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ORTIZ v. HHS

January 9, 1995

BERNICE ORTIZ, Plaintiff(s), against DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant(s).


The opinion of the court was delivered by: JOHN E. SPRIZZO

 SPRIZZO, D.J.,

 Plaintiff brings this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (1988), to obtain an anonymous letter (the "letter") to the Social Security Administration containing allegations about the plaintiff. Defendant, the Department of Health and Human Services ("HHS" or the "Government"), withheld the letter from release on the grounds that disclosure of the letter would reasonably be expected to invade the privacy of the author and that the author is a confidential source of information for law enforcement purposes. The parties have stipulated to the admissibility of certain exhibits for judgment on an undisputed set of facts. See Stipulation to Admissibility of Exhibits dated February 18, 1994. For the reasons that follow, the Court finds that the letter is exempt from disclosure.

 BACKGROUND

 By letter dated November 14, 1989, plaintiff requested a copy of an anonymous letter sent to the HHS Regional Inspector General for Investigations in New York. See Complaint, Ex. A; Declaration of A. Ronald Santo dated February 22, 1993 ("Santo Decl.") P 3. The letter makes allegations of improper conduct by plaintiff. See Santo Decl. P 4. Plaintiff claims that those allegations led to a criminal investigation of her age and identity in connection with her receipt of Social Security benefits. See Complaint, Ex. A. Ultimately, however, plaintiff was never prosecuted. See Joint Exhibit 2, Declaration of Frank J. Nahlik dated December 7, 1993 ("Nahlik Decl."), P 6. In her request, plaintiff stated:

 
"I request a copy of this letter because I have reason to believe that the information contained in it was procured illegally and that the allegations made in it are false, libelous and slanderous. I intend to take legal action against the parties responsible."

 See Complaint, Ex. A.

 The letter in question was located within the files of the Office of Inspector General for Investigations. See Santo Decl. P 4. The agency withheld the letter by a decision dated March 19, 1990. See Complaint, Ex. B. By letter dated April 9, 1991, plaintiff appealed the decision. See Complaint, Ex. C. On April 23, 1991, the agency affirmed its decision to withhold the letter in order to protect the author's privacy and because the author was a confidential source. See Complaint, Ex. D. This action followed.

 DISCUSSION

 After the Court denied the parties' cross-motions for summary judgment, the Government submitted the anonymous letter for the Court's in camera review so that the District Court could make a de novo determination of 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, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989). HHS claims that the anonymous letter is exempt under 5 U.S.C.A. §§ 552(b)(6), (b)(7)(C) and (b)(7)(D) (West 1972 & Supp. 1994).

 Exemption 7(D) permits nondisclosure of "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to disclose the identity of a confidential source . . . ." 5 U.S.C.A. § 552(b)(7)(D) (West Supp. 1994). This exemption applies to the investigative files of HHS's Office of the Inspector General, in which this letter was located, see Santo Decl. P 4, because that agency undertakes investigations that could lead to criminal prosecutions. See New England Apple Council v. Donovan, 725 F.2d 139, 143 (1st Cir. 1984) ("The functions of OIG ["Inspector General"] investigators are not so different from the functions of FBI agents as to warrant divergent treatment under FOIA exemption 7 . . . .").

 Under Exemption 7(D), the critical inquiry is "not whether the requested document is of the type that the agency usually treats as confidential, but whether the particular source spoke with an understanding that the communication would remain confidential." United States Dep't of Justice v. Landano, U.S. , , 113 S. Ct. 2014, 2019 (1993). A source is confidential if it "provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred." Id. (quoting S. Rep. No. 93-1200, at 13 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6291). Since the anonymous letter at issue here was not solicited by the Government, and therefore the Government cannot claim that it provided the author with an express assurance of confidentiality, the question before the Court is whether the circumstances under which the anonymous source conveyed the information in the letter support a reasonable inference of an assurance of confidentiality.

 In Landano, the Supreme Court considered the evidentiary showing that the government must make in order to establish that a source provided information based on an implied assurance of confidentiality. The Supreme Court rejected the argument that there is a presumption that all sources supplying information to law enforcement in the course of a criminal investigation are confidential. However, the Court held that more narrowly-defined circumstances can provide a basis for inferring an implied assurance of confidentiality. Id. at 2023. For example, the Court observed that nondisclosure could be justified by examining "the nature of the crime that was investigated or the source's relation to it." Id. at 2024. Particular circumstances that could give rise to an inference of confidentiality also include "the risks an informant might face were [his or her] identity disclosed, such as retaliation, reprisal or harassment." Massey v. FBI, 3 F.3d 620, 623 (2d Cir. 1993).

 Here, the government has provided a particularized showing of circumstances from which confidentiality can reasonably be inferred. The allegations could have lead to criminal proceedings, see Nahlik Decl. P 10(a), and indeed did create the impetus for a criminal investigation, see Nahlik Decl. PP 6, 10(a) and (b), and strongly suggest that the anonymous source reasonably expected complete confidentiality. See Providence Journal Co. v. U.S. Dep't of Army, 981 F.2d 552, 565-66 (1st Cir. 1992) ("At least in circumstances where the allegations might lead to ...


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