
USCA1 Opinion

	




          December 17, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________                                 ____________________        No. 92-1166        No. 92-1166                              PROVIDENCE JOURNAL COMPANY                              PROVIDENCE JOURNAL COMPANY                                AND GERALD M. CARBONE,                                AND GERALD M. CARBONE,                                Plaintiffs, Appellees,                                Plaintiffs, Appellees,                                          v.                                          v.                        UNITED STATES DEPARTMENT OF THE ARMY,                        UNITED STATES DEPARTMENT OF THE ARMY,                                Defendant, Appellant.                                Defendant, Appellant.                                 ____________________                                 ____________________                                     ERRATA SHEET                                     ERRATA SHEET            The opinion of this Court issued on  December 8, 1992, is ammended        as follows:            On cover under list of counsel  "John S. Koppel, Assistant  United        States  Attorney",  should  be  corrected  to  read  "John  S. Koppel,        Attorney, Civil Division, United States Department of Justice".        December 8, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________                                 ____________________        No. 92-1166        No. 92-1166                              PROVIDENCE JOURNAL COMPANY                              PROVIDENCE JOURNAL COMPANY                                AND GERALD M. CARBONE,                                AND GERALD M. CARBONE,                                Plaintiffs, Appellees,                                Plaintiffs, Appellees,                                          v.                                          v.                        UNITED STATES DEPARTMENT OF THE ARMY,                        UNITED STATES DEPARTMENT OF THE ARMY,                                Defendant, Appellant.                                Defendant, Appellant.                                 ____________________                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ____________________                                 ____________________                                        Before                                        Before                                  Cyr, Circuit Judge,                                  Cyr, Circuit Judge,                                       _____________                            Roney,* Senior Circuit Judge,                            Roney,* Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                              and Boudin, Circuit Judge.                                          _____________                                 ____________________                                 ____________________            John   S.  Koppel,   Attorney,   Civil  Division,   United  States            John   S.  Koppel,   Attorney,   Civil  Division,   United  States            _________________        Department of  Justice,  with whom  Lincoln C.  Almond, United  States        Department of  Justice,  with whom  Lincoln C.  Almond, United  States                                            __________________        Attorney, Stuart M. Gerson,  Assistant United States Attorney General,        Attorney, Stuart M. Gerson,  Assistant United States Attorney General,                  ________________        Leonard  Schaitman, Lt.  Col. Richard  D. Rosen  and Major  Patrick W.        Leonard  Schaitman, Lt.  Col. Richard  D. Rosen  and Major  Patrick W.        __________________  ___________________________      _________________        Lisowski were on brief for appellant.        Lisowski were on brief for appellant.        ________            Joseph  V.  Cavanagh, Jr.  with  whom  Michael DiBiase,  Karen  A.            Joseph  V.  Cavanagh, Jr.  with  whom  Michael DiBiase,  Karen  A.            _________________________              _______________   _________        Pelczarski and Blish & Cavanagh were on brief for appellees.        Pelczarski and Blish & Cavanagh were on brief for appellees.        __________     ________________                                 ____________________                                 ____________________                                 ____________________                                 ____________________         *Of the Eleventh Circuit, sitting by designation.         *Of the Eleventh Circuit, sitting by designation.                    CYR,  Circuit  Judge.   This  appeal  is taken  from  a                    CYR,  Circuit  Judge.                          ______________          district court judgment directing the United States Department of          the  Army ("Army") to disclose  to the Providence Journal Company          ("Journal"), pursuant  to a  Freedom of Information  Act ("FOIA")          request,  numerous  documents relating  to  an internal  criminal          investigation into allegations against  six officers of the Rhode          Island National  Guard  ("RING").   The  Army contends  that  the          documents  are protected  from compelled  disclosure under  three          FOIA exemptions.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    During 1988, the Office of the Inspector General of the          Army ("IG") received four  anonymous letters implicating six RING          officers  in  alleged misconduct  punishable  either by  internal          disciplinary action or by court-martial under the Uniform Code of          Military  Justice.  See 10 U.S.C.    801-946 (1985 & Supp. 1992).                              ___          The Army Vice Chief of Staff ("VCOS") directed the IG to investi-          gate  the charges against two  "senior" officers and  to submit a          report to  the Army  officer ("Army command")  invested with  the          authority  to determine  whether  either disciplinary  action  or          court-martial was  warranted.   The allegations against  the four          junior officers were referred to the National Guard Bureau.                    In order to foster  cooperation and curb possible fears          of reprisal or harassment, the IG's office, which has no subpoena                                          2          power, promises  confidentiality     as to both  witness identity          and  statement  content      "to  the  maximum  extent  possible,          particularly when  it is specifically requested."   Department of          Army  Regulation  ("DAR")  20-1,    1-15a.   The  IG  interviewed                                                  _          twenty-seven witnesses in the course of the investigation.  Three          witnesses  waived their  right to  confidentiality.   In December          1989,  the  IG  submitted  a  report  ("IG  Report"),  which  was          "approved" by  the  Army VCOS.    Army regulations  provide  that          "approval"  of  an  IG  report does  not  connote  official  Army          adoption of  its findings or recommendations.   DAR 20-1,   3-1c.                                                                         _          The record reveals no further Army action on the IG Report.                    In due  course, the Journal  and one  of its  reporters          filed an  FOIA  request  for "all  documents  pertaining  to  the          Inspector General's  investigation of  the Rhode Island  National          Guard."  See 5 U.S.C.   552 (1990).  The Army released a redacted                   ___          version  of  the  IG  Report,  withholding  several  exhibits  in          reliance  on   four  FOIA  exemptions.     See  id.     552(b)(5)                                                     ___  ___          (exemption for predecisional intra-agency memoranda), (6), (7)(C)          (exemptions  to  safeguard   against  unwarranted  invasions   of          privacy),  and (7)(D)  (exemption for  information provided  by a          "confidential source").  Following an unsuccessful administrative          appeal to the Army General Counsel, the Journal filed suit in the          United  States District Court for the District of Rhode Island to          compel  disclosure  of the  unredacted  documents  pursuant to  5          U.S.C.    552(a)(4)(B).    The  parties  filed cross-motions  for          summary judgment.  The district court directed the Army to submit                                          3          a so-called Vaughn Index, see Vaughn v. Rosen, 484 F.2d 820,  824                      ______        ___ ______    _____          (D.C.  Cir. 1973), cert. denied, 415 U.S. 977 (1974), which lists                             ____  ______          the precise grounds for the Army's exemption claims  with respect          to each redaction or withheld document, as follows:                    A. IG Report                         1         Identity  of the  six RING  officers who                                   were   targets   of  the   investigation                                   [Exemptions 6 & 7(C)];                         2,6       IG's  conclusions  as  to  whether  each                                   allegation    was    substantiated    or                                   unsubstantiated [Exemption 5];                         3,5       IG's  synopsis  of  each allegation  and                                   findings of fact [Exemptions 5 & 7(D)];                         4         Statements provided  by confidential and                                   non-confidential witnesses [Exemptions 5                                   & 7(D)];                         7         IG's  final   recommendations  regarding                                   further  disciplinary  action [Exemption                                   5];                    B.   Full  transcript  of statement  by Nonconfidential                         source [Exemptions 5 & 7(D)];                    C-E.  Internal  memoranda  and directives  between                    Army      VCOS and IG's Office [Exemptions 6, 7(C)                    &    7(D)];                    F-I.  Four  anonymous  letters [Exemptions  6,  7(C)  &          7(D)];                    J.   Travel vouchers [Exemptions 6, 7(C) & 7(D)].1          Following an  in camera  inspection of the  unredacted documents,                        __ ______                                        ____________________               1Throughout the opinion, relevant  portions of the IG Report          and exhibits  are identified by  reference to their  Vaughn Index          numbers.  The Army did not appeal from the order  to disclose, in          their entirety, Vaughn Index B and J.  See Providence Journal Co.                                                 ___ ______________________          v.  Department of Army, 781  F. Supp. 878,  888-92 (D. R.I. 1991)              __________________          (Appendix A).                                          4          the district court granted  partial summary judgment and directed          the  Army to  release the  entire IG  Report, excepting  only the          names  (and  other identifying  information) of  the confidential          _____          sources (Vaughn Index    A3, A4, A5) and the various intra-agency          memoranda (Vaughn Index    C-E).2                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                    The  FOIA  was designed  to  expose  the operations  of          federal agencies to public scrutiny without endangering efficient          administration,  as  a means  of  deterring  the development  and          application  of a body  of "secret law."   See Department  of Air                                                     ___ __________________          Force v.  Rose, 425  U.S. 352,  360-61 (1976);3   NLRB v.  