Minier v. Central Intelligence Agency

Decision Date08 July 1996
Docket NumberNo. 95-15475,95-15475
Citation88 F.3d 796
Parties97 Cal. Daily Op. Serv. 5066, 96 Daily Journal D.A.R. 8195 David D. MINIER, Plaintiff-Appellant, v. CENTRAL INTELLIGENCE AGENCY, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

David D. Minier, * Chowchilla, California, pro se.

Camil A. Skipper, Assistant United States Attorney, Sacramento, California, for defendant-appellee.

Appeal from the United States District Court for the Eastern District of California, Garland E. Burrell, Jr., District Judge, Presiding. D.C. No. CV 94-5747-GEB.

Before: T.G. NELSON and TASHIMA, Circuit Judges, and BURNS, District Judge. **

TASHIMA, Circuit Judge:

Invoking the Freedom of Information Act, 5 U.S.C. § 552 et seq. ("FOIA"), plaintiff-appellant David Minier ("Minier") requested defendant-appellee Central Intelligence Agency (the "CIA") to disclose whether Claude Barnes Capehart ("Capehart"), acting as a CIA agent, was involved in a CIA plot to assassinate President John F. Kennedy. The CIA, relying on certain exemptions to the FOIA, refused to confirm or deny Capehart's alleged employment with the CIA. The district court granted summary judgment for the CIA, and Minier appeals.

We have jurisdiction under 28 U.S.C. § 1291. Because the CIA is exempted from disclosing agent names under the plain language of 50 U.S.C. §§ 403g and 403-3(c)(5), we affirm.

BACKGROUND

Certain historical facts are unassailable, while others are constantly subject to attack and, ultimately, remain shrouded in mystery and confusion. Both types of facts surround the assassination of President John F. Kennedy. We know beyond dispute, that on November 22, 1963, President Kennedy was tragically shot and killed while traveling through the streets of Dallas, Texas. We also know that a single individual, Lee Harvey Oswald, was arrested and portrayed to the public as the sole assassin. Over the past thirty years, however, many people have debated the accuracy of the sole assassin theory, positing that one individual could not have accomplished the task alone. Although many conspiracy theories have been generated through the years, the most infamous theory alleges CIA involvement in the assassination. 1 In June, 1975, the Rockefeller Commission, established by President Ford, released a report finding "no credible evidence of any CIA involvement." H.R.Rep. No. 625(II), 102d Cong., 2d Sess. 10 (1992) (quoting Report to the President by the Comm'n on CIA Activities within the U.S., June 1975, at 269). As this case reveals, however, concerns about the role the CIA played in the Kennedy assassination have not yet been laid to rest.

Capehart, who died in 1989, claimed to have been a CIA agent involved in the assassination of President Kennedy. In February, 1992, Minier made a FOIA request of the CIA to determine whether the CIA had ever employed Capehart, directly or indirectly. In March, 1992, the CIA denied the request based on its policy never to "confirm nor deny the past or present affiliation of individuals with the CIA."

In April, 1992, Minier administratively appealed this decision within the CIA. The CIA responded that there would be a delay in the consideration of his appeal because of a backlog of 400 earlier filed appeals. In June, 1994, Minier expanded his original request to include all records of the "activities, assignments, actions and whereabouts of Claude Barnes Capehart during the month of November, 1963." In October, 1994, the CIA denied Minier's appeal. Relying on Exemptions 1 and 3 of FOIA, 5 U.S.C. §§ 552(b)(1) and (b)(3), the CIA concluded that to confirm or deny a relationship between the CIA and Capehart would jeopardize national security and compromise CIA sources and methods.

In July, 1994, before the CIA acted on his appeal, Minier filed this action to compel the CIA to release the requested information. 2 In August, 1994, Minier filed a motion for a The CIA thereafter sought summary judgment. The CIA submitted a declaration in support of its motion ("CIA declaration"), which explained that protection of the identities of CIA personnel is necessary for the development, maintenance and protection of secret contacts both in the United States and abroad. The district court granted the CIA's motion for summary judgment and denied Minier's motion for reconsideration of the magistrate's denial of a Vaughn index. The district court concluded: (1) the information was properly exempted under both Exemptions 1 and 3; (2) there was no evidence of CIA bad faith; and (3) a Vaughn index would not aid Minier's ability to contest the applicability of the exemptions. This appeal followed.

                Vaughn index. 3  The magistrate judge denied the motion, concluding that the parties' legal arguments would not be aided by an index of CIA documents pertaining to Capehart
                
DISCUSSION
I. Standard of Review

Ordinarily, we review summary judgments de novo. In FOIA cases, because of their unique nature, we have adopted a two-step standard of review. Schiffer v. FBI, 78 F.3d 1405, 1408 (9th Cir.1996).

