That is to say, it was "furnished by a confidential source" (though long ago). The words "furnished by a confidential source" do not mean that the information or the identity of the source is secret; they simply mean that the information was "provided in confidence" at the time it was communicated to the FBI. Shaw v. F.B.I., 749 F.2d 58, 61 (D.C. Cir. 1984); L C Marine Transport, Ltd. v. United States, 740 F.2d 919, 925 n. 8 (11th Cir. 1984); Radowich v. United States Attorney, District of Maryland, 658 F.2d 957, 959 (4th Cir. 1981); Keeney v. F.B.I., 630 F.2d 114, 117, 119 n. 2 (2d Cir. 1980). Fourth, we are not considering the FBI's refusal to make available information restating what the sources in fact revealed at the Smith Act trials.

But the clause does protect any statement of the informant which gives a clue to his identity and this protection is not lost if the identity of the informant became known." Radowich v. U.S. Atty., Dist. of Maryland, 658 F.2d 957, 960 n. 10 (4th Cir. 1981). In determining whether material is exempt under the first clause, the content will determine whether revelation of the data would disclose the identity of a confidential source. If it would, the information is exempt.

FOIA exemptions are to be narrowly construed in accordance with the legislative purpose of Congress that disclosure rather than secrecy is the dominant objective of the Act.Department of the Air Force v. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 1598-99, 48 L.Ed.2d 11 (1976), cited in Radowich v. United States Attorney, 658 F.2d 957, 965 (4th Cir. 1981). The burden of establishing an exemption, furthermore, is upon the Secretary. Kiraly, 728 F.2d at 276.

Conf.Rep. No. 93-1380, 93rd Cong., 2nd Sess. 13 (1974). Radowich v. United States Attorney, District of Maryland, 658 F.2d 957, 959-60 (4th Cir. 1981); Lame v. Dept. of Justice, 654 F.2d 917, 923 (3d Cir. 1981); T.V. Tower v. Marshall, 444 F. Supp. 1233, 1235 (D.D.C. 1978); Borton v. OSHA, 566 F. Supp. 1420, 1421-22 (E.D.La. 1983). Because the court found that the employee-witnesses could be matched to their statements, it never assessed the government's bearing of its burden.

Otherwise law enforcement agencies would be faced with a "drying up of their sources", severely crippling their investigative ability. Radowich v. U.S. Attorney, District of Maryland, 658 F.2d 957, 960-964 (4th Cir. 1981). Exemption 7(D) recognizes that the identity of a source may be determined from an analysis of the information provided by the source, especially when the analysis is made by plaintiff, the subject of the investigation, who is intimately familiar with the facts and circumstances surrounding the investigation.

The courts have thus recognized the need to provide a "robust" 7(D) exemption to ensure that agencies are not unduly hampered in their investigations and that their confidential sources are not lost because of retaliation against the sources for past disclosure or because of the sources' fear of future disclosure. For a discussion of the legislative history, see Radowich v. United States Attorney, 658 F.2d 957 (4th Cir. 1981).See Johnson v. United States Department of Justice, 739 F.2d 1514, 1518 (10th Cir. 1984) ("[A]bsent a robust 7(D) exemption, law enforcement agencies would be faced with a `drying up' of their sources of information and their investigative work thereby would be seriously impeded."); Miller v. Bell, 661 F.2d 623, 626-28 (7th Cir. 1981), cert. denied, 456 U.S. 960, 102 S.Ct. 2035, 72 L.Ed.2d 484 (1982); Lesar v. United States Department of Justice, 636 F.2d 472, 490 n. 108 (D.C. Cir. 1980); Scherer v. Kelley, 584 F.2d 170, 176 (7th Cir. 1978), cert. denied, 440 U.S. 964, 99 S.Ct. 1511, 59 L.Ed.2d 778 (1979).

