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The argument that disclosure will “dry up sources” of information has been subjected to trenchant criticism, 130 and in clinging to the remnants of the "informer's privilege” we nced to bear in mind Mr. Justice Jackson's obscrvation:
The plca that evidence of guilt (for exclusion of immigrants] must bc secrct is abhorrent to frec men, because it provides a cloak for the malcvolcnt, the misinformed, the mcddlesome, and the corrupt to play thc role of informer undetected and uncorrected.410
Even FBI informers have from time to time proven unreliablc;"51 and government reliance on "confidential information" as a basis for administrative action has recently been badly shaken by Grecne v. McElroy."2 Since Greene, liberalizing influence has been making itself felt. So, in a recent case involving a claim of anonymity for employees who complained to the government of their employers, the court said that the purpose of the informer's privilege is “to make retaliation impossible," but that the rule is not automatic and even the desire for protection may be outweighed by the need for information in a given case.443 A further step was taken in Gonzalez v. Frconian:
to vindicate the innocence of the accused or lessen the risk of false testimony or is essential to the proper disposition of the casc, disclosure will be compelled." Wilson v. United States, 59 F.2d 390, 392 (3d Cir. 1932). Roviaro adds that: "The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosurc crroncous must depend on the particular circumstances of cach case, taking into consideration the crime charged, the possible descnses, the possible significance of the informer's testimony, and other relevant factors." 353 U.S. at 62.
130 McKay 151-52.
440 United States er rel. Knauff v. Shaughnessy, 338 U.S. 537, 551 (1950) (disscnting; Black and Frankfurter, JJ., concurred). Again, in United States v. Nugent, 346 U.S. 1, 13 (1953), Justiccs Douglas and Black, dissenting, said that "the use of statements by informers who need not confront the person under investigation or accusation has such an infamous history that it should be rooted out from our procedure."
111 Mr. Justice Frankfurter alluded in his memorandum in Mesarosh v. United States, 352 U.S. 808, 811 (1956), to a "statement by the Government that it 'now bas serious reason to doubt' testimony given in other proceedings by Mazzei, one of its specialists on Communist activities. ..." And he stated in Jay v. Boyd, 351 U.S. 345, 373 (1956) (dissenting opinion), that "we can take judicial notice of the fact that in conspicuous instances, not negligible in number, such 'confidential information' has turned out to be either baseless or false. There is no reason to believe that only these conspicuous instances illustrate thc hazards inherent in taking action affccting the lives of fellow men on the basis of such information. The probabilities are to the contrary.” Professor McKay has furnished citations for still other "indications of unreliability on the part of an appreciable number of regularly employed informants who were apparently regarded by the FBI as 'sources known to be reliable.'" McKay 152. CJ. BARTI 84-90.
112 360 U.S. 474 (1959), discussed infra text accompanying notes 456-69.
113 Wirtz v. Continental Fin. & Loan Co., 326 F.2d 561, 563-64 (5th Cir. 1964). Scc also Wirtz v. Ilooper-Holmcs Burcau, Inc., 327 F.2d 939 (5th Cir. 1964).
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Whcrc no significant security interests would bc jcopardized by
3. Confidential Information
Confidential information may be categorized roughly as that procured by governmental investigation and that turned over on a statutory guarantee of confidential treatment.
(a) Investigation Reports. No investigation reports have been more tenderly regarded than those of the FBI. Yet even FBI reports have been denied judicial shelter,"46 and Ex parte Sackett furnishes the best of reasons. Sackett involved a private suit for damages under the Sherman Act in which it was discovered that the defendant had destroyed certain papers which had been copied by the FBI. The FBI declined to bring forth the papers on the ground that "it was against public policy to produce such documients because they were part of the confidential and official files."'440 The mere transfer of ordinary papers to the FBI, in other words, sanctifies them and puts them beyond the reach of profane hands.447 Disclosure has been ordered of an investigation report by the Alien Property branch of the Department of Justice, 448 of a naval investigation of a collision,"40 of an Air Force Inspector General's report of a collision, 960 and of confidential appraisal reports."61 At the
144 334 F.2d 570, 580 n.21 (D.C. Cir. 1964).
446 Zimmerman v. Puindexler, 74 F. Supp. 933 (D. Ilawaii 1947). llerc thc Army was ready to turn over the files locaring on the plaintili's innprisonment but the Department of Justice objccted to inclusion of FBI reports. Scc also United Slates v. Colton Valley Operators Comm., 9 F.R.D. 719 (W.D, La. 1949), al'd by equally divided Court, 339 U.S. 940 (1950).
1416 74 F.2d 922 (9th Cir. 1935). Thc rclusal to turn over was sustained by virtuc of a regulation promulgated under thc "housckccping" statute, Rev. Stat. & 161 (1875), as amended, 5 U.S.C. § 22 (1958), a result that Congress has since made impossiblc. Scc tcxt accompanying notc 489 infra.
