Paisley v. C.I.A.

Decision Date22 July 1983
Docket NumberNo. 82-1799,82-1799
Citation712 F.2d 686
PartiesMaryann PAISLEY, Appellant, v. CENTRAL INTELLIGENCE AGENCY et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 80-0038).

Eric R. Glitzenstein, with whom Alan B. Morrison and Cornish F. Hitchcock, Washington, D.C., were on brief, for appellant. Katherine A. Meyer, Washington, D.C., entered an appearance for appellant.

Michael J. Ryan, Asst. U.S. Atty., with whom Stanley S. Harris, U.S. Atty., and Royce C. Lamberth, John O. Birch, and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on brief, for appellees.

Before WRIGHT and WILKEY, Circuit Judges, and BONSAL, * Senior District Judge.

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

J. SKELLY WRIGHT, Circuit Judge:

In this action arising under the Freedom of Information Act (FOIA or Act), 1 appellant Maryann Paisley seeks information from the Central Intelligence Agency (CIA) and the Federal Bureau of Investigation (FBI) concerning the 1978 shooting death of her husband, a former CIA official. These agencies refuse to release 58 documents that are responsive to appellant's request, on grounds that the documents constitute congressional records not subject to FOIA 2 or, alternatively, that they are protected from disclosure by Exemption 5 of the Act. 3 Additionally, the CIA claims that certain documents must also be withheld pursuant to Exemptions 1 4 and 3 5 of FOIA. The District Court granted partial summary judgment in favor of the CIA and the FBI, finding that release of these disputed documents was barred by the Speech or Debate Clause of the Constitution, 6 as well as by the Act's Exemption 5. Because the Speech or Debate Clause is inapposite to this case and more thorough consideration of the applicability of various FOIA exemptions to these agency records is necessary, we reverse and remand this case to the District Court for further proceedings in accordance with this opinion.

I. BACKGROUND

On September 24, 1978 John A. Paisley set sail on the Chesapeake Bay, alone in his sloop, the "Brillig." The next day the pilotless sloop was found aground on the Bay shore. One week later a body was discovered in the Bay with weighted diver's belts about the waist and chest and with a gunshot wound to the head. The body was subsequently identified as that of John Paisley.

Paisley had worked for the CIA from 1963 to 1974, eventually becoming the agency's Deputy Director of Strategic Research. From 1974 until his death in 1978 Paisley had served as a part-time consultant for the agency. The mysterious circumstances of his death generated considerable media speculation 7 and prompted the Senate Select Committee on Intelligence (SSCI or Committee) to initiate its own factfinding inquiry. The Committee asked the FBI to gather and assess the available evidence concerning Paisley's death. Upon receipt of the FBI's report on April 18, 1979, the Committee issued a press release stating that it would be making some additional limited inquiries and would then release a full report. 8 No report has ever been made public.

On April 18, 1979 appellant Maryann Paisley sent identical letters to the CIA, the FBI, and the Department of Defense (DOD), requesting, pursuant to the Act, "any and all records in whatever form and wherever situate with respect to her husband, John A. Paisley." 9 During that year the CIA released 292 documents in partial response to her FOIA request. The FBI, however, refused to expedite processing of her request and furnished no information whatever.

Dissatisfied, appellant filed this action against the CIA, the FBI, and the DOD on January 7, 1980. Appellant asked the District Court to order defendants to produce all responsive, nonexempt documents in their possession. Subsequently, the parties entered into a number of stipulations, agreeing: (1) to dismiss DOD from the case inasmuch as it possessed no records responsive to appellant's request; (2) that 752 CIA documents responsive to her request were no longer at issue; and (3) that 66 FBI documents responsive to her request were no longer at issue.

On September 25, 1980 the FBI filed affidavits by Special Agents Richard A. McCauley and Thomas L. Wiseman, releasing certain requested documents but withholding parts thereof or other entire documents pursuant to numerous FOIA exemptions 10 and because some were not "agency records." The FBI also noted that a number of responsive documents had been referred to the Coast Guard, the CIA, and the Department of Justice (DOJ), as the originating agencies, for direct response to the FOIA request. On June 18, 1981 CIA officials Harry E. Fitzwater, Louis J. Dube, and Paul L. Marr filed similar affidavits, releasing some documents in their entirety and others only in part. They likewise justified the withholding of other documents and the deletions under various exemptions 11 and because certain records in the CIA's possession were not deemed "agency records."

On July 23, 1981 the agencies moved for summary judgment. Appellant filed an opposition coupled with a motion to require the CIA and the FBI to prepare supplemental indices of the withheld documents in accordance with the standard set forth in Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). 12 On October 20 the District Court ordered appellees to provide more information as to the documents referred to other agencies, and to prepare supplemental Vaughn indices for the documents withheld as congressional, and not agency, records.

The CIA submitted the affidavit of J. William Doswell, describing the 57 documents withheld as congressional records. These documents fall into three distinct categories: (1) CIA phone log entries summarizing conversations between the agency and the SSCI; (2) agency memoranda detailing meetings between CIA personnel and the SSCI and its staff; and (3) requests for information made by the SSCI and the CIA's responses to those requests. 13 If not claimed to be congressional records, all documents were additionally described as exempt intra-agency memoranda pursuant to Exemption 5; 28 of the documents were also claimed as exempt due to security classification under Exemptions 1 and 3.

