170
Opinion of the Court
The court then addressed the Government's argument that a presumption of confidentiality arises whenever any individual or institutional source supplies information to the Bureau during a criminal investigation. As the Court of Appeals phrased it, the issue was "whether the fact that the source supplied information to the FBI in the course of a criminal investigation is alone sufficient to support an inference that the source probably had a reasonable expectation that no unnecessary disclosure of his or her cooperation would occur." Ibid. The court thought the question "close." Ibid. On one hand, the Bureau tends to investigate significant criminal matters, and the targets of those investigations are likely to resent cooperating witnesses. This is especially so where, as here, the investigation concerns a highly publicized, possibly gang-related police shooting. Id., at 434, and n. 5. On the other hand, the court recognized that "there are undoubtedly many routine FBI interviews in the course of criminal investigations that are unlikely to give rise to similar apprehensions on the part of the interviewee." Id., at 434.
The Court of Appeals recognized that a number of other courts had adopted the Government's position. See, e. g., Nadler v. United States Dept. of Justice, 955 F. 2d 1479, 1484-1487 (CA11 1992); Schmerler v. FBI, 283 U. S. App. D. C. 349, 353, 900 F. 2d 333, 337 (1990); Donovan v. FBI, 806 F. 2d 55, 61 (CA2 1986); Johnson v. United States Dept. of Justice, 739 F. 2d 1514, 1517-1518 (CA10 1984); Ingle v. Department of Justice, 698 F. 2d 259, 269 (CA6 1983); Miller v. Bell, 661 F. 2d 623, 627 (CA7 1981) (per curiam), cert. denied, 456 U. S. 960 (1982). Considering itself bound by its previous decision in Lame v. United States Department of Justice, 654 F. 2d 917 (CA3 1981), however, the Court of Appeals took a different view. It declined to rely either on the Government's proposed presumption or on the particular subject matter of the investigation. Instead, it determined that, to justify withholding information under Exemption
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