636 F.2d 1287 (D.C. Cir. 1980), 80-1380, Allen v. C.I.A.

Docket Nº:80-1380.
Citation:636 F.2d 1287
Party Name:Mark A. ALLEN, Appellant v. CENTRAL INTELLIGENCE AGENCY et al.
Case Date:November 12, 1980
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1287

636 F.2d 1287 (D.C. Cir. 1980)

Mark A. ALLEN, Appellant

v.

CENTRAL INTELLIGENCE AGENCY et al.

No. 80-1380.

United States Court of Appeals, District of Columbia Circuit

November 12, 1980

Argued Sept. 8, 1980.

Page 1288

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 78-1743).

James H. Lesar, Washington, D. C., for appellant.

Wendy M. Keats, Atty., Dept. of Justice, Washington, D. C., with whom Alice Daniel, Asst. Atty. Gen., Charles F. C. Ruff, U. S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellees.

Before WRIGHT, Chief Judge, and MIKVA and EDWARDS, Circuit Judges.

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

J. SKELLY WRIGHT, Chief Judge:

This case concerns a request under the Freedom of Information Act (FOIA) 1 by appellant Mark A. Allen that the Central Intelligence Agency (CIA) disclose a 15-page document containing information related to the assassination of President Kennedy. Citing Exemption 2 2 of the FOIA, the CIA has refused to release portions of the document containing its filing and routing instructions. Other portions of the document have been withheld under Exemptions 1 3 or 3 4 of the FOIA. The District Court granted summary judgment in favor of the CIA with respect to all three exemptions. 5 Finding merit in many of the appellant's

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arguments, we reverse with respect to Exemption 2. And with respect to Exemptions 1 and 3, we vacate and remand for an in camera inspection to determine the applicability of the exemptions.

I. FACTS AND PROCEDURAL BACKGROUND

Mark Allen has for a number of years engaged in extensive research concerning the murder of President Kennedy. 6 On July 24, 1978 he made an FOIA request for a CIA document identified as Item No. 509-803. This document contains CIA-developed information about the activities of Lee Harvey Oswald in Mexico City during the seven-week period prior to the President's assassination. 7 The CIA refused to release the document on the basis of Exemptions 1, 2, and 3 of the FOIA.

On September 18, 1978 Allen initiated this FOIA suit in the District Court, challenging the CIA's withholding of the requested document. In January 1979 the CIA moved to dismiss the suit and supported the motion with the affidavit of CIA Officer Robert E. Owen. 8 The District Court granted the motion. 9 Shortly after Allen had filed a notice of appeal with this court, however, the CIA asked us to remand the case for supplementing of the record. We granted the CIA's motion on October 31, 1979 and remanded the case for proceedings not inconsistent with Founding Church of Scientology v. Bell, 603 F.2d 945 (D.C.Cir.1979). 10 During the subsequent proceedings the CIA released portions of the requested document 11 and filed a supplemental affidavit of CIA Officer Owen. 12 Meanwhile, Allen made several requests for discovery, all of which were denied by the District Court. On February 6, 1980 the District Court granted summary judgment in favor of the CIA, without having made an in camera inspection of the document. Allen then brought this appeal, challenging the denial of discovery 13 and the grant of summary judgment.

II. THE FILING AND ROUTING INSTRUCTIONS

The CIA withheld those portions of the document containing filing and routing instructions on the basis of Exemption 2 of the FOIA, which exempts from disclosure matters "related solely to the internal personnel rules and practices of an agency." 14

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Appellant Allen argues that Exemption 2 does not cover filing and routing instructions. 15 The District Court held the exemption applicable. 16

We disagree. In Jordan v. U. S. Dep't of Justice, 591 F.2d 753 (D.C.Cir.1978) (en banc ), this court held "that the phrase 'internal personnel' (in Exemption 2) modifies both 'rules' and 'practices'." Id. at 764. Although it is thus clear that "Congress intended the exemption to be read as a composite clause, covering only internal personnel matters," id. (emphasis added), it is still necessary to examine the exemption's legislative history to ascertain its scope. Unfortunately, the House and Senate reports on the legislation that enacted Exemption 2 differ in the scope they attributed to the exemption. The Senate report stated:

Exemption No. 2 relates only to the internal personnel rules and practices of an agency. Examples of these may be rules as to personnel's use of parking facilities or regulation of lunch hours, statements of policy as to sick leave, and the like. 17

The House report described the exemption in broader terms:

