Gardels v. C. I. A.

• Citation: 689 F.2d 1100
• Decision Date: 28 September 1982
• Docket Number: No. 81-1567,81-1567
• Parties: , 6 Ed. Law Rep. 937 Nathan GARDELS, Appellant, v. CENTRAL INTELLIGENCE AGENCY.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1100

689 F.2d 1100

223 U.S.App.D.C. 88, 6 Ed. Law Rep. 937

Nathan GARDELS, Appellant, v. CENTRAL INTELLIGENCE AGENCY.

No. 81-1567.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 26, 1982.

Decided Sept. 28, 1982.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 78-330).

Susan W. Shaffer, Washington, D. C., with whom Mark H. Lynch, Washington, D. C., was on the brief, for appellant.

Daniel J. Metcalfe, Atty., Dept. of Justice, Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellee.

Before EDWARDS, Circuit Judge, McGOWAN, Senior Circuit Judge, and DAVIS, ^* Judge, United States Court of Claims.

Opinion for the Court filed by Judge DAVIS.

DAVIS, Judge:

We have to decide whether the District Court correctly upheld on summary judgment, under the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b)(3), the Central Intelligence Agency's refusal to confirm or deny the existence of records pertaining to covert contacts for foreign intelligence purposes between the Agency and individuals at a specific university in the United States. Our answer is affirmative.

I

Because this court has already issued an opinion in this case which sets out the facts and prior proceedings in detail, Gardels v. Central Intelligence Agency, 637 F.2d 770, 771-3 (D.C.Cir.1980), we merely capsule the background. Appellant Gardels, a student at the University of California (Los Angeles), sought disclosure by the CIA under FOIA of past and present arrangements and relationships between the Agency and the eleven campuses of that University. (This request was later narrowed to documents retrievable through five named divisions of the CIA and those reports given to Congressional committees.) Documents relating to overt contacts were released (some with deletions), but the Agency told Gardels that it would neither confirm nor deny the existence of any documents revealing covert CIA connections with or interest in the University. Gardels then brought this suit in the District Court under FOIA, seeking disclosure whether the CIA had had such contacts. Affidavits were filed by both sides, interrogatories were answered by the Agency, depositions of CIA affiants were had. The CIA made a motion for summary judgment which was granted by the court below on the ground that the CIA's position accorded with Exemption 3 of the FOIA. 484 F.Supp. 368 (1980).

On appeal by Gardels, this court reversed (without in any way reaching the merits), solely because the Agency had filed an inadequate Statement of Material Facts As to Which There Is No Genuine Issue. 637 F.2d 770. The case was remanded so that the CIA should file a proper Statement, and the matter be decided on that basis with appropriate contest by plaintiff Gardels. After that was done, the District Court decided for the CIA again on the basis of Exemption 3. 510 F.Supp. 977 (1981) ¹ This appeal now brings us to the merits.

II

In the court below, the Agency defended its refusal to say whether or not it had had covert contacts with any person at the University of California by invoking Exemptions 1 ² and 3 of FOIA, 5 U.S.C. § 552(b)(1) and (3). The District Court, however, rested only on Exemption 3 (see 484 F.Supp. at 372; 510 F.Supp. at 978, n.1), as we do. That Exemption declares that disclosure is not required for matters that are:

(3) specifically exempted from disclosure by statute (other than section 552b of this title) provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.

The particular statute relied on, in this connection, is a portion of section 403(d)(3) of the National Security Act of 1947, 50 U.S.C. § 403 et seq.:

... that the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure ...

It is settled, in this court, that section 403(d)(3), supra, is a statute falling within Exemption 3. See Halperin v. Central Intelligence Agency, 629 F.2d 144, 147 (D.C.Cir.1980), and decisions cited at n.7. We have likewise agreed that an agency may refuse to confirm or deny the existence of records where to answer the FOIA inquiry would cause harm cognizable under an FOIA exception. See Phillippi v. Central Intelligence Agency, 546 F.2d 1009, 1012 (D.C.Cir.1976); Phillippi v. Central Intelligence Agency, 655 F.2d 1325, 1330 (D.C.Cir.1981).

The proper standard to determine whether section 403(d)(3) applies to such a situation is whether the CIA demonstrates that an answer to the query "can reasonably be expected to lead to unauthorized disclosure of intelligence sources and methods." Halperin v. Central Intelligence Agency, supra, 629 F.2d at 147. The only issue open here is whether the District Court correctly found that the Agency has met that standard in this case.

III

To make that showing, the CIA furnished affidavits from Agency officials strengthened by the depositions of some of them and by others to the effect that (a) the Agency needs, and uses as intelligence sources, covert contacts with American academics and students at American schools, and in general has continued to maintain such contacts; and (b) disclosure that such contacts were or were not made at the University of California, or at any particular school, would trigger the danger that foreign intelligence agencies could (and would) discover who those covert contacts were, and could try to prevent its nationals from going to that university, and the American schools' teachers from visiting the foreign country (or from having contact with scholars in that country); and also would try to determine what research areas or subjects interested the CIA.

We need not spell out the CIA's need for these covert contacts because plaintiff-appellant does not really contest that part of the case. Suffice it that the CIA collects confidential information and advice from academics who have travelled abroad, studied a discipline pertinent to foreign intelligence, or can help in recruiting foreign intelligence sources; the Agency also has contracts for scientific research and development as well as for social science research related to foreign policy, and has private consultations between scholars and CIA research analysts. As one CIA affidavit puts it: "To perform our job properly we need the assistance, criticism, and perspective of the best professional talents available in the private sector."

The nub of this case is whether the CIA can say whether or not it has had such covert contacts at California without undermining the confidentiality of its intelligence sources, as well as those obtained through its hidden contacts. On that, the government affidavits and depositions stress that either answer would compromise sources and methods.

To admit that the CIA had such contact at this University would allow foreign intelligence agencies to "try to zero in and identify specifically what were the nature of those relationships or with whom the relationships were." Blake Dep. at 66, Joint App. at 130. The foreign intelligence entity could and probably would examine and take measures against those of its citizens who had studied at the university, could and would prevent its nationals from attending the university, and could and would curtail access and availability to academics from California (and other American schools) travelling abroad or seeking contact with foreign sources. To help it take counter-measures and to discover what the CIA is up to, the foreign intelligence organization can piece together information regarding the University and then target certain individuals or sectors of that university's life (including covert research work for the CIA)-once the Agency concedes that it has had covert contact there. In addition, other persons at the university may reveal, inadvertently or deliberately, academics they have reason to think are covert CIA contacts. All this is explained in detail in the CIA's affidavits and depositions.

On the other hand, the Agency has also articulated the dangers inherent in its denying that it had had any covert contacts with the University of California. The CIA has received more than 125 similar FOIA requests for information on covert contacts with American colleges and universities-covering about 100 different schools. If the Agency were required to indicate those schools with which it had had no covert contact, the work of foreign intelligence bodies would obviously be much easier; they could and would concentrate their efforts on the remaining American colleges and universities, and their sphere of activity could be appreciably narrowed.

IV

What the District Court did with this CIA presentation and what this Court must consider is "a de novo determination" of the propriety of the withholding, but in doing so the courts "must 'accord substantial weight' " to the Agency's determinations. Ray v. Turner, 587 F.2d 1187, 1194 (D.C.Cir.1978). Once satisfied that proper procedures have been followed and that the information logically falls into the exemption claimed, the courts "need not go further to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith." Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C.Cir.1977). Conversely, "summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith." Halperin v. Central Intelligence Agency, supra, 629 F.2d at 148. The test is...