first main file, the 213 pages from the second main file, and the cross reference file consisting of two pages.
These two exemptions are clearly broad enough to encompass the various names deleted from the released material. In the instant case, the files are obviously investigation files compiled for law enforcement purposes within the meaning of the FOIA. The (b)(7)(C) exemption is designed to ensure that persons providing incriminating evidence to a law enforcement officer will not later be placed in a position of peril by the release of such information to a defendant. For this reason the exemption has been interpreted as not only covering the names of persons interviewed by the F.B.I. in the course of a criminal investigation but also any statements or facts that might reasonably lead to the ascertainment of the person's identity. Shaver v. Bell, 433 F. Supp. 438, 440 (N.D.Ga.1977). The (b)(7)(D) is more directly concerned with protecting information that has been procured under either an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred. See, Church of Scientology v. U. S. Dept. of Justice, 410 F. Supp. 1297, 1303 (C.D.Cal.1976); Nix v. United States, 572 F.2d 998 (4th Cir. 1978). In short, all of the deletions ordered by the F.B.I. in the released material were permissible under these two exemptions.
B. FORTY-EIGHT PAGES WITHHELD FROM THE SECOND MAIN INVESTIGATION FILE
As noted previously 213 of 261 pages of a second main file on the Plaintiff were furnished to him. In the affidavit of James Edward King he states that "twelve pages from this file were referred to the appropriate officers in the Department of Justice for direct response to Plaintiff. Ten pages from this file were withheld in their entirety pursuant to (b)(7)(C) and (b)(7)(D) to protect the privacy of persons interviewed in the course of this investigation."
No other explanation for the withholding is provided even though the Defendant has the burden of showing the materials are exempt. Before further documentation is provided, the determination on the correctness of the withholding of these materials cannot be made.
While an in camera inspection of the documents would provide this Court with the necessary materials for it to make its assessment, the lack of factual dispute to the withheld documents makes it unnecessary in this case. Where a factual dispute does exist to the nature of the statement sought, then an in camera inspection would no doubt be required. Harrop v. Western Airlines, Inc., 550 F.2d 1143 (9th Cir. 1977); See, United States v. Laing, 538 F.2d 83 (3rd Cir. 1976). Here it appears that the de novo review could be properly made if the Defendants would supply the Court with an index of the forty-eight pages and a detailed factual explanation of the nature of the documents. The court then could rely on such affidavits and avoid the necessity of an in camera proceeding which ought to be sparingly used. See, Klaus v. Blake, 428 F. Supp. 37, 39 (D.D.C.1976). Without these essential facts, however, the Court cannot properly perform its function of reviewing as required by the Act. See, e.g., Bristol-Myers Co. v. Federal Trade Commissioners, 138 U.S.App.D.C. 22, 424 F.2d 935 (1970); Wellford v. Hardin, 315 F. Supp. 768 (D.D.C.1970).
C. FILE ON THIRD PARTY
The F.B.I. also withheld a file that primarily concerned a third party and only referred to the Plaintiff indirectly. Since the subject matter of the file does not pertain specifically to the Plaintiff the information contained therein was correctly withheld as exempt from disclosure pursuant to exemption (b)(7)(C) (as unwarranted invasion of the personal privacy of third parties). Subsection (b)(7)(C) protects not only persons who furnish information to law enforcement personnel, but also anyone whose privacy might be invaded by the release of information. Here it is evident that the privacy interests of the third party outweigh the interest of the Plaintiff in securing the file.
In summary, the official action of the F.B.I. in withholding the documents as discussed was proper, except to the forty-eight pages that have not been adequately described.
V ATTORNEY'S FEES
Plaintiff has included a prayer for "such cost and disbursement as are in conformity with 5 U.S.C. 552(a)(4)(E)". This will be denied.
A determination as to the applicability of the offered exemptions to the materials described as three pages of memoranda to prison officials and the forty-eight pages of the F.B.I. file will be deferred pending submission by the Defendants of affidavits which establish the basis for their conclusions. Otherwise the withholding of documents by the Federal Bureau of Prisons and the F.B.I. was proper and an order will be entered granting the Defendants' motion for summary judgment to these matters. The Defendants will be given thirty days to submit sworn affidavits and any other necessary material setting forth in detail the basis for their claims that the exemptions of the Act justify the withholding of the documents.
An appropriate order will be entered.