Sears,          _____     ____                                    ____     ______          Roebuck  & Co., 421  U.S. 132, 153  (1975). As  the FOIA presumes          ______________          public entitlement  to agency information, an  agency which would          withhold  information  must  establish   its  right  to  an  FOIA          exemption.  See  5 U.S.C.    552(a) (4)(B).   The district  court                      ___          must  make a  de novo  determination as  to  the validity  of the                        __ ____          agency's exemption claim. See  Department of Justice v. Reporters                                    ___  _____________________    _________          Comm. for Freedom of the  Press, 489 U.S. 749, 755 (1989).   FOIA          _______________________________          exemptions  are construed  narrowly,   Department  of Justice  v.                                     ________    ______________________          Julian,  486 U.S. 1, 8  (1988); Curran v.  Department of Justice,          ______                          ______     _____________________                                        ____________________               2The Journal  does not  challenge the district  court ruling          relating to Vaughn Index C-E.               3Throughout the opinion, all citation references to agencies          or  departments are  to  United States  agencies or  departments,          unless otherwise indicated.                                          5          813  F.2d  473, 473-74  (1st Cir.  1987),  and any  "[d]oubts are          customarily to be resolved  in favor of openness."  Irons v. FBI,                                                              _____    ___          811 F.2d 681, 685 (1st Cir. 1987) [hereinafter "Irons I"].                                                          _______          A.  Exemption 5          A.  Exemption 5              ___________                    With respect to the IG Report's "subjective" evaluation          of the  evidence against the two senior RING officers, as well as          the IG's recommendations  to the  Army VCOS, the  Army asserts  a          claim under  Exemption 5 which prohibits  compelled disclosure of          "inter-agency or intra-agency memorandums or  letters which would          not  be  available by  law to  a party  other  than an  agency in          litigation  with the  agency."   5  U.S.C.    552(b)(5).   Agency          documents  which would not be obtainable by a private litigant in          an action against the agency under normal  discovery rules (e.g.,                                                                      ____          attorney-client, work-product, executive privilege) are protected          from  disclosure  under  Exemption 5.    United  States v.  Weber                                                   ______________     _____          Aircraft  Corp., 465 U.S. 792, 799  (1984); EPA v. Mink, 410 U.S.          _______________                             ___    ____          73, 86 (1973).  The Army relies on the executive or "deliberative          process"  privilege, see,  e.g.,  id. at  85-86 (1973)  (national                               ___   ____   ___          security memo  on nuclear testing prepared  for President), which          is  designed  to  safeguard  and  promote  agency  decisionmaking          processes in at least three ways:                    [I]t  serves  to  assure   that  subordinates                    within an agency  will feel  free to  provide                    the  decisionmaker   with  their  uninhibited                    opinions and recommendations without  fear of                    later  being subject  to  public ridicule  or                    criticism;   to  protect   against  premature                    disclosure of proposed  policies before  they                                          6                    have  been finally formulated or adopted; and                    to protect  against confusing the  issues and                    misleading  the  public  by dissemination  of                    documents  suggesting reasons  and rationales                    for a course of action which were not in fact                    the ultimate reasons for the agency's action.          Coastal States Gas Corp.  v. Department of Energy, 617  F.2d 854,          ________________________     ____________________          866 (D.C. Cir. 1980); see also Schell v. Department of Health and                                ___ ____ ______    ________________________          Human  Servs.,  843  F.2d  933,  939  (6th  Cir.  1988).    After          _____________          considering any potential impact  public disclosure might have on          the employee-advisor,  the agency decisionmaker, and  the public,          the  court  should  construe  Exemption  5  as  narrowly  as   is          "consistent with efficient Government operation."  Mink, 410 U.S.                                                             ____          at  89 (citation omitted).  Normally, a document will qualify for          protection under Exemption  5 if it  is both "predecisional"  and          "deliberative."   See Dow Jones  & Co. v.  Department of Justice,                            ___ ________________     _____________________          908 F.2d 1006, 1008-09 (D.C. Cir. 1990).               1.  "Predecisional Document" Test               1.  "Predecisional Document" Test                    ____________________________                    A document will  be considered  "predecisional" if  the          agency can (i) pinpoint the specific agency decision to which the          document correlates, Paisley v. CIA, 712 F.2d 686, 698 (D.C. Cir.                               _______    ___          1983), (ii) establish  that its author prepared  the document for          the purpose of assisting the agency official charged  with making          the agency decision, Renegotiation  Bd. v. Grumman Aircraft Eng'g                               __________________    ______________________          Corp., 421 U.S. 168,  184 (1975); Hopkins v. Department  of Hous.          _____                             _______    ____________________          and  Urban Dev., 929 F.2d 81, 84  (2d Cir. 1991); Coastal States,          _______________                                   ______________          617 F.2d at 866, and (iii) verify that the document "precedes, in          temporal sequence, the  'decision' to which it relates."   Senate                                                                     ______                                          7          of Puerto Rico v. Department of Justice, 823 F.2d 574, 585  (D.C.          ______________    _____________________          Cir. 1987).  The  Journal concedes that the Army VCOS ordered the          IG  to conduct  the preliminary  criminal investigation  and that          Army  command, not  the  IG, is  the  final decisionmaker  as  to          whether there is to be any further  disciplinary or prosecutorial          action against  the RING officers.   See Rules  for Court-Martial                                               ___          306(a) ("Each  commander has  discretion to dispose  of offenses.          . . ."); Hopkins, 929 F.2d at 85 (document "predecisional" if its                   _______          author  "lacked  any authority  to  take  final agency  action").          Thus, the IG Report would be a predecisional document.                    The  Journal  argues  nonetheless  that   Army  command          implicitly  adopted the IG Report by its apparent failure to take          any  action  within a  reasonable  time  after issuance,  thereby                       ______ _  __________  ____          disentitling  the IG's recommendations  to "predecisional" status          under  Exemption 5.  The Journal contends that its "implied adop-          tion" theory is  necessary to prevent an agency's use  of its own          inaction  as an absolute shield from compelled FOIA disclosure of          ________          the results of any internal investigation.4                    The "implied  adoption" theory is  neither supported by                                        ____________________               4The  Journal  suggests   also  that   the  Army's   earlier          "approval" of the IG Report, coupled with the  apparent inaction,          signified  official  Army "adoption"  of  the  IG  Report.   Army          Regulations  provide,  however,  that  "[w]hen an  IG  report  is          approved, conclusions and recommendations contained in the report          do  not  constitute the  directing  authority's  decision nor  an          explanation of  the decision unless specifically  adopted as such          in  writing by  the  directing  authority."    DAR  20-1,    3-1c          __  _______                                                     _          (emphasis added); cf. Niemeier  v. Watergate Special  Prosecution                            ___ ________     ______________________________          Force,  565  F.2d 967,  973  (7th Cir.  1977)  (adoption requires          _____          something  more  than  mere  quotation, such  as  an  affirmative          manifestation  that the predecisional  document's conclusions are          deemed "consistent" with final agency decision).                                            8          the plain language of  Exemption 5 nor the related  caselaw,5 and          would  disserve the  recognized  aims of  Exemption  5.   Express          adoption  of a  predecisional  document is  a prerequisite  to an          agency waiver under Exemption  5.  See, e.g., Sears,  421 U.S. at                                             ___  ____  _____          161 (agency must "expressly  . . . adopt or incorporate [predeci-                            _________          sional  document] by  reference"  in final  decision); Ahearn  v.                                                                 ______          United States Army  Materials & Mechanics  Research Ctr., 580  F.          ________________________________________________________          Supp. 1405,  1407 (D.  Mass. 1984) (same).   Courts  consistently          have  refused  to infer  agency  adoption  based on  mere  agency          inaction.   See, e.g., Brinton  v. Department of  State, 636 F.2d                      ___  ____  _______     ____________________          600,  605 (D.C.  Cir.  1980)  (age  or  length  of  retention  of          predecisional document  irrelevant to question  of agency  "adop-          tion"),  cert. denied, 452 U.S.  905 (1981); Ashley v. Department                   ____________                        ______    __________          of Labor,  589  F. Supp.  901,  908 (D.  D.C. 1983)  (no  implied          ________          adoption  "even if a disputed document is several years old . . .          [and] has not yet produced a[n] [anticipated] final decision").6                                        ____________________               5The one decision cited in support of the theory, Washington                                                                 __________          Post Co.  v. Department of Air  Force, 617 F. Supp.  602, 605 (D.          ________     ________________________          D.C. 1985),  is  inapposite, as  it  involved an  express  agency                                                            _______          adoption of an IG report.               6The Army argues that the Journal cannot assert its "implied          adoption"  claim  because  it  failed to  request  disclosure  of          documents describing any final agency action following "approval"          of the  IG Report.   In  our view,  however, the  initial Journal          request, which sought "all  documents pertaining to the Inspector          General's investigation of the  Rhode Island National Guard," was          broad enough to include  any such written record of  final action          by the Army, if one  exists.  