The FBI responded to the District Court's request for further information by submitting the affidavit of Special Agent Sherry L. Davis with a supplemental index identifying eleven documents as congressional records not subject to FOIA or, alternatively, as protected by Exemption 5. All but one of the eleven documents had been received from the SSCI, and seven had been classified as "Secret" by the SSCI. See Davis Affidavit at 6-8, JA 119-121. The FBI's submission also explained that the Department of Justice would respond directly to appellant concerning the three responsive documents referred by the FBI to the Department. 14

On May 13, 1982 the District Court sua sponte dismissed appellant's complaint as to the three FBI documents referred to the Department of Justice, claiming that it lacked jurisdiction over these documents because DOJ was not formally party to the suit. Memorandum of the District Court in Paisley v. CIA, D.D.C. Civil Action No. 80-0038, filed May 13, 1982 (hereinafter Dist.Ct.Op.), at 4, JA 155. The District Court then granted partial summary judgment for the agencies. However, it did order the CIA to release one document to appellant [229 U.S.App.D.C. 377] --a SSCI press release. 15 Seven of the FBI documents were found to be congressional documents because the District Court determined that the Committee maintained control over them. Id. at 4-6, JA 155-157. The other four FBI documents 16 and the remaining 55 CIA documents 17 were found to be not subject to Committee control and so were agency records within FOIA coverage. Id. at 6-8, JA 157-159. However, the District Court determined that all 59 documents could be withheld in their entirety under the Speech or Debate Clause of the Constitution and under Exemption 5 of the Act. Id. at 7-11, JA 158-162.

II. JURISDICTION OVER DOJ DOCUMENTS

Appellant's first allegation of error is that the District Court improperly held that it lacked jurisdiction over five FBI documents 18 that had originated with DOJ and that the FBI had then referred back to DOJ for direct response to appellant's FOIA request. The lower court sua sponte dismissed the complaint with respect to these documents on the theory that appellant's "proper recourse" would be against DOJ itself, an agency not a party to this litigation. 19 In so doing, the District Court followed the reasoning of a prior District Court opinion, McGehee v. CIA, 533 F.Supp. 861, 868-869 (D.D.C.1982), rev'd, 697 F.2d 1095 (D.C.Cir.1983), 20 which held that an agency could properly refer documents responsive to FOIA requests to the agency that created the documents in the first place, especially if those documents were classified or contained sensitive information.

The District Court's decision in McGehee, however, is no longer good law. This court has since reversed that lower court holding, resolving the basic jurisdictional issue common to both cases. In McGehee v. CIA we plainly held that "when an agency receives a FOIA request for 'agency records' in its possession, it must take responsibility for processing the request. It cannot simply refuse to act on the ground that the documents originated elsewhere." 697 F.2d 1095, 1110 (D.C.Cir.1983). A District Court with jurisdiction of the agency possessing the disputed documents will therefore have jurisdiction to resolve the status of those documents, no matter what their origin.

In light of our McGehee decision, we must reverse the District Court's dismissal in this case of the five FBI documents referred to DOJ. We remand...

To continue reading

Request your trial
127 cases
  • Dillon v. U.S. Dep't of Justice
    • United States
    • U.S. District Court — District of Columbia
    • 16 Marzo 2020
    ...material in the records at issue reveals the agency's deliberative process." Morley , 508 F.3d at 1127 (quoting Paisley v. CIA , 712 F.2d 686, 698 (D.C. Cir. 1983), vacated in part on other grounds, 724 F.2d 201 (D.C. Cir. 1984) ); see also Dudman Commc'ns Corp. v. Dep't of Air Force , 815 ......
  • Hobart Corp. v. EEOC
    • United States
    • U.S. District Court — Southern District of Ohio
    • 22 Agosto 1984
    ...`give-and-take' of the deliberative process and containing opinions, recommendations or advice about agency policy." Paisley v. CIA, 712 F.2d 686, 698 (D.C.Cir. 1983), parts unrelated to this cause of action vacated and remanded, 724 F.2d 201 (D.C.Cir.1984). See Arthur Andersen & Co. v. I.R......
  • Berry v. Department of Justice
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 30 Mayo 1984
    ...that Goland remains the law of the D.C. Circuit despite occasional intervening cases to the contrary. See Paisley v. Central Intelligence Agency, 712 F.2d 686, 693 (D.C.Cir.1983). See also Crooker v. United States Parole Commission, 730 F.2d 1 at 5 & n. 3 (1st Cir.1984) (Paisley and Lykins ......
  • King v. U.S. Dept. of Justice
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 28 Septiembre 1987
    ...v. United States Dep't of the Air Force, supra note 63, 184 U.S.App.D.C. at 359, 566 F.2d at 251. Cf. Paisley v. CIA, 229 U.S.App.D.C. 372, 376 n. 12, 712 F.2d 686, 690 n. 12 (1983) ("[t]he index consists of one document that adequately describes each withholding record or deletion and sets......
  • Request a trial to view additional results
2 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT