Maynard v. C.I.A.

• Decision Date: 14 September 1992
• Docket Number: Nos. 91-1334,92-1615,s. 91-1334
• Citation: 986 F.2d 547
• Parties: Beatrice MAYNARD, Plaintiff, Appellee, v. CENTRAL INTELLIGENCE AGENCY, Defendant, Appellant. Beatrice MAYNARD, Plaintiff, Appellant, v. CENTRAL INTELLIGENCE AGENCY, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 547

986 F.2d 547

Beatrice MAYNARD, Plaintiff, Appellee, v. CENTRAL INTELLIGENCE AGENCY, Defendant, Appellant.

Beatrice MAYNARD, Plaintiff, Appellant, v. CENTRAL INTELLIGENCE AGENCY, et al., Defendants, Appellees.

Nos. 91-1334, 92-1615.

United States Court of Appeals First Circuit.

Heard Sept. 14, 1992.

Decided Feb. 4, 1993.

Steven J. Lyman with whom Law Office of Carl D. McCue was on brief for plaintiff, appellee.

John P. Schnitker, Appellate Staff, Civ. Div., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Richard S. Cohen, U.S. Atty., and Leonard Schaitman, Appellate Staff, Civ. Div., Dept. of Justice, were on briefs for defendants, appellees.

Before BREYER, Chief Judge, CAMPBELL, Senior Circuit Judge, and TORRUELLA, Circuit Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

Plaintiff Beatrice Maynard brought this action in the district court to compel disclosure under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, of certain government documents and parts of documents pertaining to the disappearance of her former husband, Robert Thompson, during a flight over Cuba in December of 1961. Maynard had sought information about this from various agencies, including the Central Intelligence Agency ("CIA"), the Federal Bureau of Investigation ("FBI"), the Defense Intelligence Agency ("DIA"), the State Department, the Immigration and Naturalization Service ("INS"), the United States Customs Service ("Customs Service"), the Federal Aviation Administration ("FAA"), the National Personnel Records Center ("NPRC"), and the Navy Department. ¹ While certain records and other materials were provided to her, Maynard felt that she was entitled to more, and so brought this suit.

After reviewing several documents in camera, the district court ordered disclosure of two items of information--one name and one paragraph--that the government had expressly redacted from materials it had furnished to plaintiff. The CIA appeals from the court's direction to reveal the paragraph, arguing that the paragraph was properly withheld under FOIA's Exemptions 1 and 3, 5 U.S.C. § 552(b)(1), (3). ² In all other respects, the district court granted summary judgment in favor of the defendant agencies, denying plaintiff's requests for further information, for further document searches, and for attorney's fees. Plaintiff now appeals from these judgments.

Finding that Exemptions 1 and 3 authorize the CIA's withholding of the redacted paragraph, we reverse the order requiring the CIA to disclose it. ³ We affirm the district court's grant of summary judgment for the defendant agencies.

I.

1. The CIA's Appeal

On January 22, 1987, plaintiff submitted FOIA requests to the defendant agencies, seeking any information they might have concerning her former husband, Robert Thompson. She said he disappeared along with Robert Swanner on a flight over Cuba, in December of 1961. Thompson apparently was involved in the distribution of anti-Castro leaflets; plaintiff believed him to have worked for the CIA. Among documents produced by the FBI in response to plaintiff's requests was a redacted memo dated December 22, 1961. The FBI informed plaintiff that the excised information had originated with the CIA and was being withheld under FOIA Exemptions 1 and 3 at the CIA's request. Plaintiff brought this action in the district court in February 1988, seeking more complete disclosure, including disclosure of the withheld paragraph.

After the agency defendants moved for summary judgment, the district court in March of 1990 ordered the government to submit for the court's in camera inspection all withheld and redacted documents in their complete form. The government did so on May 1, 1990. Among the documents submitted were thirty-two pages the FBI had located in its search for documents responsive to plaintiff's FOIA request. ⁴ This material included the redacted memo of December 22, 1961 that has since become the subject of the CIA's appeal.

To help explain its position, the CIA submitted to the district court the public declaration of Katherine M. Stricker, an Information Review Officer for the CIA's Directorate of Operations. With respect to Exemption 1, which exempts national security information classified pursuant to an Executive Order, Stricker explained that she had personally reviewed the classification determinations under the standards of Executive Order 12356. Based on that review, Stricker determined that the withheld information would "reveal the identity of an intelligence source or disclose an intelligence method," the unauthorized disclosure of which, "either by itself or in the context of other information, reasonably could be expected to cause damage to the national security." See Executive Order 12356, §§ 1.3(a)(4), (c), 47 Fed.Reg. 14874, 14876. Accordingly, she said, the information was properly classified at the "SECRET level" and was exempt from disclosure under FOIA Exemption 1.

