Assassination Archives and Research Ctr. v. C.I.A., 02-5003.

• Decision Date: 08 July 2003
• Docket Number: No. 02-5003.,02-5003.
• Citation: 334 F.3d 55
• Parties: ASSASSINATION ARCHIVES AND RESEARCH CENTER, Appellant, v. CENTRAL INTELLIGENCE AGENCY, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

334 F.3d 55

ASSASSINATION ARCHIVES AND RESEARCH CENTER, Appellant, v. CENTRAL INTELLIGENCE AGENCY, Appellee.

No. 02-5003.

United States Court of Appeals, District of Columbia Circuit.

Argued March 18, 2003.

Decided July 8, 2003.

Appeal from the United States District Court for the District of Columbia (No. 99cv00525).

James H. Lesar argued the cause for the appellant.

G. Michael Harvey, Assistant United States Attorney, argued the cause for the appellee. Roscoe C. Howard, Jr., United States Attorney, and R. Craig Lawrence, Assistant United States Attorney, were on brief.

Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.

Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

The appellant, Assassination Archives and Research Center (AARC), brought suit under the Freedom of Information Act (FOIA or Act), 5 U.S.C. §§ 552 et seq., to compel disclosure by the Central Intelligence Agency (CIA or Agency) of a multivolume compendium of information on "Cuban Personalities" (Compendium) prepared by the Agency in 1962. The CIA withheld disclosure of the entire Compendium on the grounds that the documents contained in it are classified SECRET and that disclosure is exempt under the National Security Act of 1947, 50 U.S.C. § 403-3(c)(7). The district court upheld the Agency's decision, granting summary judgment in its favor. AARC v. CIA, 177 F.Supp.2d 1, 6-12 (D.D.C.2001).

AARC argues that the CIA failed to carry its burden to establish a FOIA exemption from disclosure and that, in any event, the Agency waived any exemption available under the Act because information regarding Cuban nationals had already been disclosed pursuant to the John F. Kennedy Assassination Records Collection Act (JFK Act), Pub.L. No. 102-526, § 2(b), 106 Stat. 3443 (1992) (codified at 44 U.S.C. § 2107 note). We reject AARC's arguments and instead affirm the district court.

I.

In February 1993, AARC filed a FOIA request with the CIA. It sought the release of the Compendium, a five-volume set of documents on Cuban personalities compiled in November 1962 by the CIA's Biographic Register, Office of Central Research. Initially, the CIA declined to waive copying fees — concluding that 5 U.S.C. § 552(a)(4)(A)(iii), which allows documents to be furnished at no charge or a reduced rate if the information sought is "likely to contribute significantly to public understanding of the operations and activities of the government," was not applicable — and AARC filed the instant lawsuit. The district court directed the CIA to waive copying fees associated with AARC's request.

The CIA then began processing AARC's request and, on March 21, 2000, informed AARC by letter that the Compendium was exempt from disclosure under Exemptions 1 and 3 of FOIA. 5 U.S.C. § 552(b)(1), (3).¹ AARC appealed the decision through the Agency review process but the Agency determined the appeal was moot because AARC had already initiated this litigation. The CIA subsequently moved for summary judgment, AARC, 177 F.Supp.2d at 3, supporting its motion with the declaration of Herbert Briick, the Information Review Officer for the CIA Directorate of Intelligence, who explained that the Compendium represents a "compilation of personality profiles of, or biographic data on, a number of Cuban individuals" that includes non-classified biographies, which are as a general rule based on "open source information," although profiles that are marked SECRET are so identified because they rely on "information collected clandestinely." Declaration of Herbert Briick at ¶ ¶ 14, 19 (July 5, 2000) (First Briick Decl.), App. 34, 36-37. Notwithstanding the nature of the sources from which the contents of the Compendium derive varies, the entire Compendium was classified, Briick declared, because of the purpose behind the Compendium and the fact that disclosure of information might reveal intelligence methods and sources. Id. at ¶ 15, App. 34-35.² As a result, the Agency argued that the Compendium qualified for nondisclosure under both Exemptions 1 and 3 of FOIA, 5 U.S.C. § 552(b)(1), (3).

On the other hand, AARC offered evidence rebutting the CIA's exemption claims and, in addition, asserted that the CIA had waived any FOIA exemption with respect to at least some of the material contained in the Compendium. AARC, 177 F.Supp.2d at 7-8. Specifically, AARC proffered the declaration of John M. Newman, an associate professor at the University of Maryland, who opined that the CIA's position on nondisclosure was erroneous because similar, if not identical, information had already been disclosed pursuant to the JFK Act. Id.; Declaration of John M. Newman at ¶ ¶ 7-9 (Sept. 24, 2000) (Newman Decl.), App. 53-54. According to Newman, the CIA's national security interest in preventing disclosure of information contained in the Compendium was minimal. Nonetheless, the district court concluded, first, that the Agency was entitled to summary judgment on both exemptions and, second, that the Agency had not waived its claim to exemptions. AARC, 177 F.Supp.2d at 5-12. AARC then filed the instant appeal.