See McGehee v. CIA,  697 F.2d 1095,                                        ___ _______    ___          1102-03 (D.C.  Cir. 1983)  (once agency  responds  fully to  FOIA          requests,  no  continuing  duty to  disclose  documents generated          later;  in general, prior to full compliance, there is an ongoing                              _____ __ ____ __________          obligation  to  update disclosure).    For  present purposes,  we          assume  that no  document evidencing  final  Army action  has yet          issued.                                          9                    The  proposed "implied  adoption" rule  would undermine          Exemption  5 by inhibiting the  free exchange of  views within an          agency.    Agency advisors  responding to  supervisory directives          might  be   less  forthcoming   with  their  advice   lest  their          recommendations be exposed to public scrutiny in  the event final          agency  action  is not  promptly taken.    See Access  Reports v.                                                     ___ _______________          Department  of Justice, 926 F.2d 1192, 1196 (D.C. Cir. 1991) ("At          ______________________          the  time  of  writing the  author  could  not  know whether  the          decisionmaking   process  would   lead  to   a  clear   decision,          establishing the privilege, or fizzle, defeating it.  Hedging his          bets, he would be drawn into precisely the caution . . . that the          exemption seeks to render unnecessary."); Schell, 843 F.2d at 941                                                    ______          (same).7   Especially  is this  true where,  as here,  one viable          agency   option  is  to  take  no  final  "action"  on  the  IG's          recommendations.    See  Rules for  Court-Martial  306(c)(1)  ("A                              ___          commander may decide to take no action on an offense.  If charges          have been preferred, they may be dismissed.").                    Accordingly, we decline to depart from  the established          view that an agency may meet its burden of proof  under the "pre-          decisional document" test by  demonstrating that the preparer was          not the  final decisionmaker and  that the contents  confirm that          the document  was originated to facilitate  an identifiable final          agency decision.  See Mobil  Oil Corp. v. EPA, 879 F.2d  698, 703                            ___ ________________    ___                                        ____________________               7In  contrast,   express   agency  adoption   represents   a          significant  vindication of  a subordinate  advisor's recommenda-          tion, posing little risk  of retaliation or public embarrassment.          See,  e.g., Safecard  Servs., Inc.  v. SEC,  926 F.2d  1197, 1204          ___   ____  ______________________     ___          (D.C. Cir. 1991); see also Washington Post, 617 F. Supp. at 605.                            ___ ____ _______________                                          10          (9th Cir.  1989) (agency  asserting  Exemption 5  claim need  not          demonstrate differences between contents of deliberative document          and final agency decision).                                          11               2.  "Deliberative Document" Test               2.  "Deliberative Document" Test                    ___________________________                    A "predecisional" document  may still not  "fall within          the  confines   of  Exemption  5  if  it   is  not  part  of  the          'deliberative  process.'"   Formaldehyde Inst.  v. Department  of                                      __________________     ______________          Health and Human  Servs., 889  F.2d 1118, 1121  (D.C. 1989);  see          ________________________                                      ___          also Access Reports,  926 F.2d at 1195  (document must "reflect[]          ____ ______________          the  give-and-take   of  the  consultative   process")  (citation          omitted).   The Army  asserts that two features  of the IG Report          contributed to the deliberative process:  (1) Vaughn Index    A2,          A6 and A7, conveying the IG's views as to whether the allegations          were substantiated, as well  as the IG's recommendations relating          to  any appropriate agency action, and (2) Vaughn Index    A3 and          A5,  which include  the IG's  findings of  fact and  summaries in          support of the  IG's recommendations.   The district court  ruled          that:                    the [IG's]  investigatory  report was  not  a                    deliberative  policy-making  document.    The                    investigation  concerned factual  allegations                    against high-ranking officials.  This  is not                    agency  policy  in  the  same  vein  as Mink,                                                            ____                    supra,  where reports  were prepared  for the                    _____                    President on the advisability  of underground                    nuclear testing.                         If  the  [IG]  report concerned  broader                    issues      if it  was  a  report of  general                    recommendations   on  disciplining   superior                    officers    the situation would be different.                    However, this report  is factually  specific;                                             _________  ________                    it does not  reflect "agency give-and-take                       of the deliberative process     by which  the                    decision itself is made."          Providence Journal v. Department  of Army, 781 F. Supp.  878, 885          __________________    ___________________                                          12          (D.  R.I.  1991) (citing  Weber  Aircraft, 465  U.S.  792 (1984);                                    _______________          Cooper  v.  Department of  Navy, 558  F.2d  274 (5th  Cir. 1977))          ______      ___________________          (emphasis added) (other citations omitted).                    A predecisional document will qualify as "deliberative"          provided it (i) formed an essential link in a specified consulta-          tive  process,  (ii) "reflect[s]  the  personal  opinions of  the          writer  rather than  the  policy of  the  agency," and  (iii)  if          released, would "inaccurately reflect or prematurely disclose the          views of the agency."   National Wildlife Fed'n v.  Forest Serv.,                                  _______________________     ____________          861 F.2d 1114, 1118-19 (9th Cir. 1988); see also Safecard Servs.,                                                  ___ ____ ________________          Inc. v. SEC,  926 F.2d 1197, 1204  (D.C. Cir. 1991) (agency  must          ____    ___          show the decisional "context" of the document within  the process          used  to reach determinations "like  those in issue"); cf. Senate                                                                 ___ ______          of  Puerto Rico,  823  F.2d at  585-86  (agency bears  burden  of          _______________          establishing "what deliberative process is involved, and the role          played by the documents in the course of that process") (citation          omitted).   Even where expressions of  personal opinion generally          render  a document  "deliberative,"  however, segregable  factual          portions of  the document  might  still be  subject to  compelled          disclosure  if,  for  example,  they  are  not  so  "inextricably          intertwined" with the deliberative material that their disclosure          would compromise  the private  remainder of  the documents.   See                                                                        ___          Mink, 410 U.S. at 92.          ____                    a.  "Consultative Process"                    a.  "Consultative Process"                         ____________________                    We  find no  authority  for the  suggested  distinction                                          13          between  "reports  of  general  recommendations  on  disciplining          superior officers"  and "factual" reports prepared  in the course          of internal disciplinary  investigations against particular indi-          viduals.  See, e.g.,  Renegotiation Bd., 421 U.S. at  184 (agency                    ___  ____   _________________          deliberations preceding adjudicative decision involving specified          persons implicate  Exemption 5);  National Wildlife, 861  F.2d at                                            _________________          1118  (Exemption 5  not  limited to  consultations over  official          "policy");  Brockway v. Department  of Air Force,  518 F.2d 1184,                      ________    ________________________          1192  (8th  Cir.  1975)  (Exemption  5  extends  beyond  "policy"          memoranda to include all documents not discoverable in litigation                                   _________ ___ ____________ __ __________          with agency); see also, e.g., Swisher v. Department of Air Force,          ____ ______   ___ ____  ____  _______    _______________________          495 F. Supp.  337 (W.D. Mo. 1980), aff'd, 660  F.2d 369 (8th Cir.                                             _____          1981) (IG Report  constitutes "deliberative" document);  American                                                                   ________          Fed'n of Gov't Employees v. Department of Army, 441 F. Supp. 1308          ________________________    __________________          (D. D.C.  1977) (same).  Rather, the appropriate judicial inquiry          is whether the  agency document  was prepared  to facilitate  and          inform a final decision or deliberative function entrusted to the          agency.   See, e.g., Russell v. Department of Air Force, 682 F.2d                    ___  ____  _______    _______________________          1045, 1046-48 (D.C. Cir. 1982) (editorial review process used  by          Office of Air Force History to prepare historical document on use          of  Agent Orange  during  Vietnam  war  constitutes  deliberative          agency function).                      As Army  command controls  the agency  decision whether          Army personnel are to  be disciplined for alleged misconduct,  or          prosecuted under the Uniform Code of Military Justice for alleged          criminal activity,  its deliberative  task is no  less an  agency                                          14          function  than   the  formulation   or  promulgation   of  agency          disciplinary policy.   As with other  discretionary prosecutorial          decisions,   many   considerations   contribute  to   the   final          determination by Army command, including the rank of the investi-          gated officers,  the seriousness of the  allegations, the overall          reliability of the evidence,  the relative appropriateness of the          available  forms  of  remediation,  and  any  special  mitigating          circumstances.  Cf.  Senate of Puerto Rico, 823 F.2d  at 585 n.38                          ___  _____________________          ("[T]he process  leading to  a decision  to initiate,  or forego,          prosecution  is  squarely  within  the  scope  of  the  privilege          . . . .").  It is not surprising, therefore, that the Army has in          place a confidential consultative process to ensure maximum input          from the chain of command concerning the need for further action.          