With respect to Exemption 3, which protects information exempted from disclosure by statute, Stricker explained that, similar to Executive Order 12356, the National Security Act, 50 U.S.C. § 403(d)(3), requires the Director of the CIA to protect intelligence sources and methods from unauthorized disclosure. Stricker concluded that the redacted information fell within the ambit of the statute because it identified the use of particular intelligence methods used during specific time periods. According to Stricker, the release of such information would allow hostile intelligence organizations to neutralize the use of those methods, thereby causing a concomitant loss of intelligence.

On November 14, 1990, the district court ordered the government to give to plaintiff information from three of the documents subject to in camera review. This included the information at issue here--the third full paragraph on page 2 of the December 22, 1961 memo. ⁵ The CIA moved for reconsideration of the portion of the court's order regarding the redacted paragraph and submitted an in camera declaration by Stricker, which explained in further detail the nature of the information withheld. On February 1, 1991, the district court granted the CIA's motion for reconsideration, but on reconsideration, the court affirmed its earlier ruling, finding that "the movant's assertion that disclosure will 'reveal its sources and methods' in a matter now approximately thirty years old is without substance and is, indeed, the height of bureaucratic disingenuousness." The CIA appeals from this order.

A. FOIA Exemption 3

The FOIA gives members of the public access to documents held in government files. Every federal agency "upon any request for records which ... reasonably describes such records" must make the records "promptly available to any person." 5 U.S.C. § 552(a)(3). Nine categories of documents are exempted from this broad disclosure requirement.

Exemption 3 permits a federal agency to withhold matters that are:

(3) specifically exempted from disclosure by statute ... 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.

5 U.S.C. § 552(b)(3). Two questions need to be answered in determining whether Exemption 3 applies in a particular situation. CIA v. Sims, 471 U.S. 159, 167, 105 S.Ct. 1881, 1886, 85 L.Ed.2d 173 (1985). First, does the statute constitute a "statutory exemption to disclosure within the meaning of Exemption 3"? Second, is the requested information "included within" the statute's "protection"? Id.

The first question has already been answered affirmatively for present purposes. In Sims, the Supreme Court held that 50 U.S.C. § 403(d)(3), which provides that "the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure," is an Exemption 3 statute because it specifies the types of material to be withheld under subpart (B) of the Exemption. 471 U.S. at 167-68, 105 S.Ct. at 1886-87; accord Knight v. CIA, 872 F.2d 660, 663 (5th Cir.1989), cert. denied, 494 U.S. 1004, 110 S.Ct. 1296, 108 L.Ed.2d 474 (1990); Miller v. Casey, 730 F.2d 773, 777 (D.C.Cir.1984).

In answering the second question--whether the requested information is included within the statute's "protection"--this court has stated that,

once a court determines that the statute in question is an Exemption 3 statute, and that the information requested at least arguably falls within the statute, FOIA de novo review normally ends.

Aronson v. IRS, 973 F.2d 962, 965, 967 (1st Cir.1992).

The Supreme Court has said,

it is the responsibility of the Director of Central Intelligence, not that of the judiciary, to weigh the variety of complex and subtle factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the Agency's intelligence-gathering process.

Sims, 471 U.S. at 180, 105 S.Ct. at 1893. In the intelligence area, the Court has commented that judges "have little or no background in the delicate business of intelligence gathering" and may be unable to comprehend the significance of material that appears to be innocuous, but in fact can reveal a significant intelligence source or method. Id. at 176, 105 S.Ct. at 1891. Therefore, in determining whether withheld material relates to intelligence sources or methods, a court must "accord substantial weight and due consideration to the CIA's affidavits." E.g., Fitzgibbon v. CIA, 911 F.2d 755, 762 (D.C.Cir.1990); see Sims 471 U.S. at 170, 105 S.Ct. at 1888 ("Congress intended to give the Director of Central Intelligence broad power to protect the secrecy and integrity of the intelligence process").

We have examined the unredacted version of the December 22, 1961 memorandum. In our opinion, it is at very least "arguable" that...