417 C). Icxt accompanying notc 497 infra. With good rcason docs Profcssor Hardin say that "it is appalling for persons in public service to permit burcaucratic routine and a petty proprictary attitude toward 'confidential' files to outweigh elementary considerations of justice.” Hardin 901. 1448 Royal Exchange Assur. v. McGrath, 13 F.R.D. 150 (S.D.N.Y. 1952),
110 Bank Linc, Ltd. v. United States, 76 F. Supp. 801 (S.D.N.Y. 1948). 450 Eastern Air Lines, Inc. v. United States, 110 F. Supp. 491 (D. Del. 1952).
461 United States v. Certain Parcels of Land, 15 F.R.D. 224 (S.D. Cal. 1954). In short: “Investigatory or factual reports not containing state or military secrets ... have not ordinarily, without morc, supported claims of privilcgc." Bocing Airplanc Co. v. Coggcshall, 280 F.2d 654, 660-61 (D.C. Cir. 1960).
A casc which looks the other way is. Machin v. Zuckert, 316 F.2d 336 (D.C. Cir. 1963), a suit by a member of an Air Force bomber crew against a propeller manufacturer for injuries suffered in a crash. Plaintiff sought to obtain the Air Force investigation report which was countercd by the offer of the list of witnesses
higlicul juclicinl level, the Joncks case hele that written reports of l'lll aurativey madlo prior to trial must be produced if they lestiiy. "" All this lowed from the fact that Congress consentel 10 suit and provided for discovery procclurcs or brought a criminal action.
Since no provision comparable to the sccderal discovery rules in the courts obtains in the administrative domain, the agencics havc lcd a sheltered life. Inroads on this scclusion have been made under the Jencks doctrine. 464 And a series of confidential information denials in passport cases, discharges from public employment, exclusion of resident aliens from readmission, and the like,966 has been seriously jeopardized by Greene v. McElroy.460 That case strikingly illustrates the grave hurt that can flow from resort to executive privilege. Greene was vice-president of an engineering firm which had a government contract that was the source of almost all of its
and a summary of the report. The Air Force refusal of the report was based on the alleged nccd for confidential treatment in order to encourage cooperation by wit. nesses. The court ordered disclosure of the "factual findings of the Air Force mechanics who examined the wreckage" and said that more was not required. The Air Forcc urged that "thc investigators encourage frank and full cooperation by mcans of promises that witnesscs' testimony . . . will not be revcaled to persons outside the Air Force .... Technical representatives of the aviation industry concurrently assisting in aircraft investigations could not bc cxpccted to find their company at fault if their reports could be used in actions against their companics." Id. at 339. But "technical representatives" arc unlikely to testify against their company in any cvcnt bccausc thcir testimony might also impel the government to cancel massive contracts or drastically revise them or invoke still other sanctions. The excuse for such concealment is therefore hollow. Nevertheless, the court agreed that "when disclosurc of investigative reports obtained in large part through promises of confidentiality would hampcr thc cfficicnt operation of an important Government program ... the reports should bc considered privilcgcd," cspccially when the government is not a party and has been so "cooperativc." Ibid. Thus the court accepted a barc asscrtion that disclosure would "hamper” efficicnt opcration,
Why should such confidential communications stand on higher ground than thosc made by "informers"? An informer also must be "cncouraged" to inform. The argument that disclosure of an informant's identity will dry up sources of information has been sharply criticized, McKay; and the Supreme Court held in a criminal case · 1.304
that the contents of his communication should be made available in thc interests lof justice. Roviaro v. United States, 353 U.S. 53 (1957). Given a civil casc where
the investigative report, including its confidential elements, is truly material, the intcrcsts of justice should cqually override preservation of the confidence. Sec note 514 infra. As was stated in Bocing Airplanc Co. v. Coggeshall, 280 F.2d 654, 662 (D.C. Cir. 1960), "the fundamental policy of free socicties (is) that justice is usually promoted by disclosure rather than secrecy." See also note 459 infra. Departure from this policy should call for something more substantial than slender grounds on which the government repeatedly opposes disclosure. Compare notes 399 and 400 supra. See also Hardin 881, 884, 887
452 Jencks v. United States, 353 U.S. 657 (1957)..
463 Berger Discovery. C/. Communist Party v. Subversive Activities Control Bd., 254 F.2d 314, 327 (D.C. Cir. 1958).
· 464 NLRB v. Adhesive Prods. Corp., 258 F.2d 403, 408 (2d Cir. 1958); Communist Party v. Subversive Activities Control Bd., 254 F.2d 314, 330 (D.C. Cir. 1958).
