
sources, I must respectfully dissent. In concluding that the documents withheld
by the DEA are not entitled to protection from disclosure under (b)(7) (D), I
would not reach appellant's challenge to the sufficiency of the lower court's
findings.
I
The question before us, whether "confidential source" as used in (b)(7)(D)
includes foreign, state, and local law enforcement agencies, is a difficult
one. If I were looking only to the plain language of the statute, I would agree
with the conclusion of my brethren that "source" refers simply to the origin of
information, without distinction *429 among types of originators. However,
the Supreme Court directed that legislative history should not be ignored when
it aids in the resolution of a question of statutory construction, Train v.
Colorado Pub. Interest Research Group, supra, 426 U.S. at 9-10, 96 S.Ct. at
1942, 48 L.Ed.2d at 440-441, and this circuit has demonstrated its willingness
to heed that admonition "to examine relevant legislative history in the search
for the intent of Congress even when the statute is clear and unambiguous on
its face." Pettis ex rel. United States v. Morrison-Knudsen Co., 577 F.2d
668, 671 (9th Cir. 1978). See also Hewlett-Packard Co. v. Barnes, 571 F.2d
502, 504 n.4 (9th Cir.), Cert. denied, 439 U.S. 831, 99 S.Ct. 108, 58
L.Ed.2d 125 (1978).
To be sure, "reliance on legislative history in divining the intent of
Congress is, as has often been observed, a step to be taken cautiously."
Piper v. Chris-Craft Indus., Inc., 430 U.S. 1, 26, 97 S.Ct. 926, 941, 51
L.Ed.2d 124 (1977). Nonetheless, without additional guidance from the Supreme
Court, I believe we are bound by the teaching of Train, and therefore we
must take the more thorough approach and examine the legislative history for
assistance in construction of the term "source." In doing so I, like my
brethren, feel that we should heed the Court's instruction that "legislative
materials, if 'without probative value, or contradictory, or ambiguous,' should
not be permitted to control the customary meaning of words." NLRB v.
Plasterers' Local 79, 404 U.S. 116, 129 n.24, 92 S.Ct. 360, 368 n.24, 30
L.Ed.2d 312 (1971) (quoting United States v. Dickerson, 310 U.S. 554, 562,
60 S.Ct. 1034, 84 L.Ed. 1356 (1940)). See Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U.S. 402, 412 n.29, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971);
Pettis ex rel. United States v. Morrison-Knudsen Co., supra, 577 F.2d at
672.
II
The district judge, although aware of passages "suggest(ing) that the
legislator's focus was upon human sources," concluded that "(a)ssorted
grammatical nuances . . . are no substitute for an assessment of what
interpretation the legislature would have given the term source if the issue
involved here had been presented at the time of passage." Church of
Scientology v. United States Dep't of Justice, 410 F.Supp. 1297, 1302
(C.D.Cal.1976). Similarly, the majority relies on the fact that Congress did
not "plan" to prevent law enforcement agencies from gathering information. Our
determination, however, cannot be based upon subsequent happenings which may
demonstrate the illogical position taken, nor upon what Congress would have
done had it foreseen the facts of this case. I conclude that at the time of the
passage of the statute, the legislative history shows that Congress intended
the term "source" to mean "person."
As originally proposed by Senator Hart, subsection (b)(7)(D) exempted "(i)
nvestigatory records compiled for law enforcement purposes, but only to the
extent that the production of such records would . . . disclose the identity of
an informer . . . ." See House Comm. on Government Operations & Senate Comm. on
the Judiciary, 94th Cong., 1st Sess., Freedom of Information Act and Amendments
of 1974 (P.L. 93-502) Source Book: Legislative History, Texts, and Other
Documents 332 (Joint Comm. Print 1975) (hereinafter cited as Source Book). At
the time of his introduction of the amendment, Senator Hart stated:
Fourth, the amendment protects without exception and without limitation the
identity of informers. It protects both the identity of informers and
information which might reasonably be found to lead to such disclosure. These
may be paid informers or simply concerned citizens who give information to
enforcement agencies and desire their identity to be kept confidential.
Source Book, Supra, at 333-34. See also id. at 351 (memorandum letter
from Senator Hart).
In response to President Ford's concerns, the Conference Committee
substituted *430 "confidential source" for "informer." [FN1] Id. at 367,
378, 450-51, 459 (remarks of Senators Kennedy and Hart and Congressman
Moorhead). Its joint explanatory report, which "represents the considered and
collective understanding of those (legislators) involved in drafting and
studying proposed legislation," Zuber v. Allen, 396 U.S. 168, 186, 90 S.Ct.
314, 325, 24 L.Ed.2d 345 (1969), said:
FN1. The President wrote that he was:
concerned with any provision which would reduce our ability to effectively
deal with crime. This amendment could have that effect if the sources of
information or the information itself are disclosed. These sources and the
information by which they may be identified must be protected in order not
to severely hamper our efforts to combat crime.
Source Book, Supra, at 369-70 (letter from President Ford to Senator
Kennedy, Aug. 20, 1974).
The substitution of the term "confidential source" in section 552(b)(7)(D)
is to make clear that the identity of a Person other than a paid informer may
be protected if the Person provided information under an express assurance of
confidentiality or in circumstances from which such an assurance could be
reasonably inferred. Under this category, in every case where the investigatory
records sought were compiled for law enforcement purposes either civil or
criminal in nature the agency can withhold the names, addresses, and other
information that would reveal the identity of a confidential source Who
furnished the information.
