Allen v. Department of Defense, Civ. A. No. 81-2543.
| Decision Date | 26 November 1986 |
| Docket Number | Civ. A. No. 81-2543. |
| Citation | 658 F. Supp. 15 |
| Parties | Mark A. ALLEN, Plaintiff, v. DEPARTMENT OF DEFENSE, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
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Jame H. Lesar, Washington, D.C., for plaintiff.
Stephen E. Hart, Dept. of Justice, Steven R. Ross, U.S. House of Representatives, Washington, D.C., for defendants.
This matter came before the court on cross motions for partial summary judgment by plaintiff and defendant Central Intelligence Agency ("CIA"), and on plaintiff's Motion for Appointment of a Special Master or Historical Review Committee. For the reasons set forth below, defendant's motion is granted and plaintiff's motion is denied.
This Freedom of Information Act ("FOIA") case began some six years ago when plaintiff Mark Allen filed a FOIA request with the CIA, Defense Intelligence Agency, and others. Plaintiff is a researcher seeking information related to the assassination of President John F. Kennedy. Plaintiff's FOIA request was for "all correspondence or records of communications between your agency and the U.S. House Select Committee on Assassination's investigation into the assassination of President John F. Kennedy."
The CIA's original contention that all materials requested were exempt from disclosure under FOIA as congressional, not agency, records was rejected by this court. Allen v. Department of Defense, 580 F.Supp. 74 (D.D.C.1983). The bulk of the documents which make up plaintiff's request, CIA files that preexisted the House Select Committee's investigation, were there held to be non-exempt as congressional documents. Id.
In the next stage of this lengthy litigation, plaintiff was ordered to designate 350 documents from among the 5,000 that the CIA had finished processing, and the CIA was ordered to create a Vaughn index for those 350 documents. Allen v. Dep't of Defense, No. 81-2543, Order (D.D.C. Apr. 2, 1986). See Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973). Plaintiff and defendant have each moved for partial summary judgment based on the Vaughn index and accompanying affidavits filed by defendant the CIA.
Some general principles are relevant to the court's review of defendant's Vaughn index and the cross motions based upon it. First, Vaughn v. Rosen makes clear that the agency bears the burden of establishing that the material at issue fits within a claimed FOIA exemption. 484 F.2d 820. The court, in considering defendant's claimed exemptions, must undertake a de novo review, 5 U.S.C. § 552(a)(4)(B), but in so doing must accord substantial weight to agency affidavits. See Hayden v. National Security Agency, 608 F.2d 1381, 1984 (D.C.Cir.1979); Ray v. Turner, 587 F.2d 1187, 1193-4 (D.C.Cir.1978). It is also clear that an agency may meet its burden under the FOIA by affidavits or declarations, and that:
... if the affidavits contain information of reasonable detail, sufficient to place the documents within the exemption category, and if the information is not challenged by contrary evidence in the record or evidence of agency bad faith, then summary judgment for the Government is appropriate without an in camera review of the documents.
Lesar v. U.S. Department of Justice, 636 F.2d 472, 481 (D.C.Cir.1980). See also Meeropol v. Meese, 790 F.2d 942, 958 (D.C. Cir.1986). With these principles in mind, consideration of the particular exemptions at issue is now possible.
The CIA relies principally on four FOIA exemptions in withholding documents in part and in their entirety. Each category of exemption will be addressed separately.
FOIA Exemption (b)(1) permits an agency to withhold materials that 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). Pursuant to this exemption, the CIA has withheld many of the documents that plaintiff requested. The CIA has submitted the Declaration of Louis J. Dube in support of its claimed exemptions. Mr. Dube is an Information Review Officer for the Directorate of Operations, CIA, whose qualifications to review the records withheld in this case are not challenged by plaintiff. See Declaration of Louis J. Dube ("Declaration") ¶ 1, 9.