See  Russell, 682 F.2d  at 1048  (agency has  "much at  stake" in          ___  _______          "candid consideration" where it must be prepared to "stand by its          [final decision] in the public forum,  and in light of the possi-          bility of . . . litigation . . . perhaps in the judicial forum as          well").                    b.  "Essential" to Consultative Process                    b.  "Essential" to Consultative Process                         __________________________________                    Neither  can we agree that the  primary function of the          IG  Report was to convey  raw evidence or  data discovered during          the  investigation   and  that  the  IG's   recommendations  were          peripheral  or gratuitous.  Schell,  843 F.2d at  940 (court must                                      ______          determine  whether   document   was  "essential"   or  merely   a          "peripheral item which just 'beefs up' a position with cumulative                                          15          materials")  (citation omitted).  We  think it is  clear that the          recommendations  made by the IG     the agency  official with the          investigative  expertise  and the  greatest familiarity  with the          first-hand evidence     are highly important to Army command even          though it  is not obligated in  the final analysis to  credit the          IG's  recommendations.  See, e.g.,  Hopkins, 929 F.2d  at 85 (HUD                                  ___  ____   _______          inspector  reports contain  "recommendations to  higher officials          that various agency actions should be taken."); Formaldehyde, 889                                                          ____________          F.2d at  1125 (reliance  on temporary consultants'  opinion often          necessary);  Schell, 843  F.2d at  942 ("It  is the free  flow of                       ______          advice, rather than the value of any particular piece of informa-          tion, that Exemption  5 seeks to protect.").   We cannot say that          the  IG's  recommendations  were   in  any  sense  either  merely          cumulative or peripheral.  We conclude, at  a minimum, therefore,          that  a significant portion of the IG Report (Vaughn Index    A2,          A6, and A7)  was "essential" to  the consultative process  within          the agency.                    c.  Premature Disclosure of IG's "Personal Opinions"                    c.  Premature Disclosure of IG's "Personal Opinions"                        _______________________________________________                    Nor is the chilling effect on candid advice from agency          subordinates,  which   Exemption  5  was  designed  to  mitigate,          significantly diminished merely  by reason of  the fact that  the          subordinates'  recommendations relate  to the  appropriateness of          disciplinary   action   against   particular  individuals.      A          subordinate agency advisor may have more  cause for concern about                                              ____          public disclosure of disciplinary recommendations involving high-                                          16          level  agency officials, since there  may be a  real or perceived          risk  of retaliation from a vindictive official who is the target          of the  advisor's findings or  recommendations.  Cf.  Cooper, 558                                                           ___  ______          F.2d  at  277  ("[S]ervice people  are  human,  too:   they  fear          disciplinary  action,  work  and  hope  for  promotion,   possess          loyalties  and ties  of friendship  to people  and organizations,          [and]   dislike  speculating   to  the   derogation   of  others'          reputations . . . .").                    Army command is not required  to accept the IG's recom-          mendations.    Indeed, command  already  may  have exercised  its          prerogative to take  no further action on  these allegations, for          reasons  entirely unrelated  to  the grounds  espoused in  the IG          Report.  Accordingly, since  public release of the recommendatory          sections in the IG Report  would either "inaccurately reflect  or          prematurely disclose the views  of the agency," the Army  may not          be required to reveal any information  referenced in Vaughn Index             A2, A6, or A7.8                                        ____________________               8None  of the  cases relied  on by  the Journal,  or  by the          district court, supports a contrary result.  Weber Aircraft,  465                                                       ______________          U.S.  at 796 (Air Force  waived Exemption 5  claim by voluntarily                                                                ___________          releasing  entire  record  of  collateral  investigation  of  air                     ______          crash); Playboy Enters., Inc. v. Department  of Justice, 677 F.2d                  _____________________    ______________________          931,  935  (D.C.  Cir.  1982)  (plaintiff  sought  disclosure  of          contents  of witness statements only, but did not "'wish to probe          the process whereby the task force assigned reliability or weight          to specific evidence'"); Cooper, 558 F.2d at 279 (Navy investiga-                                   ______          tive  report  of helicopter  crash,  which  was primarily  "fact-          oriented," with  the expression  of an opinion  "incidental," not          entitled to blanket exemption; on remand, however, district court                      _______            __ ______          must  scrutinize  each section  of  report  to determine  if  its          disclosure would "safeguard  the consultative or  decision-making          process");  Brockway, 518  F.2d  at 1185  (plaintiff sought  only                      ________          witness statements concerning air  crash (not findings of fact));          Project on  Military Procurement  v. Department  of Navy, 710  F.          ________________________________     ___________________                                          17                    d.  "Inextricably Intertwined" Fact-Oriented Material                    d.  "Inextricably Intertwined" Fact-Oriented Material                         ________________________________________________                    The  Army  contends that  Vaughn  Index     A3 and  A5,          conveying  the IG's conclusions as  to the facts  revealed by the          evidence  discovered during the  investigation, should  be exempt          because the  conclusions are so  "inextricably intertwined"  with          the IG's mental processes that their disclosure necessarily would          reveal the substance  of the  IG's recommendations.   See,  e.g.,                                                                ___   ____          Quarles  v. Department of Navy,  893 F.2d 390,  392-93 (D.C. Cir.          _______     __________________          1990) (cost estimates  derive from "complex set  of judgments" by          preparers);  Russell,  682   F.2d  at   1048  (historical   facts                       _______          essentially "interpretive" choices by reviewer); Swisher,  495 F.                                                           _______                                        ____________________          Supp.  362, 367 (D. D.C.  1989) (plaintiff entitled  to waiver of          fee  on FOIA  request;  court does  not  reach merits  of  Navy's          potential  Exemption 5  claim,  nor  plaintiff's  entitlement  to          disclosure);  Washington Post  Co., 617 F.  Supp. at  605-07 (Air                        ____________________          Force "waived" right to  prevent disclosure of most fact-oriented          portions  of  document  either  by express  adoption  of  related                                             _______  ________          recommendatory sections  or by voluntary disclosure  of summaries                                         _________ __________          of more  detailed fact-oriented  sections;  government failed  to          meet burden by providing "empirical support" that remaining fact-          oriented sections were  "inextricably intertwined" with  exempted                                                                   ________          deliberative material).               Adams v. United States, 686 F. Supp. 417 (S.D.N.Y. 1988), is               _____    _____________          the  only  case  the Journal  cites  which  is  at all  apposite.          However, Adams stands  on a  mistaken premise.   The Adams  court                   _____                                       _____          held  that the  IG's  findings of  fact  were irrelevant  to  the          deliberative process  because the commanding officer  was free to          disregard the findings in making the final disciplinary decision,          and that Exemption 5 applies "only insofar as [] disclosure might          tend to expose the decisionmaker's deliberative process."  Id. at                             _______________                         ___          419-20 (citation  omitted) (emphasis  in original).   Exemption 5          protects the deliberative process,  which necessarily involves at                                    _______          least two  parties:  the advisor and the decisionmaker.  The fact          that the  decisionmaker may choose to disregard the IG's advisory          findings does  not alter the fact that (1) the IG, who had first-          hand  exposure to  the  witnesses and  the  evidence, is  in  the          optimum  position to make informed  findings of fact;  and (2) an          informed final  decision requires  the IG's candid  assessment of          witness demeanor and credibility.                                          18          Supp. at  340 (IG's  investigative conclusions  exempt); American                                                                   ________          Fed'n, 441 F.  Supp. at 1313 (IG's  preliminary conclusions "play          _____          an integral  part in the  consultative process").   The  district          court held  that the  IG's evidentiary conclusions  and rationale          are not exempt from disclosure since "[t]he mere act of selecting          facts  for  inclusion  in a  report  does  not  make that  report          deliberative," and  "[s]imple judgment exercised in preparing the          Report of Investigation does not equal deliberation."  Providence                                                                 __________          Journal, 781 F. Supp. at 885.9          _______                    The Exemption 5 analysis employs a rough-hewn dichotomy          between  opinion and  fact:   whereas  the purely  recommendatory          provisions in  a deliberative predecisional  document are  exempt          from compelled disclosure, "memoranda consisting only of compiled          factual  material  or  purely   factual  material  contained   in          deliberative  memoranda  and  severable from  its  context  would                                        _________ ____  ___  _______          generally be available for discovery . . . ."  Mink,  410 U.S. at                                                         ____          87-88 (emphasis  added);  see  also  Hopkins,  929  F.2d  at  85;                                    ___  ____  _______          Russell, 682 F.2d at 1048; Mead Data Cent., Inc. v. Department of          _______                    _____________________    _____________          Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977).   