H.R.Rep.No.93-1380 & S.Rep.No.93-1200, 93d Cong., 2d Sess., Reprinted in
(1974) U.S.Code Cong. & Ad.News, pp. 6285, 6291, And in Source Book at 230
(emphasis added).
My brethren disregard the clear language of this explanatory report by
contending that the Conference Committee used "person" as a collective noun and
that the expansive nature of their message precludes any restrictive reading
of "confidential source." Not only is it unlikely that the Committee was using
the law dictionary definition of person, as my brethren contend, but even if
they were, that definition of the term would not include foreign, state, and
local law enforcement agencies. See, e.g., 1 U.S.C. s 1. The Committee's use
of "person" in explaining the change from "informer" plainly reveals that their
intent to protect only human sources had not changed. Moreover, the majority's
reliance on the expansive intent of the Committee report is misplaced. General
intent should not be used to controvert specific language; indeed, the
Committee itself chose to express its intent by the term "person."
While floor debates are accorded less weight than committee reports, United
States v. International Union UAW, 352 U.S. 567, 585-86, 77 S.Ct. 529, 1
L.Ed.2d 563 (1957); Accord, International Tel. & Tel. Corp. v. General
Tel. & Elec. Corp., 518 F.2d 913, 921 (9th Cir. 1975), the floor discussion in
the Senate with respect to this passage supports this view of "source."
Statements made both before passage of the amendment in the Senate and
following the Conference Committee Report and Presidential veto indicate that
Senators Hart and Kennedy, both members of the Conference Committee, and
Senator Byrd assumed the exemption referred to persons or individuals.[FN2] The
government argues and the majority *431 agrees that Congress intended to
protect law enforcement efforts. I do find throughout the legislative debates
broad statements by Senators Hart and Kennedy to the effect that law
enforcement would in no way be hampered by the amendment of subsection (b)(7).
See id. at 351, 365, 440, 459. We should not, however, allow broad
statements of assurance made in floor debate to control the clear language of
the Committee report, language supported by statements of both senators
indicating that they understood that "source" referred to persons or
individuals. See id. at 351, 459. I think it is clear that "source" was not
meant to include foreign, state, and local law enforcement agencies. Although
there was considerable testimony pertaining to law enforcement difficulties
that could result from this interpretation, this does not allow us to ignore
congressional intent. We are not judging what should have been done but what
was done. The law enforcement problem resulting from interpreting "source" as
individuals, which undoubtedly is real, should be addressed to the Congress
rather than to the courts.
FN2. Senator Hart stated in a letter to each senator that "(i)f
informants' anonymity whether paid informers or citizen volunteers would be
threatened, there would be no disclosures. . . ." Source Book, Supra, at
351. Following the President's veto he stated:
(t)he major change in conference was the provision which permits law
enforcement agencies to withhold "confidential information furnished only
by a confidential source." In other words, the agency not only can withhold
information which would disclose the identity of a confidential source, but
also can provide blanket protection for any information supplied by a
confidential source. The President is therefore mistaken in his statement
that the FBI must prove that disclosure would reveal an informer's
identity; all the FBI has to do is to state that the information was
furnished by a confidential source and it is exempt.
Source Book, Supra, at 451. Senator Kennedy stated that "we also
provided that there be no requirement to reveal not only the identity of a
confidential source, but also any information obtained from Him in a
criminal investigation." Id. at 459 (emphasis added). Senator Byrd
stated he had been concerned that "informer" could have been construed to
mean "paid informer," but said he would vote for the bill, with the
(b)(7)(D) amendment, in part because "confidential source" would "assure
that the identity of a Person other than a paid informer may be
protected." Id. at 468 (emphasis added).
Senators Hruska and Thurmond were members of the Conference Committee but
did not sign its report. In opposing the amendment, they expressed fears
that reprisals and a loss of sources would result, but were apparently
concerned about individuals. See id. at 340-41, 343, 348, 456-57. But
these senators' opposition comments are less probative because opposition
arising out of a concern for the adequacy of protection of individuals
would not necessarily indicate they believed agency sources were not
covered by the amendment.
The government argues that the question whether "source" should include
foreign, state, and local law enforcement agencies "simply did not arise." This
is not, however, a case of legislative silence, but one in which Congress did
speak and specified the scope of the term in question. Especially persuasive is
the fact that Congress was creating exceptions to a rule of disclosure. We
should be reluctant under these circumstances to view an omission as anything
but deliberate. I conclude that in light of Train v. Colorado Pub. Interest
Research Group, supra, 426 U.S. at 9-10, 23-24, 96 S.Ct. 1938, we are required
to give the term the meaning Congress intended it to have in spite of its
facially plain meaning to the contrary.
III
This conclusion is consistent with the purposes of the Act in general. The
Supreme Court has emphasized that the " 'basic policy' " of the Act "is in
favor of disclosure." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 220,
98 S.Ct. 2311, 57 L.Ed.2d 219 (1978) (quoting Department of Air Force v.
Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976)); Accord,
Theriault v. United States, 503 F.2d 390, 392 (9th Cir. 1974). While this
consideration is not determinative in this case, it is worth pointing out that
a restrictive reading limits the meaning of "source" to persons and thus favors
disclosure over secrecy.
Finally, my brethren contend that a restrictive reading of "source" could
easily be circumvented by agency use of individual agents to convey
information, thus rendering the restrictive construction "absurd." Such a
position assumes, however, that an agent acting in such a capacity would not be
viewed as acting for the agency, a decision we need not make at this juncture.
Because we are required by law to examine legislative history in construing
"confidential source," and because that history clearly reveals that Congress
intended to protect only human sources from disclosure, I would reverse.