EXEMPTION 7(D) OF THE FREEDOM OF INFORMATION ACT--THE EVIDENTIARY SHOWING THE GOVERNMENT MUST MAKE TO ESTABLISH THAT A SOURCE IS CONFIDENTIAL.

FREEDOM of information; CIVIL rights; CENSORSHIP; INFORMATION policy; RIGHT of privacy

This article examines the treatment of the tension between the broad disclosure of the Freedom of Information Act and the broad protection from disclosure of Exemption 7(D) by the U.S. Supreme Court in the case U.S. Department of Justice versus Landano. The Court established two factors in determining whether or not a particular source is presumed confidential, the nature of the crime and the source's relation to the crime. The approach of the Court has a number of benefits. First, it is consistent with the statutory language and with the Court's obligation to construe the exemptions narrowly. Since the information concerning such considerations is generally accessible to the government, the approach should be feasible. The general knowledge of the considerations would afford a requester the meaningful opportunity to contend the determination of confidentiality. There are difficulties in using the considerations of the Court as a standard. It will be difficult for lower courts and government agencies to apply. It is unclear whether both the nature of the crime and the source's relation to it must support an inference of confidentiality. It is also unclear whether either consideration is afforded more weight than the other.