American Friends Service Committee v. Department of Defense through Defense Logistics Agency, 86-1662

• Decision Date: 19 October 1987
• Docket Number: No. 86-1662,86-1662
• Citation: 831 F.2d 441
• Parties: AMERICAN FRIENDS SERVICE COMMITTEE, Appellant, v. DEPARTMENT OF DEFENSE operating through the DEFENSE LOGISTICS AGENCY, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 441

831 F.2d 441

56 USLW 2278

AMERICAN FRIENDS SERVICE COMMITTEE, Appellant, v. DEPARTMENT OF DEFENSE operating through the DEFENSE

LOGISTICS AGENCY, Appellee.

No. 86-1662.

United States Court of Appeals, Third Circuit.

Argued April 10, 1987.

Decided Oct. 19, 1987.

Julie Shapiro (argued), Maguigan, Shapiro, Engle & Tiryak, David Rudovsky, Kairys & Rudovsky, Philadelphia, Pa., for appellant.

Catherine Votaw (argued), Asst. U.S. Atty., Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Chief of Appeals, Philadelphia, Pa., for appellee.

Before SLOVITER, BECKER and GARTH, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

This case concerns a Freedom of Information Act request by the American Friends Service Committee (AFSC) addressed to the Department of Defense (DoD) pursuant to 5 U.S.C. Sec. 552 (1982). DoD denied the request, invoking two exemptions in support of its denial. The first, contained in 5 U.S.C. Sec. 552(b)(1), is the national security exemption. The second, contained in id. Sec. 552(b)(3), concerns material whose withholding has been authorized by another statute. In this case the other statute is 10 U.S.C.A. Sec. 130(a) (West Supp.1987), which authorizes the Secretary of Defense to withhold

technical data with military or space application ... if such data may not be exported lawfully outside the United States without an approval, authorization, or license under the ... Arms Export Control Act.

AFSC brought suit to challenge the DoD's denial of its request. On the strength of three affidavits submitted by DoD, and over a single affidavit submitted by an expert on behalf of the AFSC, the district court granted summary judgment in favor of DoD. AFSC appeals.

We agree with DoD on a number of important points--the validity of its "compilation" theory, the inapplicability to this case of the doctrine of segregability, and the standard of review, which requires that considerable deference be given to DoD's judgments regarding national security. We nonetheless vacate and remand so that the district court can resolve factual disputes in the record. We begin by explaining the nature of the documents sought and withheld. We then turn to the merits of the bases for withholding.

I. THE DOCUMENTS AT ISSUE

AFSC seeks the disclosure of a series of documents called Technical Abstract Bulletins, or TABs. TABs, which are published biweekly, contain the titles of research reports prepared for DoD by DoD scientists, engineers and contractors. The reports themselves are released to the public unless they must be classified. The first section of the TABs contain

citations to every classified and/or limited distribution technical report by accession number, corporate author, subject category designators, ... title descriptive note, originator/sponsor, report numbers, author, date, number of pages, project/task numbers, contract number, report classification, distribution list, descriptors of the report's contents, and an abstract or summary of the report's contents. The second section of each TAB consists of eight indexes to the technical reports described in the first section, including indexes by subject category ..., subject and author.

Appellee's Br. at 5. The TABs do not contain entries for reports classified as Top Secret; neither do they contain entries if the individual entry itself contains classified information. Appellant's Br. at 9.

On the basis of his review of four TABs which have been released, AFSC's expert opines that "very few reports are summarized." Johnson Aff. at 2 par. 5, appendix at A-152. But one of DoD's experts, who reviewed all of the TABS generated in that year, appears to say that 74% of all entries in 1983 TABs contain abstracts. Robey Aff. at par. 4, appendix at A-148. We return below to this difference of opinion.

II. WITHHOLDING TO PROTECT NATIONAL SECURITY:

EXHIBIT (b)(3)

A. The Compilation Theory

The national security exemption is invoked here on the theory that, while the individual entries are not classified or (therefore) withholdable, the aggregation is withholdable on the "compilation" theory.