The U.S. Court of Appeals for the District of Columbia Circuit has held that "the Executive Order in effect at the time the classifying individual acted states the relevant criteria for purposes of determining whether Exemption 1 properly was invoked." Meeropol v. Meese, 790 F.2d 942, 959 (D.C.Cir.1986), quoting Lesar v. Dep't of Justice, 636 F.2d at 480. Mr. Dube, who has original classification authority at the TOP SECRET level, Declaration ¶ 9, reviewed the original classifications of the documents. He determined that the original classifications were proper, and in some instances determined that those documents not originally marked as classified should be so marked. Id. Mr. Dube conducted his final review under Executive Order 12356, 47 Fed.Reg. 14,874 (1982), which became effective on August 1, 1982. It is thus the criteria of that Executive Order which the court must apply in evaluating the propriety of the claimed exemptions that the CIA asserts. Meeropol, supra, 790 F.2d at 959; Lesar, supra, 636 F.2d at 480.
In claiming exemptions under FOIA (b)(1), the CIA relies on three provisions of Executive Order 12356 that make certain information classifiable if it, "by itself or in the context of other information, reasonably could be expected to cause damage to the national security." Executive Order 12356, § 1.3(b). The categories of information relied upon are:
In some instances, a document has been withheld based upon more than one exemption.
The Dube Declaration discusses these categories of information in some detail, explaining in general terms why it is necessary to the national security to withhold information that fits within these provisions. In addition, for each document for which the CIA claims a (b)(1) exemption based on Executive Order 12356, the Dube Declaration explains (to the extent possible without revealing the withheld information) how and why that document in particular is properly exempt under FOIA exemption (b)(1). This level of detail is sufficient for the court to perform its de novo review of defendant's exemption (b)(1) claims. Hayden v. National Security Agency, 608 F.2d 1381, 1387 (D.C.Cir.1979).
Much of the information that defendants have withheld is information relating to intelligence sources. Executive Order 12356 states that "unauthorized disclosure of foreign government information, the identity of a confidential foreign source, or intelligence sources or methods is presumed to cause damage to the national security." § 1.3(c). Defendants support this presumption that revelation of the identities of their intelligence sources, or of information leading to their identities, would cause damage to the national security, with several arguments. First, revelation of a source's identity could lead to embarrassment of or reprisals toward the source or his family or friends. Secrecy is thus a means of protecting existing intelligence sources. Declaration ¶ 14. Second, "individuals are understandably reluctant to cooperate with the CIA or with American intelligence unless they can be absolutely certain that the fact of their cooperation will forever remain secret." Id. Thus, the CIA's guarantee of secrecy serves as the quid pro quo for intelligence information that would otherwise be unobtainable. The CIA would find it difficult or impossible to recruit new intelligence sources absent such guarantees, made and then kept by the CIA. Third, the CIA points out that its adversaries could use the disclosure of a source's identity to their advantage, and to the detriment of the national security. The identity of an intelligence source could be a "tip-off" to "what areas the CIA is interested in and upon which it is focusing its resources." Declaration ¶ 16. For all these reasons, the CIA has determined that release of source identities, or of information which reasonably would or could be expected to lead to the identification of an intelligence source, would cause damage to the national security.
The U.S. Supreme Court, in C.I.A. v. Sims, 471 U.S. 159, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985), upheld these reasons for withholding material, and spoke in emphatic terms of the "broad power" that the Director of the CIA has to determine what information is likely to lead to the disclosure of the identity of an intelligence source. Id. at 1888, 1890. While the Sims case was concerned with interpreting the language of the National Security Act of 1947, 50 U.S.C. § 403(d)(3), the relevant language in that Act is virtually identical to that in Executive Order 12356, "protecting intelligence sources and methods from unauthorized disclosure." Compare Executive Order 12356, 47 Fed.Reg. 14,874 (1982). In addition, in the instant case the CIA concomitantly relies on the National Security Act, 50 U.S.C. § 403(d)(3), and Executive Order 12356 in withholding most of the material sought by plaintiff. Thus the discussion and conclusions of the Supreme Court in Sims are clearly determinative of this case.
Plaintiff's Opposition to Defendant's Motion for Summary Judgment focuses principally on defendant's FOIA (b)(1) exemption claims. Initially, plaintiff had contended that the reclassification of the withheld documents under...
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