As the dichotomy          _________          between  opinion  and fact  is  not  clear-cut, courts  generally          follow  a  "functional"  approach  in  an  attempt  to  determine                                        ____________________               9Even though the Army raised  the issue before the  district          court,  see Providence Journal, 781 F. Supp. at 889 (Appendix A),                  ___ __________________          on  appeal it  apparently  disclaims any  contention that  Vaughn          Index   A4, objectively recounting the contents of the statements          provided by the 27  solicited sources, is entitled  to protection          from FOIA disclosure under Exemption 5.  See Playboy Enters., 677                                                   ___ _______________          F.2d  at 935 (mere selection of facts for inclusion in report not          "deliberative").                                           19          "whether production of the  contested document [or section] would          be  'injurious  to the  consultative  functions  of government  .          . . .'"   Mink, 410  U.S. at 87  (citing Kaiser  Aluminum & Chem.                    ____                           ________________________          Corp. v. United States, 157 F. Supp. 939, 946 (Ct. Cl. 1958)).          _____    _____________                    Even when  requested material is found  to be                    factual, the courts have held it exempt where                    they  were  convinced that  disclosure "would                    expose an agency's decisionmaking  process in                    such a way as to discourage candid discussion                    within  the agency and  thereby undermine the                    agency's ability to perform its functions."          Quarles, 893  F.2d at  392  (citation omitted);  see also  Access          _______                                          ___ ____  ______          Reports, 926 F.2d at 1195  (central inquiry is whether disclosure          _______          would   "discourage  candid   discussion  within   the  agency.")          (citation  omitted); Formaldehyde, 889 F.2d at 1123 (opinion-fact                               ____________          distinction is  subordinate to inquiry concerning  "effect of the          materials' release"  on deliberative process).   Factual material          should be considered  segregable if  it is  not so  "inextricably          intertwined" with the  deliberative material that its  disclosure          would "compromise the confidentiality of deliberative information          that  is entitled  to protection."   Mink,  410 U.S.  at 92;  see                                               ____                     ___          Hopkins, 929 F.2d at 85.          _______                    While mere selection of the evidence deemed material to                                                                ________          an agency  decision may  not implicate Exemption  5,10 disclosure                                        ____________________               10In  some cases,  a predecisional distillation  of material          facts  from a larger public record may reveal the final decision-          maker's  mental  processes by  enabling  public  scrutiny of  the          information  not  relied  on  in  arriving at  the  final  agency                       ___          decision.   See, e.g., Russell, 682 F.2d at 1049 (comparison with                      ___  ____  _______          final agency  action would  reveal what the  agency thought  were          insignificant  preliminary findings  of fact);  Montrose Chemical                                                          _________________                                          20          of the IG's findings of fact necessarily would reveal the opinion          of the IG on the credibility and probity of the evidence relating          to each allegation.  Findings of fact arrived at in the personnel          management context reflect a significant degree  of subjectivity.          Our review of these Vaughn-indexed documents discloses  instances          of conflicting and inconsistent witness statements.  The findings          of  fact in  the  IG  Report  necessarily  were  premised  on  an          assessment and  resolution of  the relative credibility  of these          statements,  as well as subjective judgments as to the probity of          other evidence  developed during the investigation.   Cf. Playboy                                                                ___ _______          Enters., Inc. v. Department  of Justice, 677 F.2d 931,  935 (D.C.          _____________    ______________________          Cir.  1982) (plaintiff did not "wish to probe the process whereby          the  task  force  assigned  reliability  or  weight  to  specific          evidence").  Revelation of the IG's findings  of fact undoubtedly          would  divulge  the  substance   of  the  related  recommendatory          sections  with   which  they  comport.11     Accordingly,  as  we          conclude  that the recommendatory provisions in the IG Report are          exempt from disclosure, the Army  cannot be compelled to disclose          the IG's findings of fact in Vaughn Index    A3 and A5.                                        ____________________          Corp. v. Train, 491 F.2d 63, 67-68 (D.C. Cir. 1974)  (same).  But          _____    _____          absent any  documentation evidencing a final  agency decision, we          need not address this issue.               11For instance, disclosure of  a finding that a high-ranking          officer did or did  not engage in particular conduct  reveals the          IG's judgment  as to whether the allegation  was substantiated by          the evidence.  Were such findings subject to compelled disclosure          in  these circumstances,  forthright findings  of fact  by agency          subordinates, based on disputed evidence, would be harder to come          by.   See American Fed'n, 441 F.  Supp. at 1313 (chilling effects                ___ ______________          of prospective disclosure are greatest in the case of an internal          criminal investigation of agency personnel).          ________                                          21                    B.  Exemption 7(D)          B.  Exemption 7(D)              ______________                    The Army claims that the statements provided by twenty-          eight (twenty-four  solicited witnesses and four anonymous infor-          mants) of  its thirty-one sources  (Vaughn Index    A4,  F-I) are          nonetheless protected  under Exemption  7(D), which  shields from          compelled  disclosure  records and  information compiled  for law          enforcement purposes,                    but   only  to   the   extent  that   the[ir]                                __   ___   ______                    production . . .                     could reasonably be  expected to disclose the                                                     ________ ___                    identity of a confidential source12 . . .                    ________ __ _ ____________ ______                    and, in  the case of a  record or information                    compiled   by    criminal   law   enforcement                    authority  in  the   course  of  a   criminal                    investigation . . .  information furnished by                                         ___________ _________ __                    a confidential source.  (Emphasis added.)                    _ ____________ ______                    Exemption 7  was intended  to avert the  "drying-up" of          sources of information  necessary to conduct  criminal investiga-          tions.   Irons v.  FBI, 880 F.2d  1446, 1450-51  (1st Cir.  1989)                   _____     ___          [hereinafter  "Irons  II"].    An agency  claiming  the  right to                         _________          decline  disclosure on  the basis  of Exemption 7(D)  must demon-          strate  that  the  particular  document  was  compiled  for  "law          enforcement   purposes"   from   information   provided    by   a          "confidential source."   See Curran,  813 F.2d at  473-74 (unlike                                   ___ ______          certain  other  FOIA exemptions,  once  both elements  of  a 7(D)          exemption  are established,  the  court should  not  engage in  a                                                          ___                                        ____________________               12The Journal seeks disclosure of the contents of the state-          ments only, not the witnesses' identities.                                          22          balancing of interests); Brant Constr. Co. v. EPA, 778 F.2d 1258,                                   _________________    ___          1262-63  (7th Cir. 1985) (same).  The Journal challenges only the          "confidentiality" of the Army's sources.13                    Document  confidentiality depends  not on  the contents          but  on the terms  and circumstances under  which the information          was  acquired by  the agency.    See Irons  I, 811  F.2d at  685;                                           ___ ________          Johnson  v. Department of Justice, 739 F.2d 1514, 1517 (10th Cir.          _______     _____________________          1984); see also Irons  II, 880 F.2d at 1448  ("confidential" does                 ___ ____ _________          not mean "secret" information,  but information "provided in con-          fidence").    A  confidential  source  is  one  who  "'provide[s]          information under  an express assurance of  confidentiality or in          circumstances from  which such  an assurance could  be reasonably          inferred.'"  Id. at 1447 (quoting S. Rep. No. 1200, 93d Cong., 2d                       ___          Sess. 13 (1974)) (citation omitted).  We discuss the two types of          source statements requested by the Journal:  (1) solicited state-          ments  from confidential  sources  (Vaughn Index    A4), and  (2)                                        ____________________               13The Journal does not  dispute that the requested documents          satisfy the threshold criterion under Exemption 7(D), namely that          the records were compiled by a criminal law enforcement authority          in the course of  a criminal investigation. See Curran,  813 F.2d                                                      ___ ______          at 475;  Shaw v. FBI,  749 F.2d 58,  63 (D.C. Cir.  1984) (agency                   ____    ___          must  "identify . . .  a  particular individual  or a  particular          incident as the object of its investigation and . . . the connec-          tion between that individual or incident and a . . . violation of          federal law.");  cf. Stern  v. FBI,  737 F.2d  84, 89  (D.C. Cir.                           ___ _____     ___          1984) (mere  internal disciplinary proceeding not  sufficient for          Exemption 7(D); investigation must be targeted at specific person          for actions  punishable either  by criminal or  civil sanctions).          For Exemption 7 purposes,  Inspectors General are normally deemed          "criminal  law enforcement"  agencies,  Brant, 778  F.2d at  1265                                                  _____          (citing New England Apple  Council v. Donovan, 725 F.2d  139 (1st                  __________________________    _______          Cir. 1984))  (noting  "the substantial  similarities between  the          activities of the FBI and OIGs [Offices of Inspectors General]").          These allegations  exposed the  RING officers to  possible court-          martial.                                          23          unsolicited  statements from  confidential sources  (Vaughn Index             F-I).               1.  Statements Solicited from Confi-               1.  