2. Matters related solely to the internal personnel rules and practices of any agency: Operating rules, guidelines, and manuals of procedure for Government investigators or examiners would be exempt from disclosure, but this exemption would not cover all "matters of internal management" such as employee relations and working conditions and routine administrative procedures which are withheld under the present law. 18

The Supreme Court addressed the conflict between the two reports in Dep't of Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). 19 The Court held that the Senate report provided a better indication of congressional intent. Id. at 365-367, 96 S.Ct. at 1596-1602. In the instant case there is little doubt that the narrow scope of Exemption 2 reflected in the Senate report does not extend to the filing and routing instructions. That report, by the examples of exempt matters it gives in the portion quoted above, makes clear that the exemption covers nothing more than trivial administrative personnel rules generally concerning hours, pay, and permitted activity while at work. Filing and routing instructions for a document, however, are plainly not included in that narrow category of administrative personnel rules and are totally unlike any of the examples cited. 20 We thus share the view of appellant that the filing and routing instructions are outside the ambit of Exemption 2. 21 The District Court's holding

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to the contrary is accordingly reversed and the CIA is directed to release those portions of the document containing filing and routing instructions.

III. THE PORTIONS OF THE DOCUMENT WITHHELD UNDER EXEMPTIONS 1 AND 3

The CIA relies on Exemptions 1 and 3 as justification for its withholding of portions of the document other than the filing and routing instructions. Exemption 1 permits withholding of matters that are authorized by Executive Order to be kept secret and "are in fact properly classified pursuant to such Executive order(.)" 22 Exemption 3 permits nondisclosure of information "specifically exempted from disclosure by statute(.)" 23 Allen contends that summary judgment was improper with respect to Exemptions 1 and 3 because the two affidavits presented by the CIA failed to demonstrate that the withheld portions of the document come within the two exemptions. We agree.

A. The Adequacy of the CIA Affidavits

The FOIA directs trial courts to conduct de novo review of the applicability of the particular exemptions cited by the agency to the withheld matters. 5 U.S.C. § 552(a)(4)(B) (1976). To assist the trial court in making its de novo review agencies are expected to submit affidavits demonstrating the applicability of the exemptions. In some cases the agency affidavits will provide a sufficient basis for decision without in camera inspection. In Hayden v. National Security Agency/Central Security Service, 608 F.2d 1381 (D.C.Cir.1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2156, 64 L.Ed.2d 790 (1980), this court enunciated the standard for granting such summary judgment:

(T)he affidavits must show, with reasonable specificity, why the documents fall within the exemption. The affidavits will not suffice if the agency's claims are conclusory, merely reciting statutory standards, or if they are too vague or sweeping. If the affidavits provide specific information sufficient to place the documents within the exemption category, if this information is not contradicted in the record, and if there is no evidence in the record of agency bad faith, then summary judgment is appropriate without in camera review of the documents. * * *

Id. at 1387 (footnotes omitted).

In the instant case we are of the view that the CIA affidavits were not "reasonabl(y) specific( )," but rather were "conclusory, merely reciting statutory standards," and that summary judgment was accordingly inappropriate.

1. The Exemption 1 claims

Exemption 1 requires that the most recent classification of a requested document be in conformity with both the procedural and substantive criteria of the then-applicable Executive Order. See Lesar v. U. S. Dep't of Justice, 636 F.2d 472, 483 (D.C.Cir.1980) (citing S.Rep.No.1200, 93d Cong., 2d Sess. 11-12 (1974) U.S.Code Cong.

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& Admin.News 1974, pp. 6267, 6285); Zweibon v. Mitchell, 516 F.2d 594, 642 (D.C.Cir.1975) (en banc ) (quoting H.R.Rep.No.1380, 93d Cong., 2d Sess. 12 (1974) U.S.Code Cong. & Admin.News 1974, p. 6267), cert. denied, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976). While in the instant case both affidavits of CIA Officer Owen state 24 that the document was properly classified under Executive Order 12065, 25 they are drawn in conclusory terms that merely parrot the language of the Executive Order. There is no basis on which a trial court might conclude that the procedural requirements of Executive Order 12065 have been satisfied. For instance, Section 1-501 of Executive Order 12065 requires that

(a)t the time of original classification, the following shall be shown on the face of paper copies of all classified documents:

(a) the identity of the original classification authority;

(b) the office of origin;

(c) the date or event for declassification or review; and

(d) one of the three classification...

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