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September 21, 1994

Vincent James Landano, Plaintiff,
United States Department of Justice and the Federal Bureau of Investigation, Defendants.

The opinion of the court was delivered by: H. LEE SAROKIN

 Before the court are defendants' motion for summary judgment and plaintiff's cross-motions for summary judgment and an award of attorney fees and costs.

 Background and Procedural History

 Plaintiff Vincent Landano ["Landano"] was convicted in New Jersey state court for the 1976 murder of John Snow, a New Jersey police officer, in the course of a robbery in Kearny, New Jersey. At trial, the evidence showed that Victor Forni and a motorcycle gang, "the Breed," orchestrated the robbery. Landano, U.S. , 113 S. Ct. 2014, 2017 (1993). *fn1" Although not a Breed member, Landano was implicated as a recruit for the crime.

 Plaintiff has consistently maintained his innocence of the charges. To support his claim in later state proceedings that the prosecutor had withheld material, exculpatory evidence in violation of Brady v. Maryland, Landano filed a request in September 1988 with the FBI under the Freedom of Information Act ["FOIA"] for all information it had compiled regarding the murder of Snow. See Brady, 373 U.S. 83 (1963).

 In May 1990, the FBI released documents, some of which contained redactions, and withheld other documents in their entirety. The government withheld this material on the basis of FOIA Exemption 2, protecting against disclosure of internal agency practices; Exemptions 6 and 7(C), protecting against unwarranted invasions of personal privacy; and Exemption 7(D), *fn2" protecting confidential sources of law enforcement information. *fn3" 5 U.S.C. ยง 552(b)(2), (b)(6), and (b)(7)(C,D).

 After exhausting his remedies within the Department of Justice, *fn4" plaintiff initiated this action in May 1990 seeking disclosure of the requested files in their entirety. *fn5" The FBI claimed Exemption 7(D) for information from five types of sources: "regular FBI informants; individual witnesses who were not regular informants; state and local law enforcement agencies; other local agencies; and private financial or commercial institutions." Landano, 113 S. Ct. at 2018 (citation omitted).

 With regard to Exemption 7(D), this court held that the FBI's categorical explanations sufficed for confidential informants and undercover personnel, but as to all other withheld information, the court required specific reasons for each non-disclosure. 751 F. Supp. 502, 508 (D.N.J. 1990), clarified on recon., 758 F. Supp. 1021 (D.N.J. 1991). On appeal, the Third Circuit affirmed in relevant part and held that the government had either to prove the source received express assurance of confidentiality or provide "'detailed explanations relating to each alleged confidential source'" to support an inference of confidentiality. 956 F.2d 422, 435 (3d Cir. 1992) (quoting Lame v. United States, 654 F.2d 917, 928 (3d Cir. 1981)).

 The Supreme Court granted certiorari to address the nature of the FBI's evidentiary burden under Exemption 7(D). As discussed below, the Supreme Court set forth new guidelines for analyzing the government's assertions of inferred confidentiality and suggested some potentially relevant factors for consideration. Because the Third Circuit had decided that it lacked the discretion to rely on such factors, the Supreme Court vacated the judgment of the Third Circuit and remanded the matter back to that court for further proceedings consistent with its opinion. The Third Circuit then remanded the matter to this court for consideration of the remaining issues under Exemption 7(D).


 This court can only grant summary judgment if there are no issues of material fact and, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Wisniewski v. Johns-Manville, 812 F.2d 81, 84 (3d Cir. 1987). There are no factual issues in dispute. The court is called upon to apply the Supreme Court's approach in Landano to the government's remaining Exemption 7(D) claims.

 I. Plaintiff's Exemption 7(D) Claim

 The Supreme Court's Opinion

 The Supreme Court rejected the concept that the government is entitled to a presumption that the source is confidential whenever the source provides information to the FBI in the course of a criminal investigation. Rather, the Court suggested that there are narrowly defined circumstances which can provide a basis for inferring confidentiality in the absence of an express agreement. 113 S. Ct. at 2023. The Court identified the "character of the crime at issue" and "the source's relation to the crime" as two relevant factors in this analysis but did not restrict analysis to these factors. *fn6"

 The burden is cast upon the government to demonstrate that the information was provided on an implied assurance of confidentiality. The Supreme Court decision, however, suggests that even where the government presents such narrowly defined circumstances, the party requesting the information has the opportunity to rebut the presumption. The Court specifically stated that once the government established the factors which it claims gave rise to the inference of confidentiality, "armed with this information, the requester will have a more realistic opportunity to develop an argument that the circumstances do not support an inference of confidentiality." Id. at 2024.

 The Parties' Contentions

 The FBI now limits its claims of Exemption 7(D) to information from and identities of eyewitnesses, sources with dealings with the Breed, individuals with information about the murder suspects' whereabouts, and state and local law enforcement agencies. The government proffers the following factors as giving rise to the inference of confidentiality:

1. the particularly violent nature of the crime: the "cold-blooded murder of a police officer in the course of an armed robbery"; *fn7"
2. the possible involvement of a motorcycle gang; *fn8"
3. the broad publicization in the community of the events concerning the murder and the possible gang connection; ...

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