546 F.2d 1009 (D.C. Cir. 1976), 76-1004, Phillippi v. C.I.A.

Docket Nº:76-1004.
Citation:546 F.2d 1009
Party Name:Harriet Ann PHILLIPPI, Appellant, v. CENTRAL INTELLIGENCE AGENCY and George H. Bush, Director, Central Intelligence Agency.
Case Date:November 16, 1976
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1009

546 F.2d 1009 (D.C. Cir. 1976)

Harriet Ann PHILLIPPI, Appellant,



Central Intelligence Agency.

No. 76-1004.

United States Court of Appeals, District of Columbia Circuit

November 16, 1976

Argued April 19, 1976.

As Amended Nov. 24, 1976.

Page 1010

Mark H. Lynch, Washington, D. C., with whom Larry P. Ellsworth and Alan B. Morrison, Washington, D. C., were on the brief, for appellant.

David M. Cohen, Atty., Dept. of Justice, Washington, D. C., with whom Rex E. Lee, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellees.

Before WRIGHT and MacKINNON, Circuit Judges, and WEIGEL, [*] District Judge.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

Dissenting opinion filed by Circuit Judge MacKINNON.

J. SKELLY WRIGHT, Circuit Judge:

This is an action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1970), as amended (Supp. V 1975), in which plaintiff-appellant seeks to compel the Central Intelligence Agency to disclose certain records alleged to be in its possession concerning its relationship with the Hughes Glomar Explorer.

In March 1975 several news organizations published stories purporting to describe a secret operation conducted by the United

Page 1011

States. The central figure in these stories was the Hughes Glomar Explorer, a large vessel publicly listed as a research ship owned and operated by the Summa Corporation. According to the stories, the ship's actual owner and operator was the Government of the United States.

Following publication of these stories, other stories described the alleged efforts of the CIA to convince the news media not to make public what they had learned about the Glomar Explorer. The latter stories interested appellant, a journalist, and she filed a FOIA request for all Agency records relating to the reported contacts with the media. 1 That request was denied on two grounds. First, the Agency claimed that "any records that might exist which reveal any CIA connection with or interest in the activities of the Glomar Explorer ; and, indeed, any data that might reveal the existence of any such records * * * " would be classified and therefore exempt from disclosure. App. 8; see 5 U.S.C. § 552(b)(1). 2 Second, the Agency stated that

the fact of the existence or non-existence of the records you request would relate to information pertaining to intelligence sources and methods which the Director of Central Intelligence has the responsibility to protect from unauthorized disclosure in accordance with section 102(d)(3) of the National Security Act of 1947 (50 U.S.C. § 403(d)(3) (1970)). * * * 3

App. 9. Accordingly, the Agency asserted that the information was covered by FOIA's exemption for information "specifically exempted from disclosure by statute." 5 U.S.C. § 552(b)(3). 4 Plaintiff's administrative

Page 1012

appeal was rejected by the Agency on the ground that existence or nonexistence of the requested records was itself a classified fact exempt from disclosure under Sections (b)(1) and (3) of FOIA. 5 The basis for this action was the Agency's determination "that, in the interest of national security, involvement by the U.S. Government in the activities which are the subject matter of your request can neither be confirmed nor denied." App. 11.

Appellant filed her complaint in the District Court two and a half months later. She then moved to require the Agency to provide a detailed justification for each document claimed to be exempt from disclosure. See Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). The Government responded with a motion to dismiss or for summary judgment and a motion for leave to submit all material related to the case to the court in camera. The first motion was supported by two sealed affidavits, one classified secret and the other top secret. The second motion was accompanied by a public affidavit in which the Deputy Under Secretary for Management of the Department of State affirmed "that the information relevant to the United States Government case has been classified * * * on the ground that public disclosure would damage the national security, including the foreign relations of the United States." App. 26. The District Court refused to examine all of the material in camera but did consider the two sealed affidavits. On December 1st the court granted the Agency's motion for summary judgment on the ground that

(i)t appears to the Court that the provisions of 50 U.S.C.A. §§ 403(d)(3) and 403g 6 are applicable to this situation. Therefore, any materials which the defendants may have that fit the description of materials requested by the plaintiff are exempt from disclosure under the provision of the third exemption of the Freedom of Information Act. 5 U.S.C. § 552(b)(3). * * *

App. 2. In the same order the court denied appellant's motions to have her counsel participate in any in camera examination and to require the Agency to provide a Vaughn index.