Statements Solicited from Confi-                   dential Sources (Vaughn Index   A4)                   dential Sources (Vaughn Index   A4)                   ___________________________________                    The  district  court  found  that  twenty-four  of  the          twenty-seven individuals from  whom information was  solicited by          the IG  qualified as "confidential" sources,  since they accepted          express   agency  assurances  of   confidentiality;  hence  their          identities were protected from  disclosure under the first clause          __________          of Exemption 7(D).  The district court nevertheless held that the          contents of  each  statement solicited  from  these  confidential          ________          sources  must  be  disclosed  because  the  information  was  not          "furnished  only by  the  confidential source."   See  Providence                      ____                                  ___  __________          Journal, 781 F. Supp. at  886-87. The court did not identify  the          _______          nonconfidential  sources   to  which   it  made   reference,  but          presumably meant to  include the  anonymous authors  of the  four          unsolicited  letters which triggered  the internal investigation,          as well as the three sources who expressly declined assurances of          confidentiality.                    Although  we agree  with  the district  court that  the          identities  of the  twenty-four confidential  sources  are exempt          from  disclosure under  the first  clause of  Exemption  7(D), we          cannot  agree  that  the  contents of  their  statements  are not                                    ________          shielded from disclosure under  the second clause.  The  district          court ruling relied entirely  on the word "only"     appearing in          the  second clause of Exemption 7(D)    which Congress deleted in                                          24          1986 for  the explicit  purpose  of clarifying  the broad  policy          goals served  by the second clause.14   Irons I, 811  F.2d at 687                                                  _______          ("'There  should  be no  misunderstanding that  .  . .  [the 1986          modifications]  are  intended  to   broaden  the  reach  of  this          exemption  and to  ease  considerably a  Federal law  enforcement          agency's  burden  in  invoking  it.'")  (citing  199  Cong.  Rec.          S16504).   Under  amended Exemption  7(D), an  agency may  not be          ordered to  disclose information from a  confidential source even          if  nonconfidential sources  have  provided the  agency with  the          identical information.15                    The  Journal  nevertheless  urges  affirmance   of  the          district  court ruling,  on the  ground that  the Army  should be          required  to  prove  that  each  individual  witness  either  (1)          initiated the  request for confidentiality, or  (2) articulated a          _________                                           ___________                                        ____________________               14Prior to the 1986 amendment,   552(b)(7)(D) exempted               investigatory  records  compiled  for  law  enforcement               purposes, but only to the extent that the production of               such  records would  . . . 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.            (Emphasis  added.)   The  1986 amendment  eased the  government's          burden of proof substantially.  For the phrase "would .  . . dis-          close," it  substituted the phrase "could  reasonably be expected          to disclose," and it deleted the word "only" in the final clause.          See supra p. 22; see also Irons I, 811 F.2d at 687.            ___ _____        ___ ____ _______               15The  Journal   acknowledges   that  the   district   court          mistakenly relied on the unamended version of Exemption 7(D).  It          concedes as  well that the  district court's  finding that  these          twenty-four witnesses did receive express assurances of confiden-          tiality is supportable.                                          25          legitimate   reason   for  invoking   confidentiality  respecting          statement  content  after  the  IG made  the  initial  tender  of                              _____          confidentiality.  Absent some such prophylactic rule, the Journal          argues, a  federal agency  could insulate itself  from legitimate          FOIA disclosure  requests merely by  offering confidentiality  to          all sources, whether or not required or requested by the source.                    The Journal  cites no authority for  its proposed rule,          and sound policy considerations counsel against it.  Muzzling law          enforcement agencies in order to deter tenders of confidentiality          likely would  risk "drying-up" the flow of  information from many          wary witnesses with valuable information, especially  sources who          might reasonably expect that  an agency would extend an  offer of          confidentiality if  it were  an available  option.  Moreover,  in          circumstances where law enforcement officials solicit information          pertaining to a criminal investigation, see supra note 13, absent                                                  ___ _____          evidence to the contrary  the courts have inferred  agency assur-          ances of confidentiality  notwithstanding agency  silence.   See,                                                                       ___          e.g., Dow Jones, 908 F.2d at 1010.          ____  _________                    A requirement that agency assurances of confidentiality          be subjected to post  hoc judicial evaluation as proposed  by the                          ____  ___          Journal  promises  more  mischief  than  benefit.    The task  of          evaluating  the  "legitimacy"   of  confidentiality  claims   and          assurances  on  a  witness-by-witness  basis would  not  only  be          onerous but  often fruitless.   It  would be  rare that a  source          would  be  unable   to  advance  some   colorable  basis  for   a          confidentiality  claim, given  the  subjective nature  of witness                                          26          concerns about  possible retaliation.  Perhaps  more importantly,          mere awareness by potential  sources that the agency's assurances          of "content" confidentiality would be  subject to second-guessing          by the courts (advice  with which fairness would seem  to require          that  an  agency  provide   its  potential  sources  in  advance)          frequently would mean that  only the unwary would be  inclined to          provide information in an internal criminal investigation.                    We  think   it  more   fair  and  efficient   that  law          enforcement agencies be allowed  to continue to extend assurances          of  confidentiality  to  their  sources,  with  the  advice  that          confidentiality may  be disclaimed.   In this  manner, unfettered          agency control and manipulation of Exemption 7(D) protections can          be minimized  without jeopardizing  valuable agency sources.   As          the procedure utilized by the Army met this standard, its twenty-          four  solicited statements  are  exempt from  FOIA disclosure  in          their entirety under Exemption 7(D).               2.  Unsolicited Anonymous Sources (Vaughn Index    F-I)               2.  Unsolicited Anonymous Sources (Vaughn Index    F-I)                   ___________________________________________________                    The  district  court  found  that  the  four  anonymous          letters were not protected from compelled disclosure by Exemption          7(D) as there  was no evidence that  the letters were  sent under          implied assurances of confidentiality.   The court identified two          reasons for its ruling:  (1) the letters may have been written by          nonmilitary personnel unfamiliar  with the "obscure Army  regula-          tions" assuring  confidentiality, and  (2) copies of  the letters          were made available to other "disciplinary" officials,  including                                          27          Army generals and the Governor.  Providence Journal, 781 F. Supp.                                           __________________          at 887.                    Given  the obvious  import  of the  1986 amendments  to          Exemption 7(D), see supra  note 14, and the consequent  easing of                          ___ _____          the  law enforcement agency's burden of proof, we think the Tenth          Circuit has articulated a sound rationale for determining whether          the   unsolicited  information from  these anonymous  sources was          provided  under an  implied assumption  of confidentiality.   See                              _______                                   ___          Johnson, 739 F.2d at 1517-18 (summarizing three-way circuit split          _______          and citing cases).                    Most people would assume that the information                    they give to a criminal law enforcement offi-                    cial during a criminal investigation  will be                    kept confidential.   However, situations  may                    arise where it  is unreasonable to make  this                    assumption, and  in the  face of evidence  to                    this  effect in the  record, a district court                    will not be precluded from so finding.          Id. at 1518.            ___                    Generally  speaking, the  circumstances in  which these          anonymous  letters  were  submitted  comport  with  a  reasonable          assumption of confidentiality on the part of the writers.  Thus,                    [i]t is unrealistic to assume that a majority                    of  persons reporting to  an agency what they                    believe to  be illegal  or improper  acts are                    legally sophisticated.   To the  contrary, it                    is much more likely  that they would not know                    the  boundaries of  the FOIA  exemptions and,                    therefore, would not include in their initial                    communication  to  the   agency  an   express                    request  for  confidentiality.   They  may be                    frightened,  angry,  or  confused, and  their                    immediate concerns do not include creating an                    evidentiary record to  prove an assurance  of                                          28                    confidentiality   in    anticipation   of   a                    potential FOIA request.                         In cases  involving unsolicited informa-                    tion  from  ostensibly confidential  sources,                    the court  should look  to all factors  . . .                    [to   determine]   whether   a  request   for                                                    _______                    confidentiality  is  implicit, i.e.,  that in                                                   ____                    light  of  the  information  and  surrounding                    circumstances,   the  communication   in  all                    likelihood  would  not   have  been  made  if                    confidentiality had not been assured.          Brant, 778 F.2d  at 1263-64 (citation omitted) (emphasis  in ori-          _____          ginal)   (distinguishing    between   confidentiality   standards          applicable to solicited  and unsolicited sources).   At least  in          circumstances  where the allegations  might lead to court-martial          proceedings, it is reasonable to infer, absent contrary evidence,          that an anonymous  source reasonably expected  complete confiden-          tiality.    