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Brant Constr. Co. v. EPA

ELR Citation: 16 ELR 20169
Nos. No. 84-2378, 778 F.2d 1258/23 ERC 1777/(7th Cir., 12/05/1985)

The court holds that the Freedom of Information Act (FOIA) exemption 7(D) permits the Environmental Protection Agency (EPA) to withhold copies of unsolicited letters alleging criminal wrongdoing in connection with construction of an EPA-funded sewage treatment plant. The court notes that although FOIA prescribes a policy of broad disclosure, Congress did not wish to mandate disclosures that would unduly hamper law enforcement. Any information obtained from a confidential source in the course of a criminal investigation is absolutely immune from FOIA disclosure under 7(D). EPA, however, bears the burden of proving that the information was offered under an express or reasonably implied assurance of confidentiality. Assurance of confidentiality may be implied from public statements of the agency, the practice of the agency, or the circumstances of the case. Where the communication would probably not have been made if confidentiality was not assured and where the agency treated the information as confidential, a court may find implicit assurance of confidentiality. These circumstances occurred in the instant case, where the author of the allegations was a subcontractor to the alleged wrongdoer. That the author also sent copies of the allegations to state and local agencies monitoring the project does not weaken the finding of confidentiality. Also, it is not necessary that EPA itself be a criminal law enforcement authority to claim the exemption, so long as the records were compiled to aid criminal law enforcement.

Counsel for Plaintiff-Appellee
Steven Maish
2001 N. Cline Ave., Griffith IN 46319
(219) 838-3830

Counsel for Defendants-Appellants
Andrew Baker Jr., Ass't U.S. Attorney
312 Federal Bldg., 507 State St., Hammond IN 46320
(219) 937-5217

Margaret Clark
Land and Natural resources Division
Department of Justice, Washington DC 20530
(202) 633-5431

Before ESCHBACH and FLAUM, Circuit Judges, and DOYLE, Senior District Judge.*