They have voluntarily surrendered any interests protected under Exemptions 7(C) and 7(D), and, therefore, unless otherwise exempt, ATF must release all such information it withholds since the persons who are protected by these exemptions have waived their rights to privacy and confidentiality. Diamond v. Federal Bureau of Investigation, 532 F. Supp. 216, 227 (S.D.N.Y. 1981), aff'd 707 F.2d 75, 77 (2d Cir. 1983); Ingle v. Department of Justice, 698 F.2d 259, 269 (6th Cir. 1983); Miller v. Bell, 661 F.2d 623, 627, 628 (7th Cir. 1981) (per curiam), cert. denied, Miller v. Webster, 456 U.S. 960, 102 S.Ct. 2035, 72 L.Ed.2d 484 (1982); Radowich v. United States Attorney, District of Maryland, 658 F.2d 957, 960 (4th Cir. 1981); cf. Sears, Roebuck and Co. v. General Services Administration, 384 F. Supp. 996, 1004 (D.D.C.), aff'd 509 F.2d 527 (D.C. Cir. 1974) (per curiam); Nationwide Mutual Insurance Company v. Friedman, 451 F. Supp. 736, 746 (D.Md. 1978) (Exemption 7 gives private parties no interest of their own in nondisclosure). ATF must also release information provided by organizations that now waive any right in nondisclosure, since the policy of disclosure is no less applicable to an organization that waives its FOIA protections.

5 U.S.C. § 552(a)(4)(B). It is well established that the agency may meet this burden by proving either that "the person provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred". S.R. No. 1200, 93rd Cong., 2nd Sess. 13, reprinted in (1974) U.S. Code Cong. Ad.News 6285, 6291; Radowich v. United States Attorney, District of Maryland, 658 F.2d 957, 959-60 (4th Cir. 1981); Lame v. United States Department of Justice, 654 F.2d 917, 923 (3rd Cir. 1981); Robbins Tire and Rubber Co. v. National Labor Relations Board, 563 F.2d 724, 733 and n. 31 (5th Cir. 1977), reversed on other grounds, 437 U.S. 214, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978); Lloyd and Henniger v. Marshall, 526 F. Supp. 485, 487 (M.D.Fla. 1981); Ramo v. Department of the Navy, 487 F. Supp. 127, 133 (N.D.Cal. 1979); T.V. Tower, Inc. v. Marshall, 444 F. Supp. 1233, 1235 (D.D.C. 1978). Express assurances of confidentiality were given to the employee witnesses here. ( See, R.Doc. 32, pp. 23, 24, 26).

To establish the required confidentiality of a source under Exemption 7(D), see Lesar v. United States Department of Justice, 636 F.2d at 472, it is only necessary to show that the information was given under an express assurance of confidentiality or in circumstances in which such an assurance could reasonably be inferred. Radowich v. United States Attorney, 658 F.2d 957, 960 (4th Cir. 1981) (citing Maroscia v. Levi, 569 F.2d 1000, 1002 (7th Cir. 1977). In this case the Wood and Phillips affidavits state that there is an understanding of confidentiality underlying the FBI's exchange of information with cooperating law enforcement agencies and commercial institutions such as the ones involved here.

We have held that because "[c]onfidential, as used in [E]xemption 7(D), ... is meant to be construed as ‘given in confidence,’ " and not as "secret," Exemption 7(D) protects sources even if a "the plaintiff[ ] [knows] who the [sources] were" based on public sources. L&C Marine , 740 F.2d at 925 n.8 (quoting Radowich v. U.S. Att’y , 658 F.2d 957, 959 (4th Cir. 1981) ); accord Irons v. Fed. Bureau of Investigation , 880 F.2d 1446, 1448 (1st Cir. 1989) (agreeing with L & C Marine that "law enforcement agencies need not disclose information about source identity even though the source’s identity is already publicly known"). We have stressed that after the government proves that a source received an assurance of confidentiality, Exemption 7(D) creates a "per se limitation on disclosure."