697 F.2d 1095 (D.C. Cir. 1983), 82-1096, McGehee v. C.I.A.

Docket Nº:82-1096.
Citation:697 F.2d 1095
Party Name:Fielding M. McGEHEE, III, Appellant v. CENTRAL INTELLIGENCE AGENCY.
Case Date:January 04, 1983
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1095

697 F.2d 1095 (D.C. Cir. 1983)

Fielding M. McGEHEE, III, Appellant

v.

CENTRAL INTELLIGENCE AGENCY.

No. 82-1096.

United States Court of Appeals, District of Columbia Circuit

January 4, 1983

Argued Sept. 15, 1982.

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Katherine A. Meyer, Washington, D.C., with whom Alan B. Morrison, Washington, D.C., was on the brief, for appellant.

John H.E. Bayly, Jr., Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence and Michael J. Ryan, Asst. U.S. Attys., and Emilio Jaksetic, Atty., C.I.A., Washington, D.C., were on the brief, for appellee.

Before WRIGHT, EDWARDS and BORK, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

Separate opinion concurring and dissenting in part filed by Circuit Judge BORK.

TABLE OF CONTENTS

Page Introduction ................................... 1097 I. BACKGROUND .............................. 1097 II. THE USE OF A TIME-OF-REQUEST CUT-OFF DATE ........................... 1100 A. Applicable Law ...................... 1100 B. The Legality of the Agency's Rule Adopting A Time-of-Request Cut-Off Date ................................ 1102 C. The Reasonableness of the Agency's Procedure in This Instance .......... 1103 III. THE REFERRAL PROCEDURE .................. 1105 A. "Agency Records" Covered by the Act ................................. 1105 B. Treatment of Documents Obtained From Other Agencies ................. 1109 IV. INVOCATION OF THE "INTELLIGENCE SOURCE" EXEMPTION .............................. 1112 CONCLUSION ..................................... 1114 HARRY T. EDWARDS, Circuit Judge:

We are asked in this case to decide several questions concerning the scope of the duties imposed on government agencies by the Freedom of Information Act ("FOIA" or "the Act"). 1 The District Court granted appellee's motion for summary judgment on the theories that appellee had conducted a sufficiently thorough search for documents subject to disclosure and had released to appellant all of the materials required by the Act. In reaching these conclusions, the District Court upheld as reasonable an unpublicized Central Intelligence Agency ("CIA" or "the agency") rule which had the effect of limiting the FOIA search to materials in the agency's possession on the date when appellant made his initial request for documents. This "time-of-request cut-off" policy was approved by the trial court even though the agency failed to disclose any documents to appellant until compelled to do so by an order of the court almost two and one-half years after the original time of request. The District Court also granted appellee's motion to dismiss from the lawsuit all records in the possession of the CIA that had been obtained from the State Department or the Federal Bureau of Investigation ("FBI"). Finally, the District Court relied solely on affidavits submitted by the CIA in upholding the nondisclosure of a number of disputed documents under FOIA exemptions (1) and (3). 2 Because we conclude that the District Court's rulings were founded upon misinterpretations of applicable legal standards, we reverse and remand for further proceedings.

I. BACKGROUND

The outcome of this case turns substantially upon nuances in its facts. Accordingly,

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the procedural background to this appeal will be described at some length. 3

Appellant McGehee is a free-lance journalist and a relative of three victims of the gruesome demise of the "People's Temple" in Jonestown, Guyana. Many of the circumstances surrounding the Jonestown Tragedy are well known, indeed notorious. In November, 1978, Congressman Leo J. Ryan and a portion of his staff traveled to Guyana to investigate allegations of mistreatment of some of his constituents in the Jonestown religious community. On November 18, as they were about to board a plane to leave, Ryan, three representatives of the media, and one apparent defector from the community were shot and killed. Within hours, almost all of the more than 900 members of the Jonestown congregation, including its founder, Jim Jones, either committed suicide or were murdered. 4