Thus we are dealing with a case in which the Agency has refused to confirm or deny the existence of materials requested under the FOIA, and its refusal has been upheld by the District Court. In effect, the situation is as if appellant had requested and been refused permission to see a document which says either "Yes, we have records related to contacts with the media concerning the Glomar Explorer " or "No, we do not have any such records." On appeal appellant does not assert that the Government may never claim that national security considerations require it to refuse to disclose whether or not requested documents exist. Reply br. at 9. Rather, her principal argument, and the only question we decide, is that the Agency should have been required to support its position on the basis of the public record.

It is clear that the FOIA contemplates that the courts will resolve fundamental

Page 1013

issues in contested cases on the basis of in camera examinations of the relevant documents. See Department of the Air Force v. Rose, 425 U.S. 352, 378, 96 S.Ct. 1592, 1607, 48 L.Ed.2d 11 (1976); 5 U.S.C. § 552(a)(4)(B), as amended (Supp. V 1975). Appellant maintains that this authority does not extend to in camera examination of affidavits, the procedure used below. In the peculiar context of this case we must reject this contention. When the Agency's position is that it can neither confirm nor deny the existence of the requested records, there are no relevant documents for the court to examine other than the affidavits which explain the Agency's refusal. Therefore, to fulfill its congressionally imposed obligation to make a de novo determination of the propriety of a refusal to provide information in response to a FOIA request the District Court may have to examine classified affidavits in camera and without participation by plaintiff's counsel.

Before adopting such a procedure, however, the District Court should attempt to create as complete a public record as is possible. In camera examination has the defect that it "is necessarily conducted without benefit of criticism and illumination by a party with the actual interest in forcing disclosure." Vaughn v. Rosen, supra, 157 U.S.App.D.C. at 345, 484 F.2d at 825. In the ordinary case we have attempted to remedy this defect by requiring a detailed public justification for any claimed right to withhold a document. That justification must be accompanied by an index which correlates the asserted justifications with the contents of the withheld document. The detailed justification and index can then be subjected to criticism by the party seeking the document. If in camera examination of the document is still necessary, the court will at least have the benefit of being able to focus on the issues identified and clarified by the adversary process. See id., 157 U.S.App.D.C. at 346-348, 484 F.2d at 826-828. Congress has specifically approved these procedures. S.Rep. No. 93-854, 93d Cong., 2d Sess. 14-15 (1974).

Adapting these procedures to the present case would require the Agency to provide a public affidavit explaining in as much detail as is possible the basis for its claim that it can be required neither to confirm nor to deny the existence of the requested records. 7 The Agency's arguments should then be subject to testing by appellant, who should be allowed to seek appropriate discovery when necessary to clarify the Agency's position or to identify the procedures by which that position was established. Only after the issues have been identified by this process should the District Court, if necessary, consider arguments or information which the Agency is unable to make public.

By supplemental memorandum appellees have now adopted in this court the rationale set forth in an affidavit submitted by Brent Scowcroft, Assistant to the President for National Security Affairs, as the basis for their continuing refusal to confirm or deny the existence of any of the records requested by appellant Phillippi. Scowcroft's affidavit was submitted in the case of Military Audit Project v. Bush, 418 F.Supp. 876 (D.D.C.1976), in which the plaintiff sought copies of the contracts for construction and operation of the Glomar Explorer. The Scowcroft affidavit, which was preceded in that case by a less informative affidavit from the Government, asserted that the requested documents could not be released, nor their existence confirmed or denied, because "(o)fficial acknowledgment of the involvement of specific United States Government agencies would disclose the nature and purpose of the Program and could, in my judgment, severely damage the...

To continue reading