Krikorian v. Department of State
| Decision Date | 29 January 1993 |
| Docket Number | No. 91-5028,91-5028 |
| Parties | Van Z. KRIKORIAN, Appellant, v. DEPARTMENT OF STATE, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia, (Civil Action No. 88-03419).
Van Z. Krikorian, pro se.
Charles F. Flynn, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and R. Craig Lawrence and John D. Bates, Asst. U.S. Attys., were on the brief, for appellee.
Before MIKVA, Chief Judge; EDWARDS and HENDERSON, Circuit Judges.
Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.
I. BACKGROUND
In August 1982, the Department of State (Department) published in The Department of State Bulletin a five-page article entitled "Armenian Terrorism: A Profile" (Article). The Article included a "Note," which stated:
Because the historical record of the 1915 events in Asia Minor is ambiguous, the Department of State does not endorse allegations that the Turkish Government committed a genocide against the Armenian people. Armenian terrorists use this allegation to justify in part their continuing attacks on Turkish diplomats and installations.
This position contradicted longstanding United States policy and was eventually retracted in the May 1983 Bulletin.
In an effort to determine the origin of the Article and the Note, Van Z. Krikorian made a Freedom of Information Act (FOIA) 1 request on October 7, 1983, asking the Department for "all Department of State memoranda, directives, letters and other records ... which relate to the August 1982 publication in The Department of State Bulletin of [the Article] and the accompanying 'Note'...." Appellant's FOIA Req. at 1. The Department searched the records of various offices and in January 1986 advised Krikorian that it had retrieved sixty-six relevant documents. Of those, the Department withheld twelve in full or in part, relying on three different exemptions from disclosure included in the FOIA. In response, Krikorian filed an administrative appeal in March 1986, challenging the exemption claims. He also questioned the adequacy of the search because the Department had retrieved no pre-August 1982 materials explaining how the Article came to be, an important part of his FOIA request. The Department issued its final decision in July 1986, releasing in full two of the originally withheld documents and part of another previously withheld document.
Krikorian then filed suit in district court to contest the Department's decision to withhold, in whole or in part, ten documents and the adequacy of its search. In seeking a protective order, the Department claimed that it had recovered all relevant records. Later, however, the Department released more material. The Department has yet to retrieve any relevant records pre-dating August 1982.
The parties filed cross-claims for summary judgment. Krikorian also requested in camera review of the withheld documents. The district court granted the Department's summary judgment motion, holding that the Department correctly withheld the ten documents because they fell within three FOIA exemptions: seven of them under exemption 1, one under exemption 3 and two under exemption 5. Moreover, although the court recognized "legitimate deficiencies" in the Department's search, it did not believe they were so severe as to constitute bad faith justifying in camera review. Mem. Op. at 8.
On appeal, we address three issues. First, do the ten withheld documents fall within one of the three FOIA exemptions? Second, if they do, should portions nonetheless be disclosed because they are either segregable or officially acknowledged? Third, did the Department conduct an adequate search for the requested materials? We affirm the district court's conclusion that each of the documents contains information exempt from disclosure under the FOIA. We remand, however, for the court to make specific findings whether portions of the withheld documents are segregable and whether any portions have been officially acknowledged. Finally, we remand for further proceedings to determine whether the Department conducted an adequate search for the requested material.
II. THE EXEMPTIONS
Under the FOIA, "the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B). The Department submitted affidavits from Ralph E. Lindstrom, Director of the Department's Office of Mandatory Review in the Classification and Declassification Center, 2 Sharon B. Kotok, Acting Chief of the Department's Information Access and Service Division of the Foreign Affairs Information Management Center (FAIM/IS), and Frank M. Machak, Chief of FAIM/IS, to support its decision to withhold certain documents and to defend the adequacy of its search.
Of the ten documents withheld in full or in part, the Department asserts that exemption 1 covers seven of them. 3 Under exemption 1, documents may be withheld if they are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1). While the burden of proof is on the agency, a reviewing court " 'must recognize that the Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects [sic] might occur as a result of public disclosures of a particular classified record.' " Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981) (quoting S.Rep. No. 93-1200, 93d Cong., 2d Sess. 12 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6290). "Judges, moreover, lack the expertise necessary to second-guess such agency opinions in the typical national security FOIA case." Halperin v. CIA, 629 F.2d 144, 148 (D.C.Cir.1980). Accordingly, we " 'accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record.' " Military Audit Project, 656 F.2d at 738 (quoting S.Rep. No. 93-1200, 93d Cong., 2d Sess. 12 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6290) (emphasis in Military Audit Project ).
The Department claims that the seven documents fall under exemption 1 because they contain information about foreign governments that was communicated to our government by the foreign governments on a confidential basis, that would reveal United States intelligence sources and methods and that contains frank internal discussions of foreign relations matters. Lindstrom Aff. I at 6-9. For example, document 96 is a telegram reporting a conversation between an assistant secretary of state and a high-ranking foreign diplomat regarding Armenian terrorism. Release of the document would, in the Department's judgment, jeopardize "reciprocal confidentiality" and damage national security. Lindstrom Aff. II at 17-18. 4
As another example, the Department withheld document 87, which was classified pursuant to section 1.3(a)(5) of Executive Order 12,356 because it relates to "foreign relations or foreign activities of the United States." 5 Document 87 is a telegram from the American Embassy in Paris to the Department reporting interviews with the Turkish Ambassador to France and a leader of the Armenian National Movement. The interviews were conducted by and originally published in a Paris newspaper. The Department released the published material but it withheld one paragraph of United States Embassy comment on a sensitive issue that "would be easily misinterpreted and could cause harmful repercussions in U.S. relations." Lindstrom Aff. II at 10.
The district court found the Department's summaries of the seven documents "adequately specific" to satisfy its burden of proof. Mem. Op. at 7; see Halperin, 629 F.2d at 148 (). The court concluded that, were the Department required to be more specific, it "would be forced to breach its promises of confidentiality." Mem. Op. at 7. Having also reviewed the descriptions of the other documents included in Lindstrom's affidavits (relating to documents 79, 93, 94, 103 and 104), we agree with the district court that the seven documents contain confidential information that is exempt from disclosure under exemption 1.
The Department invokes exemption 3 to justify withholding document 11. Exemption 3 permits agencies to withhold documents if they are "specifically exempted from disclosure by statute," provided the 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." 5 U.S.C. § 552(b)(3). The Department asserts that document 11 is not disclosable under the National Security Act, 50 U.S.C. §§ 401 et seq., which makes the Director of the Central Intelligence Agency "responsible for protecting intelligence sources and methods from unauthorized disclosure." 50 U.S.C. § 403(d)(3). It is well settled that section 403(d)(3) falls within exemption 3. Gardels v. CIA, 689 F.2d 1100, 1103 (D.C.Cir.1982); Halperin, 629 F.2d at 147.
Under section 403(d)(3), a document is exempt if the Agency "demonstrates that an answer to the query 'can reasonably be expected to lead to unauthorized disclosure of intelligence sources and methods.' " Gardels, 689 F.2d at 1103 (quoting Halperin, 629 F.2d at 147). In reviewing an exemption 3 claim, we do not closely scrutinize the contents of a withheld document; instead, we determine only whether there is a relevant statute and whether the document falls within that statute. Goland v. CIA, 607 F.2d 339, 350 (D.C.Cir.1978) PCITE, 299 U.S.App.D.C. 336>>1978), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980).
Document 11 appears to...
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