Department of Justice v. Landano, 508 U.S. 165, 11 (1993)

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

Opinion of the Court

for their use. See, e. g., ibid. But we are not persuaded that the presumption for which the Government argues in this case is warranted.

Although the Government sometimes describes its approach as "categorical," see, e. g., Superneau Declaration, App. 33-41, the proposed rule is not so much categorical as universal, at least with respect to FBI sources. The Government would have us presume that virtually every source is confidential: the paid informant who infiltrates an underworld organization; the eyewitness to a violent crime; the telephone company that releases phone records; the state agency that furnishes an address. The only "sources" that the Government is willing to state are not presumptively confidential (though they may be exempt from disclosure under other FOIA provisions) are newspaper clippings, wiretaps, and witnesses who speak to an undercover agent and therefore do not realize they are communicating with the FBI. Although we recognize that confidentiality often will be important to the FBI's investigative efforts, we cannot say that the Government's sweeping presumption comports with "common sense and probability." Basic Inc., supra, at 246.

The FBI collects information from a variety of individual and institutional sources during the course of a criminal investigation. See, e. g., Superneau Declaration, App. 35-41. The Bureau's investigations also cover a wide range of criminal matters. See 28 U. S. C. § 533 (FBI authorized to investigate "crimes against the United States" and to conduct other investigations "regarding official matters under the control of the Department of Justice and the Department of State"); § 540 (FBI authorized to investigate certain felonious killings of state and local law enforcement officers). In this case, the Bureau participated in the investigation of a state crime in part because of the need for interstate "unlawful flight" warrants to apprehend certain suspects. Brief for Petitioners 2, n. 1. The types of information the Bureau

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