Evidence  that  might  arguably  support  a  contrary          inference in  the present  case would  be  as follows:   (1)  the          writers' decisions not to  sign their names; (2)  their expressed          intention  to provide copies to non-agency officials; and (3) any          other intrinsic manifestations in the letters which might reflect          their  lack  of  concern  about  public  dissemination  of  their          letters.                      Unlike Brant, which  involved an identified unsolicited                           _____                     __________          source,  see  id. at  1260-61, in  the  present case  the writers                   ___  ___          redacted their names.  The Journal contends that the redaction of          their  names  demonstrates  the  writers'  realization  that  the          letters might be publicized, and their satisfaction that they had          successfully excised all  forms of identifying material.   On the                                          29          contrary, we believe that their determination to remain anonymous          provides further  reason for indulging the  customary presumption          that the information was provided under an implicit  assurance of          confidentiality.                    Exemption  7(D)  contains  two  independent  safeguards                                                    ___________          against  content disclosure.  Under the first clause, there is to          be no disclosure of  information which would reveal  the identity                                                                   ________          of  the source.  Under  the much broader  second clause, however,          there  is  to   be  no  disclosure  of   information  offered  in          confidence,  without  regard  to  whether it  would  divulge  the          identity  of  the  source.    See  Irons II,  880  F.2d  at  1452                                        ___  ________          ("'[I]information furnished' exemption [applies]  irrespective of          subsequent public identification of the source . . . ."); Shaw v.                                                                    ____          FBI,  749 F.2d 58,  62 (D.C. Cir. 1984)  (unless second clause of          ___          Exemption  7(D)  protects  information beyond  that  which  would          reveal the identity of the source, it is redundant); Johnson, 739                                                               _______          F.2d at 1517 (same).                    The congressional purpose underlying the blanket exemp-          tion in the  second clause is readily apparent.   Although even a          known source may not  want the substance of the  information made          _____                          _________          public, sources who choose to clothe themselves in anonymity most          likely do so because  they do "not want to have  to rely upon the          agency's or the courts' judgment that disclosure  will not reveal          [their] identity (which  is of  course the basis  for a  separate          exemption     the first clause of Exemption  7(D) . . .)."  Shaw,                                                                      ____          749  F.2d at  61.   Indeed, without knowing  the identity  of the                                          30          source, and any  other potential clues  to the source's  identity          which the  details of  the allegations  might afford  the target,          often  the  court  would be  hard  put  to  sift all  identifying          information from  an  anonymous  letter.   Over  the  long  term,          uncertainty  about the sureness  and consistency of  this sort of          post  hoc  judicial  determination   could  affect  the  flow  of          ____  ___          important  information  from   anonymous  sources  necessary   to          effective  law enforcement.   Thus, if Exemption  7(D), clause 2,          would   preclude   disclosure   of  statements   solicited   from                                                           _________          confidential sources even though their names are redacted, it  is          not clear  to us that the  writer's redaction of his  or her name          from   an  unsolicited   letter,   without  more,   gainsays  the          reasonableness  of the normal presumption  that the writer of the          anonymous letter anticipated the maximum level of confidentiality          which would be available to other confidential sources.                    Second, we  can ascribe no controlling  significance to          the  fact  that the  authors of  three  of the  anonymous letters          (Vaughn Index     F, G, H)  expressed their intention  to provide          copies  to non-agency  officials, such as  the Governor  of Rhode          Island,  who  is  vested  with  concurrent  authority  to  pursue          disciplinary  action against RING personnel.   See R.I. Gen. Laws                                                         ___            30-2-1  (1982) (prescribing  Governor's statutory  authority as          commander-in-chief  of  RING).    Assuming  the  writers  carried          through with  their stated  intention to send  duplicate letters,          there is nothing in the record to suggest  that the writers could          not   reasonably   have   expected   comparable   assurances   of                                          31          confidentiality from  these non-agency  officials, or  that these          officials dealt with the letters in a manner which might arguably          render the reasonableness  of the writers' expectations  suspect.          See  Brant,   778  F.2d  at  1264   (simultaneous  submission  of          ___  _____          unsolicited letter to federal  and state enforcement agencies did          not  undermine   implied  assurance  of   confidentiality,  where          "nothing  in  the  record  indicates  . . .  that  these  [other]          agencies did not treat the letter as confidential").                    Finally,  two letters  (Vaughn Index     F, I)  contain          explicit representations that  the writers  feared "reprisal"  or          "retribution"  (e.g.,  loss of  employment)  in  the event  their                          ____          statements were disclosed.   See id. (court ought not  dismiss as                                       ___ ___          "a  flight  of   fancy"  an  expressed  fear  of  retaliation  in          unsolicited letter).  Given the core function  of Exemption 7(D),          we believe that the flow of unsolicited information should not be          jeopardized  by risking  exposure  of the  identities of  sources          through   disclosure   of  the   contents   of   their  anonymous          communications.   We  therefore conclude  that  all  twenty-eight          confidential  source  statements  are  protected  from  compelled          disclosure by Exemption 7(D).   The three remaining source state-          ments,  however, are  not "confidential,"  and therefore  are not          protected from compelled disclosure under Exemption 7(D).16                                        ____________________               16As the Army concedes, the statements provided by the three          remaining sources,  who expressly  waived the IG's  assurances of          confidentiality, would  in all  likelihood not be  protected from          disclosure under Exemption 7(D).  Exemption  7(D) itself does not          indicate  what  effect  a   witness's  waiver  of  assurances  of          confidentiality  might have on  the agency's power  to shield the          statement from FOIA disclosure.   Nevertheless, since uncertainty                                          32          C.  Exemption 7(C)          C.  Exemption 7(C)              ______________                    The three "nonconfidential"  source statements  (Vaughn          Index   A4) include explicit  references to the names of  the two          senior RING  officers.   The district  court did  not distinguish          between    substantiated    allegations    and    unsubstantiated          allegations,  but ordered  disclosure  of the  names  of the  two          senior  RING  officers  because  (1)  as   "high-ranking"  agency          officials  with substantial  supervisory authority,  the officers          enjoyed  a diminished  privacy interest,  (2) the  allegations of          criminal conduct  implicated their  official duties, which  would          "shed light" on  RING performance,  and (3) there  is a  counter-          vailing public  interest in monitoring RING  performance, both as          concerns  the conduct of the target officers and the adequacy and          comprehensiveness of the IG's internal investigation.  Providence                                                                 __________          Journal, 718 F. Supp. at  882-84.  The Army counters that  it may          _______          withhold  these  officers' names  under  Exemption 7(C),17  which                                        ____________________          about   the  precise  scope  of  a  waiver  might  "dry  up"  law          enforcement  sources, we  consistently  have refused  to find  an          implied waiver where  the subjective intent  of the informant  to          _______          relinquish confidentiality  can be  inferred only  from ambiguous          conduct, often  occurring long  after the informant  provided the          confidential information.  See Irons I, 811 F.2d at 686; see also                                     ___ _______                   ___ ____          Parker  v. Department of Justice, 934 F.2d 375, 380-81 (D.C. Cir.          ______     _____________________          1991).  Although we need not resolve the question, recognition of          an express waiver would not appear to pose any comparable risk of             _______          chilling "the flow of information to the law enforcement agency,"          Irons II, 880 F.2d at  1449, since a source with sole  control of          ________                                         ____          the agency's right  to disseminate the  information would not  be          reluctant to provide the information.               17We need not decide whether the  four junior RING officers'          names are  protected from disclosure  under Exemption 7(C).   The          four anonymous letters, which are exempt from disclosure in their          entirety under Exemption  7(D), were the only sources of informa-                                          33          protects   from  compelled  disclosure  "records  or  information          compiled for  law enforcement  purposes, but  only to  the extent                                                             __  ___ ______          that  the[ir] production  . . . could  reasonably be  expected to          constitute   an  unwarranted   invasion  of   personal  privacy."                           ___________   ________          (Emphasis added.)18                    The  Army  did not  appeal  the  district court  ruling          compelling disclosure  of the three nonconfidential source state-          ments relating to the  substantiated allegations, perhaps because                                 _____________          the Army understood  that "all or  much of this  material may  be                                         __  ____          independently protected  by exemptions  5  or 7(D)."   Brief  for          Appellant  at 20 n.16 (emphasis  added).  As  neither Exemption 5          nor Exemption 7(D) is availing, however, the Army  must disclose,          in their  entirety, the  statements of the  three nonconfidential          __ _____  ________          sources  which  relate  to   substantiated  allegations.19     We                                        ____________________          tion about these officers.   