Unlike the typical summary judgment analysis, in a FOIA case, we do not ask whether there is a genuine issue of material fact, because the facts are rarely in dispute. Id. at 1409. We must first determine whether the district court had an adequate factual basis upon which to base its decision. Painting Indus. of Hawaii Market Recovery Fund v. United States Dep't of the Air Force, 26 F.3d 1479, 1482 (9th Cir.1994). If so, the district court's conclusion of an exemption's applicability is reviewed de novo. Schiffer, 78 F.3d at 1409.

II. Exemption 3 of FOIA

FOIA entitles private citizens to access government records. See CIA v. Sims, 471 U.S. 159, 166-67, 105 S.Ct. 1881, 1886-87, 85 L.Ed.2d 173 (1985). FOIA contains nine exemptions, however, which a government agency may invoke to protect certain documents from public disclosure. 5 U.S.C. § 552(b). Moreover, a government agency may issue a "Glomar Response," that is, refuse to confirm or deny the existence of certain records, if the FOIA exemption would itself preclude the acknowledgment of such documents. Hunt v. CIA, 981 F.2d 1116, 1118 (9th Cir.1992). 4

The agency resisting disclosure of requested information has the burden of proving the applicability of an exemption. Church of Scientology v. United States Dep't of the Army, 611 F.2d 738, 742 (9th Cir.1979). The agency may meet its burden by submitting a detailed affidavit showing that the information "logically falls within the claimed exemptions." Hunt, 981 F.2d at 1119. In evaluating a claim for exemption, a district court must accord "substantial weight" to CIA affidavits, provided the justifications for nondisclosure "are not controverted by contrary evidence in the record or by evidence of CIA bad faith." Id. (citing Miller v. Casey, 730 F.2d 773, 776 (D.C.Cir.1984)).

In the case at bench, the CIA relies on Exemption 3, 5 U.S.C. § 552(b)(3), to justify its Glomar Response regarding Capehart's alleged employment with the CIA. 5 Exemption 3 covers records that are specifically exempted from disclosure by other federal statutes "provided that such statute affords the agency no discretion on disclosure, establishes particular criteria for withholding the information, or refers to the particular types of material to be withheld." Hunt, 981 F.2d at 1118 The CIA contends that the requested information is exempted under 50 U.S.C. §§ 403-3(c)(5) 7 and 403g. 8 Both statutes clearly identify the types of material to be withheld under their scope as required by 5 U.S.C. § 552(b)(3), and therefore qualify as FOIA exemptions. See Sims, 471 U.S. at 167-68, 105 S.Ct. at 1886-87 (identifying predecessor to § 403-3(c)(5), 50 U.S.C. § 403(d)(3) (amended 1992), as an Exemption 3 statute); Hunt, 981 F.2d at 1118 (same); Sims, 471 U.S. at 193, 105 S.Ct. at 1900 (Marshall, J. concurring) (identifying § 403g as an exemption from FOIA); Wiener v. FBI, 943 F.2d 972, 972 (9th Cir.1991) (same), cert. denied, 505 U.S. 1212, 112 S.Ct. 3013, 120 L.Ed.2d 886 (1992).

                (citing 5 U.S.C. 552(b)(3)). 6  A two-part inquiry determines whether Exemption 3 applies to a given case.  Sims, 471 U.S. at 167, 105 S.Ct. at 1886-87.   First, a court must determine whether there is a statute within the scope of Exemption 3. Id.  Then, it must determine whether the requested information falls within the scope of the statute.  Id
                

The next question is whether the requested information falls within the scope of these two statutes. Section 403-3(c)(5) provides that the Director of the CIA shall "protect intelligence sources and methods from unauthorized disclosure." Section 403-3(c)(5) is "very broad authority to protect all sources of intelligence information from disclosure." Hunt, 981 F.2d at 1119 (quoting Sims, 471 U.S. at 168-69, 105 S.Ct. at 1887-88). In fact, Hunt has recognized the "sources and methods" statutory mandate as a "near-blanket FOIA exemption," which is "only a short step [from] exempting all CIA records from FOIA." Id. at 1120, 1121 (quotation omitted).

Section 403g provides that in order "to implement 403-3(c)(5) ... the Agency shall be exempted" from disclosing "the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency." 50 U.S.C. § 403g (emphasis added). Reading these two statutes together, the CIA may withhold the names of its employees because release of this information would disclose "sources and methods" of intelligence gathering. See Sims, 471 U.S. at 193, 105 S.Ct. at 1900 (Marshall, J. concurring) (noting that "Congress has elsewhere identified particular types of information that it believes may be withheld ..., such as the identities of Agency employees"); Wiener, 943 F.2d at 983 ("Codenames plainly fall within section 403g's exemption of the names of CIA agents"). Thus, the plain language of §§ 403-3(c)(5) and 403g expressly provides that the CIA...

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