II.

We review the district court's grant of summary judgment de novo. Summers v. Dep't of Justice, 140 F.3d 1077, 1079 (D.C.Cir.1998). In the FOIA context, de novo review requires the court to "`ascertain whether the agency has sustained its burden of demonstrating that the documents requested are not "agency records" or are exempt from disclosure under the FOIA.'" Id. at 1080 (quoting Gallant v. NLRB, 26 F.3d 168, 171 (D.C.Cir.1994) (internal citations omitted)).

The FOIA requires every federal agency, upon request, to make "promptly available to any person" any "records" so long as the request "reasonably describes such records." 5 U.S.C. § 552(a)(3). The Act "reflects a general philosophy of full agency disclosure," Dep't of Defense v. FLRA, 510 U.S. 487, 494, 114 S.Ct. 1006, 1011-12, 127 L.Ed.2d 325 (1994) (internal quotations omitted), but also provides for several exemptions under which an agency may deny disclosure of the requested records. 5 U.S.C. § 552(b). The exemptions — there are nine — reflect the "Congress's recognition that the release of certain information may harm legitimate governmental or private interests." Summers, 140 F.3d at 1080. If an agency invokes an exemption, it bears the burden of establishing the applicability of the claimed exemption. Summers, 140 F.3d at 1080. And, even if an agency establishes an exemption, it must nonetheless disclose all reasonably segregable, nonexempt portions of the requested record(s). 5 U.S.C. § 552(b).

Here, section 103(c)(7) of the National Security Act of 1947, 50 U.S.C. § 403-3(c)(7), which directs the CIA Director to "protect intelligence sources and methods from unauthorized disclosure," is a statute that shields qualifying information from disclosure under the Act because it meets the two criteria of Exemption 3. CIA v. Sims, 471 U.S. 159, 178-79, 105 S.Ct. 1881, 1892-93, 85 L.Ed.2d 173 (1985); see supra note 1 (setting forth Exemption 3). We held that section 102(d)(3) qualifies under Exemption 3 if the records sought "can reasonably be expected to lead to unauthorized disclosure of intelligence methods and sources." Gardels v. CIA, 689 F.2d 1100, 1103 (D.C.Cir.1982).

The Agency, through Briick, explained that disclosure of the contents of the Compendium, which includes the "pool in 1962 of potential intelligence sources or targets of CIA intelligence collection," would "reveal those individuals in whom CIA had an intelligence interest and would provide leads to identifying the intelligence sources who or which acquired the information." First Briick Decl. at ¶ ¶ 15, 19, App. 34, 37; id. at ¶ ¶ 20-38, App. 37-49. In view of the weight we give the Agency's judgment as to the effect of disclosure, Sims, 471 U.S. at 174-75, 179, 105 S.Ct. at 1890-91, 1893; Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C.Cir.1990) ("The assessment of harm to intelligence sources, methods and operations is entrusted to the Director of Central Intelligence, not to the courts."); see Afshar v. Dep't of State, 702 F.2d 1125, 1133 (D.C.Cir.1983) ("[U]nless it senses bad faith or a general sloppiness in the declassification or review process, a court will feel with special urgency the need to accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record...." (internal quotations omitted)); see also Goldberg v. Dep't of State, 818 F.2d 71, 78 (D.C.Cir.1987) ("[We] accord those affidavits `substantial weight,' considering the agency's unique insights into what adverse [e]ffects might occur as a result of public disclosure." (internal quotations omitted)), cert. denied, 485 U.S. 904, 108 S.Ct. 1075, 99 L.Ed.2d 234 (1988), we have no trouble concluding that the Agency may withhold the contents of the Compendium pursuant to Exemption 3 of FOIA.³

Indeed, AARC does not dispute that the Agency could withhold the Compendium under Exemption 3 but for the earlier disclosures under the JFK Act. AARC argues that those disclosures have either (1) already revealed all intelligence sources and methods used in the Compendium, thereby making the CIA's invocation of Exemption 3 meritless or (2) effected a waiver of the Exemption with respect to at least some of the information in the Compendium.

On AARC's first contention, we side with the Agency. The Agency has explained that notwithstanding the JFK Act disclosures, releasing the Compendium would lead to the revelation of intelligence sources and methods. AARC maintains that:

the CIA has released thousands of pages of records that reveal the Agency's use of mail intercepts, phone intercepts, penetrations of Cuban diplomatic missions and other sources and methods used to collect information on these Cuban personalities [and that] [i]n many instances, the CIA cryptonyms for these operations already have been released too,...