Despite the extensive attention given the Jonestown Tragedy, the character of the People's Temple religious community, the events leading up to the catastrophe, and the manner in which so many people died remain somewhat mysterious. Proceeding on the assumption that the CIA possesses recorded information that sheds light on these matters, McGehee, on December 6, 1978, filed the FOIA request that gives rise to this controversy. McGehee initially asked for documents relating to several aspects of the development and fate of Jim Jones' congregation. 5 On December 22, at the suggestion of a representative of the agency, he narrowed his request to records pertaining to the "Peoples Temple." 6

The treatment accorded McGehee's request during the following month is not entirely clear from the record. It appears that the agency's Information and Privacy Division ("IPD"), the office that coordinates responses to requests for information, determined that two other divisions--the Directorate of Operations ("DO") and the Office of Security ("OS")--were the offices most likely to possess documents of the sort McGehee was seeking. Accordingly, those two divisions were "tasked"--i.e., asked to search for and identify relevant records. Each division apparently was instructed to confine its attention to documents received on or before December 22, 1978, the day McGehee's request was finalized. Soon thereafter OS informed IPD that it had found no such materials. An initial search by DO, on the other hand, revealed the existence of responsive documents, but DO at this time appears not to have informed IPD of its findings. Nor does DO seem to have made any effort at this point to review

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or even to retrieve the identified documents. Meanwhile, IPD learned that a third division, the National Foreign Assessment Center/Office of Central Reference ("NFAC/OCR"), had completed a computer search in response to an earlier FOIA request very similar to McGehee's (the "Douglas request") and had identified relevant documents in the agency's possession. 7 However, no immediate effort was made to retrieve those documents either. Instead, McGehee's request (which was marked with some kind of notation of the location of records that might prove responsive) was placed at the end of a "processing queue," the CIA's system for dealing with FOIA requests on a "first-in-first-out basis." 8

This initial flurry of activity had subsided by mid-January, 1979. Between that time and December, 1980, the agency did virtually nothing about McGehee's request. 9 Beginning in March, 1979, McGehee periodically contacted the CIA, either directly or through counsel, to ascertain the status of his request. The agency provided him with no information regarding the steps it had taken and gave him no definite indication of when any responsive documents would be released. 10 Never did the agency inform McGehee that it had adopted December 22, 1978 as a "cut-off date" for its searches.

On November 21, 1980, McGehee filed suit in the District Court seeking to compel the CIA to respond to his pleas. 11 On March 3, 1981, the court set a deadline of May 5, 1981, by which time the agency was to complete its processing of McGehee's request, release all nonexempt responsive material, and submit a Vaughn index 12 cataloging any withheld documents. Soon thereafter the court granted the agency's motion for a protective order, shielding the CIA from discovery by McGehee. On May 5, in compliance with the court's directive, the agency revealed (for the first time) that it possessed 84 documents responsive to McGehee's request. 13 It disposed of those

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materials as follows: 12 were released in full; 18 were released with substantial portions deleted; 26 were withheld; 28 were forwarded to other government agencies, from which the CIA had originally obtained them.

The last set of records is one of the hubs of this controversy. It is undisputed that, of the 28 "other agency" documents, 27 had originated with the State Department and one with the FBI. In accordance with its standard procedure, the CIA declined to undertake any kind of substantive review of the "other agency" records and instead sent them to the agencies that first compiled them to enable those agencies to determine whether any material was exempt from disclosure. 14 McGehee has not submitted a FOIA request to either the State Department or the FBI, insisting that the CIA is required by the Act to evaluate and release the documents in question. Nevertheless, the State Department has voluntarily reviewed the 27 records that it originally created and has released a majority of them to McGehee. 15 The fate of the FBI document does not appear from the record.

In the summer of 1981, McGehee accidentally learned, from a letter written by a representative of the CIA to a third party, that the agency had been treating the time of his original request as a cut-off date for its FOIA search. Moreover, comments made in that letter raised the possibility that the agency had limited its searches to files denominated "People's Temple" and had not sought information under any closely related headings--e.g., the Reverend James Jones or Jonestown. See App. 191.

On January 19, 1982, despite these revelations, the District Court issued final judgment in the case. The court denied McGehee's motion for an in camera inspection of the withheld and edited documents to test the basis for the...

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