The national security exemption concerns matters 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. Sec. 552(b)(1) (1982). In conformity with this requirement, Executive Order 12,356 provides for the classification of information which "either by itself, or in the context of other information reasonably could be expected to cause damage to national security." While AFSC does not contest the validity of the compilation theory, ¹ it does argue that DoD is obliged to produce those portions of the requested material which can be segregated from the information whose disclosure would damage the national security. Apart from its segregability contention, AFSC also contends that in light of the factual record, the compilation theory does not apply here because DoD's judgment that national security "reasonably could be expected to" be damaged cannot be respected.

B. Deference Owed DoD's Judgment On Damage to National Security

The standard to be applied in assessing DoD's decision to withhold has been described as follows by the District of Columbia Circuit:

Because " '[e]xecutive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects [sic] might occur as a result of public disclosure,' " however, courts are required to " 'accord substantial weight to an agency's affidavit concerning the details of the classified status of a disputed record.' " Salisbury v. United States, 690 F.2d 966, 970 (D.C.Cir.1982) (quoting S.Rep. No. 1200, 93d Cong. 2d Sess. 12 (1974), U.S.Code Cong. & Admin.News, 1974 pp. 6267, 6290). Accordingly, an agency is entitled to summary judgment if its affidavits "describe the withheld information and the justification for withholding with reasonable specificity, demonstrating a logical connection between the information and the claimed exemption," id. at 970, and "are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981).

Abbotts v. Nuclear Regulatory Commission, 766 F.2d 604, 606 (D.C.Cir.1985). We adopt that standard here.

DoD's concern here is that, by looking at all of the TAB entries, a person could draw useful inferences about the direction of U.S. research into weapons or defensive technologies. AFSC responds that, when a project begins to approach fruition it will stop appearing in the TABs, as it will if DoD concludes that the project is not worthy of further exploration. DoD acknowledges this, but contends that the disappearance of a given project from the TABs will still give those seeking such information help in ascertaining what projects should be the target for their own intelligence work.

AFSC's rejoinder to this contention is that

one would have no way of determining whether [the subject's disappearance from the TABs] was because research had been terminated (or for what reasons), or because it had reached fruition, so that further reports were classified "Top Secret" and/or their titles were themselves classified.

Appellant's Br. at 11.

We do not find this a satisfactory rejoinder. Even if a hostile nation could not tell which of the two alternatives was correct, it would be able to infer that one of them was. This would enable it to concentrate its intelligence resources on those areas which were likely to be most important.

C. Segregability

AFSC correctly observes that, in response to an FOIA request, an agency must disclose segregable portions of otherwise nondisclosable material. See Founding Church of Scientology v. Bell, 603 F.2d 945 (D.C.Cir.1979). AFSC goes on to argue, however, that the segregability doctrine requires DoD to disclose all material that is not itself classified. Many of the titles contained in the TABS are not classified, and AFSC concludes that DoD must disclose those titles. We believe that acceptance of the compilation theory requires that this argument be rejected.

By invoking the compilation theory, DoD argues that material which could not harm the national security when disclosed by itself can be withheld if its disclosure--along with other material whose disclosure alone would also not harm the national security --might endanger the national security. See Halperin, 452 F.Supp. at 50. AFSC's insistence that everything which is not classified must be disclosed essentially ignores the compilation theory because it ignores the danger to which the compilation theory points--that information harmless in itself might be harmful when disclosed in context. The fact that the material withheld is not itself classified does not in turn require disclosure if the compilation theory is invoked, because the theory itself is only relevant when the material withheld is not classified. If the material were classified it could be withheld without reference to the compilation theory.

The compilation theory can be based on a number of different problems which might be caused by the publication of unclassified data. Neither plaintiff nor defendant has explored this issue, but we find it useful to separate out the problems we can think of in order to explain our holding and to give direction to the district court on remand. While we attempt here to define the different problems to which the compilation theory is a response, we are far from certain that our list is exhaustive.

First, as Halperin suggests, the sequence in which documents were generated might reveal damaging information which the documents themselves do not disclose. Revealing the whole series, therefore, complete with the dates on which the individual documents...