466 Sec Carrow 167. + 466 360 U.S. 474 (1959).
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business. The government revoked his security clearance on the basis of umelisoloscel confidential information *7 and the firm was compulled to clischarge him or lose the contract. Circene, who boined received a salary of $18,000 a year, was reduced 10 taking a jolo al $4,000, the only onc hic could find, for the denial of sccurity clcarancc barred him from cniployment in numerous plants all over the United States. Millions of people are employed under defense contracts and the impact of such denials strikes deeply into their economic security. Speaking for the Court, Chief Justice Warren stated:
Certain principlcs have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, thc evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untruc. . . . We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. ... This Court has been zcalous to protect these rights from erosion. It has spoken out not only in criminal cases, ... but also in all types of cases where administrative and regulatory actions were under scrutiny. 168
This pronouncement turns on constitutional considerations. Let us now consider Greene in terms of evidentiary privilege.
Of privilege in general Professor Morgan has said:
467 Groen had been given thrcc sccurity clearances since World War II, id. at 476; hc tcstificd under oath and produced a number of witnesses who testificd as to his good character; no cvidence to the contrary was introduced. Id. at 478-79.
168 Id. at 496-97, Black, Douglas, Brennan and Stewart, JJ., concurred with the Chicf Justice who recognized that there was no need to reach the constitutional issuc. Frankfurter, Harlan and Whitaker, JJ., concurred on the ground there was no showing that either Congress or the President had authorized the procedure. Mr. Justice Clark dissented, saying "one does not have a constitutional right to have access to the Government's military secrets." Id. at 511. And he concluded: "While the Court disclaims deciding this constitutional question, no one reading the opinion will doubt that thc explicit language of its broad sweep spcaks in prophecy." Id. at 524. But Cafeteria Workers v. McElroy, 367 U.S. 886 (1961), may mark a regression (Brennan, J., Warren, C.J., Black and Douglas, JJ., dissenting), justly criticized by Bickel 72-74. Sce also Willner v. Committee on Character & Fitness, 373 U.S. 96 (1963).
100 Foreword to ALI MODEL CODE OF EVIDENCE 5 (1942). In United States v. Bryan, 339 U.S. 323, 331 (1950), quoting from 8 WIGMORE § 2192, at 64, the Court said: “We start with the primary assumption that there is a general duty to give what testimony one is capable of giving, and that any excmptions which may exist are distinctly exceptional, being so many derogations from a positive rule.”
The bencfits of keeping investigative reports secret were summarized by Attorney General Jackson in justifying a withholding from Congress: (1) informers would not reveal if their confidence was not preserved; (2) disclosure might injure innocent individuals because the “reports included leads and suspicions, and sometimes the statements of malicious or misinformed pcople”; (3) disclosure might prejudice law enforcement or at times (4) national defense. 460 Similar explanations have been offered for withholding of confidential information and the identity of informers from those discharged from federal employ in the loyalty and security cases.901
The argument that informers will not talk if their confidence is not preserved received a body blow from Professor McKay's incisive analysis. 462 The objection does not go to the employment of informers but to using their secret charges as an instrument of administrative oppression. No one insists that the government shall reveal either their identity or their confidence until their secret charges are made the basis of an unfair procedure to blast the rights of others.403 It is a reversal of values to be more solicitous of the faceless informer than of the victim who is crushed by his secret charges.904 When Attorney General Jackson donned judicial robes he expressed abhorrence of secret evidence employed to exclude the alien wife of a citizen. And he went on to say that "the menace to the security of this country, be it great as it may, from this girl's admission is as nothing compared to the menace to free institutions inherent in procedures of this pattern."406 Such procedures are reminiscent of the days when Venice lived in terror of anonymous accusations dropped into the Lion's Mouth.“Happily the Supreme Court has progressively cut into the privilege claimed for informers and confidential reports: the Roviaro case declared that the preservation
400 40 OPS. ATT'y Gen. 45 (1941), This was in response to a request for FBI reports by the House Naval Affairs Committee. How much wcight can be assigned to such pronouncements when we Icarn from Scnator McCarran that: "For years as chairman of the Judiciary Committee, I bad the FBI files handed to me...." 99 Cong. Rec. 2156 (March 20, 1953).
461 McKay 148-49. 402 Id, at 146-60.
463 “If the aim is to protect the underground of informers, the FBI report necd not bc uscd. If it is uscd, then fairness requires that thc names of the accusers be disclosed." United States v. Nugent, 346 U.S. 1, 14 (1953). (Douglas and Black, JJ., dissenting.)
464 McKay 150.
406 United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 551 (1950) (dis. senting opinion). This change of attitude, which accompanied the shift from partisan advocate to impartial arbiter, underscorcs the value of such impartial arbitramcnt.
100 Our soil was not thought favorable for a transplantation of that practice. In 1802, Congressman Nicholson rescrred to "Venice, where the vilcst wretch was encouraged as a secret informer, and the lion's mouth was ever gaping for accusation." 11 ANNALS OF CONC. 824 (1802).