Afshar v. Department of State

• Decision Date: 15 March 1983
• Docket Number: No. 81-1299,81-1299
• Citation: 226 U.S.App.D.C. 388,702 F.2d 1125
• Parties: Nassar AFSHAR, Appellant, v. DEPARTMENT OF STATE, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1125

702 F.2d 1125

226 U.S.App.D.C. 388

Nassar AFSHAR, Appellant, v. DEPARTMENT OF STATE, et al.

No. 81-1299.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 22, 1982.

Decided March 15, 1983.

Appeal from the United States District Court for the District of Columbia (D.C. Civil No. 76-01421).

Susan W. Shaffer, Washington, D.C., with whom Mark H. Lynch, Washington, D.C., was on the brief, for appellant.

Alfred Mollin, Atty., Dept. of Justice, Washington, D.C., with whom Charles F.C. Ruff, U.S. Atty., Washington, D.C., at the time of oral argument, and Leonard Schaitman and Marc Johnston, Attys., Dept. of Justice, Washington, D.C., were on the brief, for appellees; Lee S. Strickland, Atty., C.I.A., Arlington, Va., also entered an appearance for appellee.

Before ROBINSON, Chief Judge, DAVIS ^*, Circuit Judge for the United States Court of Appeals for the Federal Circuit, and McGOWAN, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge McGOWAN.

McGOWAN, Senior Circuit Judge:

In this appeal arising under the Freedom of Information Act ("FOIA" or "the Act"), the appellant raises four substantive issues: (1) whether the Act allows the government agencies herein to withhold information under exemptions 1 and 3 where there have been prior disclosures of similar information; (2) whether the information withheld under exemption 1 was properly classified in light of the agencies' failure to balance the public interest in disclosure against the government's need for secrecy; (3) whether information can be withheld under exemption 3 of the Act if it is not properly classified under exemption 1; and (4) whether certain memoranda recommending agency action can be withheld under exemption 5 of the Act if the recommendations were actually adopted as the basis for agency action.

The District Court, granting the defendant appellees' motion for summary judgment, ruled in the affirmative on all four issues. We affirm as to the first, vacate the District Court's ruling on the second as moot in light of the issuance of a new Executive Order governing classification, decline to reach the third because of our decisions on the first and second, and reverse as to the fourth. We also reject plaintiff's contention of reversible procedural error in the court below, but remand for further factfinding as to six deletions with regard to which the government admits error and as to the two portions of documents withheld under exemption 5.

I

Nassar Afshar is an Iranian-born United States citizen who was, when this action began, editor of the Iran Free Press, a newspaper published in Washington, D.C., and chairman of the Committee for Free Iran, which published the newspaper. Afshar was a prominent critic of the former Shah of Iran. ¹ On March 27, 1975, Afshar submitted requests under the Freedom of Information Act, 5 U.S.C. Sec. 552, to the Department of State, the CIA, and the Department of Justice for all documents generated since January 1970 pertaining to him or his activities on the newspaper or the Committee. The agencies released a total of thirty documents, some with deletions, and withheld a number of others. J.A. 13-17. Afshar restated his requests through counsel in May 1976, expanding them to include pre-1970 documents. On July 30, 1976, after the agencies had failed satisfactorily to respond to his renewed requests and appeals therefrom, Afshar filed the present action. ²

Ultimately, the State Department, CIA, and FBI located numerous other documents within the scope of Afshar's requests and released many of them, some with deletions. The agencies withheld a number of others, claiming a variety of exemptions from the Freedom of Information Act's mandatory disclosure provisions. Pursuant to Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974), the agencies produced indices in which each deletion or withholding was placed into a category of information; the withholding of each category of information was justified in accompanying affidavits. At issue in this appeal are deletions in or withholding of eighty-six documents that fall into eight categories as to which the government claims exemptions 1, 3, or 5 of the Act, 5 U.S.C. Sec. 552(b)(1), (3), (5). See Brief for Plaintiff-Appellant at 6-9. ³

