Department of Justice v. Landano, 508 U.S. 165, 9 (1993)

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Cite as: 508 U. S. 165 (1993)

Opinion of the Court

B

Landano argues that the FBI's sources in the Snow investigation could not have had a reasonable expectation of confidentiality because the Bureau might have been obliged to disclose the sources' names or the information they provided under Brady, the Jencks Act, 18 U. S. C. § 3500, or federal discovery rules, see Fed. Rules Crim. Proc. 16, 26.2. He also points out that some FBI witnesses invariably will be called to testify publicly at trial. Landano apparently takes the position that a source is "confidential" for purposes of Exemption 7(D) only if the source can be assured, explicitly or implicitly, that the source's cooperation with the Bureau will be disclosed to no one. We agree with the Court of Appeals that this cannot have been Congress' intent.

FOIA does not define the word "confidential." In common usage, confidentiality is not limited to complete anonymity or secrecy. A statement can be made "in confidence" even if the speaker knows the communication will be shared with limited others, as long as the speaker expects that the information will not be published indiscriminately. See Webster's Third New International Dictionary 476 (1986) (defining confidential to mean "communicated, conveyed, [or] acted on . . . in confidence: known only to a limited few: not publicly disseminated"). A promise of complete secrecy would mean that the FBI agent receiving the source's information could not share it even with other FBI personnel. See Dow Jones & Co. v. Department of Justice, 286 U. S. App. D. C. 349, 357, 917 F. 2d 571, 579 (1990) (Silberman, J., concurring in denial of rehearing en banc). Such information, of course, would be of little use to the Bureau.

We assume that Congress was aware of the Government's disclosure obligations under Brady and applicable procedural rules when it adopted Exemption 7(D). Congress also must have realized that some FBI witnesses would testify at trial. We need not reach the question whether a confidential source's public testimony "waives" the FBI's right to with-

173

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