Furthermore, the allegations against          these  four officers  were not  referred to  the IG's  Office for          investigation, and form no part of the IG report.               18Exemption  6, the alternative "privacy" exemption asserted          by the  Army, protects "personnel  and medical files  and similar                                                                    _______          files  the  disclosure  of   which  would  constitute  a  clearly          _____                               _____  __________     _______          unwarranted  invasion of  personal  privacy."   (Emphasis added.)          Exemption  6  affords  the   Army  far  less  protection  against                                                  ____          compelled  disclosure  than does  Exemption  7(C).   Exemption  6          requires  proof  that the  requested  documents  come within  the          narrow  definition  of  "similar  files," that  the  invasion  of          privacy would be "clearly unwarranted," and that disclosure would                            _______          in  fact constitute an invasion of privacy.  Reporters Comm., 489          __  ____                                     _______________          U.S. at 756; Nadler v. Department of Justice, 955 F.2d 1479, 1488                       ______    _____________________          (11th   Cir.  1992)  (phrase   "reasonably  expected"  represents          relaxation of standard from  "would constitute," making it easier          for agency to invoke Exemption 7(C) than Exemption 6).  For these          reasons, we confine our discussion to Exemption 7(C).               19Even  if the  Army had  pursued this  line of  argument on          appeal, it is unlikely that the scope of FOIA protection would be          broadened.  To  the extent that the RING officers lacked a suffi-                                          34          confine the  remainder of  our discussion to  the nonconfidential          source  statements relating to  the "unsubstantiated" allegations                                               _______________          against the two senior RING officers.                    Under our Exemption 7(C) precedents, in order to deter-          mine whether disclosure might reasonably  be expected to work  an          "unwarranted"  invasion  of  privacy  the court  is  required  to          balance  the  privacy interests  of the  targets of  the criminal          _______          investigation against  any public  interest in the  disclosure of          their  identities.  See New England Apple Council v. Donovan, 725                              ___ _________________________    _______          F.2d 139, 143 (1st Cir. 1984); Sands v. Murphy, 633 F.2d 968, 971                                         _____    ______          (1st Cir. 1980).                    A private  individual who becomes  the target of  a law          enforcement  agency investigation,  and  whose  alleged  criminal          conduct  in  no  way  reflects on  the  law  enforcement agency's                                                  ___  ___________ ________          performance, has  a significant interest in  preventing premature          ___________          public disclosure of  his or her  identity under Exemption  7(C).          See Reporters Comm., 489 U.S. at 765, 773 (information concerning          ___ _______________          private citizens "reveals little or nothing about an agency's own          conduct"); Nadler  v. Department of Justice, 955  F.2d 1479, 1490                     ______     _____________________          (11th Cir. 1992) ("Enabling the public to learn about the conduct          of private citizens is not the  type of public interest the  FOIA          was intended to serve."); Hopkins, 929 F.2d at 88 (same).  On the                                    _______          other  hand,  a  federal  government  employee  investigated  for                                        ____________________          cient   privacy  interest  in   witness  statements  relating  to          unsubstantiated allegations, their  privacy interest would surely          _______________          diminish as  to substantiated  charges in which  there presumably          would be a heightened public interest.                                          35          criminal  misfeasance relating  to  the  performance of  official          duties generally  possesses a  diminished privacy interest.   See                                                                        ___          Stern  v. FBI, 737  F.2d 84, 92 (D.C.  Cir. 1984) (high-level FBI          _____     ___          official).   It  is  equally clear,  however,  that  an  internal          criminal   investigation  would   not  invariably   trigger  FOIA          disclosure of the identity of the targeted government employee:                    'One  who serves  his  state or  nation as  a                    career public servant is not thereby stripped                    of  every vestige  of personal  privacy, even                    with respect to the discharge of his official                    duties.    Public identification  . . . could                    conceivably  subject  them to  harassment and                    annoyance  in the  conduct of  their official                    duties and in their private lives.'          New England Apple, 725  F.2d at 142 (citation omitted);  see also          _________________                                        ___ ____          Fund  for Constitutional  Gov't  v. National  Archives &  Records          _______________________________     _____________________________          Serv., 656 F.2d  856, 864 (D.C.  Cir. 1981).  Therefore,  we must          _____          determine   appropriate  guidelines  for   weighing  the  privacy          interest  remaining to  these  RING officers  against the  public          interest in the disclosure of their identities.                    Public   identification   of   the   "targets   of  law          enforcement  investigations  can   subject  those  identified  to          embarrassment  and potentially  more serious  reputational harm."          Safecard, 926 F.2d at 1205 (citations omitted).  In virtually all          ________          cases,  however,  disclosure of  the  information  adduced in  an          agency investigation  serves the public interest at  least to the          extent that it  sheds light  on the agency's  performance of  its          official duties.   Cf. Rose,  425 U.S. at  367-69 (noting  public                             ___ ____          interest in administration of  internal discipline as it reflects                                          36          on military  preparedness); see also New England  Apple, 725 F.2d                                      ___ ____ __________________          at  144 ("The  public  has a  significant,  enduring interest  in          remaining informed about actions taken by public officials in the          course of their official  duties.").  The higher the  rank of the          public  official  alleged  to  have engaged  in  misconduct,  the          greater the legitimate public interest in disclosure is likely to          be.  Stern,  737 F.2d at 92, 94;  see also Hale v.  Department of               _____                        ___ ____ ____     _____________          Justice,  ____ F.2d  ___, ___  (10th Cir.  1992) [1992  U.S. App.          _______          LEXIS 20485,  at *17 n.8 (10th Cir.  Aug. 31, 1992)] (noting that          governmental  misconduct  by  "high  ranking  officers"  may  tip          balance in favor of civil or public interest).                    In  the  case  of  a  low  ranking  agency official  or          employee,  a rebuttable  presumption may arise  against compelled          disclosure  of  allegations  of   misconduct  which  the   agency          investigation determines to have  been "unsubstantiated," but the          case becomes more complicated if the target is an agency official          of  greater authority or importance.  In particular, there may be          a greater public  interest in disclosure where  the allegation             although  determined   unsubstantiated  by  the   agency      may          nevertheless be true, and may pose a serious threat to the public          interest.   Or an "unsubstantiated"  allegation may  bear upon  a          claim, supported by independent  evidence, that the investigating          agency  actively  engaged  in   the  concealment  of  the  target          official's misconduct or otherwise failed to perform its mission.          These  considerations lend  themselves to  no mechanical  rule of          disclosure  or non-disclosure.   Nor,  on the  other side  of the                                          37          Exemption 7(C) equation, can we prescribe a formula for measuring          the  impact of  the privacy  invasion resulting  from disclosure.          These and other relevant variables must be determined and weighed          in light of the particular circumstances in each case.                    With these  general considerations in mind,  we turn to          the particular  facts  before  us.   It  is  true,  as  the  Army          suggests, that the Journal neither alleged nor attempted to prove          a cover-up in the IG's investigation.  At the same time, we think          the invasion of  privacy wrought  by disclosure in  this case  is          unusually slight.   The Army already has disclosed one of the two          unsubstantiated  allegations and the  other is minimally invasive          of  privacy, containing as it does a rather blurred suggestion of          possible impropriety.  The unsubstantiated allegations are not of          such an  intimate  nature that  the  disclosure of  the  target's          identity  normally   would  be  "unwarranted"  even   though  the          information might tangentially implicate the target's performance          of  official   duties,  or   the  zeal  or   competence  of   the          investigators.   See, e.g., New  England Apple, 725  F.2d at 143;                           ___  ____  __________________          see also  Hunt v. FBI, ___ F.2d ___, ___ (9th Cir. 1992) [No. 91-          ___ ____  ____    ___          15613, slip op. at 4-5  (9th Cir. Aug. 6, 1992)].  Under  all the          circumstances, and  eschewing the per  se rules  proposed by  the          parties, on balance we believe the Exemption 7(C) analysis favors          disclosure.                                         III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                                          38                    The Army voluntarily disclosed redacted versions of the          statements of  its nonconfidential  sources, redacting  more than          the officers' names in some instances.  See Vaughn Index A, p.11,                                                  ___            8.  The Army shall be required to release an unredacted version          of  the source  statements appearing  in the  IG Report  at p. 8,            17; p. 11,    8; p. 14,   10; p. 15,   3; and  p. 17,   5.  The          Army nonetheless may redact any reference  to persons (other than          the two senior  RING officers) who acted as  confidential sources          and  are  identified  as   such  in  any  nonconfidential  source          statement.  See, e.g., Vaughn Index A, p. 11,   8.                      ___  ____                    The  district court judgment  is modified in accordance                    _______________________________________________________          herewith, and affirmed as modified; no costs.          ____________________________________________                                          39