The defendants subsequently filed a motion for summary judgment in the District Court. After a hearing on the motion, the court on October 24, 1980, granted summary judgment for defendants on all issues. J.A. 283. The court ruled that the information withheld under exemption 1 was properly classified and that publicly circulating reports or information "cannot be given any degree of import they do not now possess through the vehicle of official executive disclosure." J.A. 285-86. The court emphasized the "extreme sensitivity of relations between the present government of Iran and the United States," and the independent need not to jeopardize the confidence of other governments about this nation's ability to keep secrets. See J.A. 286-87. It found that the balancing provision of the relevant Executive Order was "simply a statement of the authority of designated Executive Branch officials, under circumstances to be determined by them, to effect an authorized disclosure of information that would otherwise maintain its classified status." J.A. 290. The exercise of this authority, the court held, is left to the unreviewable discretion of the Executive. J.A. 290-91. Finally, the court held that exemptions 1 and 3 are "independent exemptions," J.A. 291, and that release of the information withheld under exemption 5 "would reveal executive, predecisional advisory communications which would serve to injure the consultative functions of government," J.A. 287. Plaintiff's motion for reconsideration was denied, and he appealed to this court.

II

Plaintiff's substantive arguments are aimed at obtaining not immediate release of the disputed documents but rather a remand so that the government may provide a more particularized showing that the information is in fact exempt from FOIA. We consider each of plaintiff's arguments below in the order they are raised in the briefs.

A. Prior Release of Similar Information

Plaintiff objects to the withholding of certain information under exemptions 1 and 3 of the Act, because information fitting the defendants' descriptions of the withheld information has already been released to the public.

Exemption 1 exempts information that is "(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) [is] in fact properly classified pursuant to such Executive order." 5 U.S.C. Sec. 552(b)(1). At the time the government reviewed the information here, the relevant Executive Order was E.O. 12,065, 3 C.F.R. 190 (1979) (revoked 1982). That Order provided, inter alia, that certain categories of information could be classified if unauthorized disclosure of the information "reasonably could be expected to cause at least identifiable damage to the national security." Id. Sec. 1-302, 3 C.F.R. at 193. ⁴

Exemption 3 excludes from FOIA matters that are specifically exempted from disclosure by certain statutes. 5 U.S.C. Sec. 552(b)(3). ⁵ In this case, the government claims that 50 U.S.C. Sec. 403(d)(3) authorizes the withholding of the information at issue. That section provides, inter alia, that "the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure." Exemption 3 is claimed only by the CIA, and by the FBI as to information supplied to it by the CIA.

The logic of plaintiff's argument is that release of information cannot be expected to cause damage to the national security or disclose intelligence sources and methods if the information is already publicly known. Since it is impossible to tell from the government's affidavits how the information withheld here is different from that already released, the argument goes, the government should be compelled to show how the withheld information is both different from and more sensitive than the information already released. See Brief for Plaintiff-Appellant at 16; Reply Brief for Plaintiff-Appellant at 4.

A number of courts have shown a willingness to accept the argument that publicly known information cannot be withheld under exemptions 1 and 3. See, e.g., Founding Church of Scientology v. NSA, 610 F.2d 824, 831-32 (D.C.Cir.1979) (suppression of "well publicized" information would frustrate policies of Act without advancing countervailing interests); Lamont v. Department of Justice, 475 F.Supp. 761, 772 (S.D.N.Y.1979) (Weinfeld, J.) (the "sunshine" purposes of FOIA would be thwarted if information remained classified after it had been "specifically revealed to the public"); see also Military Audit Project v. Casey, 656 F.2d 724, 741-45 (D.C.Cir.1981) (concluding that precise information withheld had not been previously revealed).

These courts have made clear that, while it is generally true that the government bears the burden of proving that its withholding of information is justified by one or more of the Act's exemptions, 5 U.S.C. Sec. 552(a)(4)(B), a plaintiff asserting a claim of prior disclosure must bear the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld. See, e.g., Military Audit Project, 656 F.2d at 741-45 (discussing only the publications cited by plaintiffs); Lamont, 475 F.Supp. at 772 & n. 43 (otherwise government's task would be "virtually limitless").

While courts have recognized the logic of plaintiff's argument, however, FOIA requesters in plaintiff's position face substantial practical difficulties in using it to force the government to release further information. The Freedom of Information Act...