Fensterwald v. US CENT. INTELL. AGCY., Civ. A. No. 75-897.

• Citation: 443 F. Supp. 667
• Decision Date: 22 December 1977
• Docket Number: Civ. A. No. 75-897.
• Parties: Bernard FENSTERWALD, Jr., Plaintiff, v. UNITED STATES CENTRAL INTELLIGENCE AGENCY, Defendant.
• Court: U.S. District Court — District of Columbia

443 F. Supp. 667

Bernard FENSTERWALD, Jr., Plaintiff, v. UNITED STATES CENTRAL INTELLIGENCE AGENCY, Defendant.

Civ. A. No. 75-897.

United States District Court, District of Columbia.

December 22, 1977.

Bernard Fensterwald, Jr., pro se.

Michael J. Ryan, Asst. U. S. Atty., Washington, D. C., for defendant.

MEMORANDUM

SIRICA, District Judge.

This Freedom of Information Act (FOIA), 5 U.S.C.A. § 552 (1977) suit¹ aptly illustrates the problems of proof and procedure confronting trial courts in determining whether claims of exemption are factually supported. The difficulty arises chiefly because, unlike in traditional litigation, the outcome of FOIA litigation turns on narrowly drawn factual determinations that are not the product of adversarial give and take. In traditional litigation, adversaries are equally in a position to get at the basic facts that are necessary for resolving contested issues. But this balanced situation simply does not exist in the FOIA context. FOIA litigation, in sharp contrast to other cases, poses a situation of severe adversarial imbalance. As the Court of Appeals stated in Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820 (1973), "only one side to the controversy (the side opposing disclosure) is in a position confidently to make statements categorizing information." Id. at 343, 484 F.2d at 823-24. And as the Court further noted, "This factual characterization may or may not be accurate. It is clear, however, that plaintiff cannot state that, as a matter of his knowledge, this characterization is untrue." Id.

The difficulties stemming from the adversarial imbalance inherent in FOIA suits are heightened when the policies of the Freedom of Information Act are taken into account. Running through the FOIA is the broad and insistent objective of rooting out governmental secretiveness by mandating prompt disclosure of requested information unless the particular items being sought are shown to come within the terms of restrictively drawn exceptions. Yet despite this emphasis on disclosure, the nature of FOIA litigation paradoxically makes adverse parties dependent on the withholding authority for the very information they need to dispute the asserted claims of exemption.

To correct this inherent inconsistency and to restore some measure of adversarial proceeding to FOIA cases, the courts have adopted the practice of requiring the withholding agency to furnish particularized justifications to support asserted claims of exemption. Vaughn, supra, at 346-47, 484 F.2d at 826-27.² This approach is designed to make sure that adversary parties will obtain at least a sketch of the factual information necessary for contesting claimed exemptions. But this procedure is not altogether satisfactory. Requiring the withholding authority to come forward with adequately detailed and particularized justifications runs the risk of requiring the agency to disclose the very information that is claimed to be protected. This danger is particularly grave in instances where the requested material is withheld on the basis of the national security exemption.³ The FOIA does not afford astute litigants a license to use the indexing and justification procedure in order to discern the contents of potentially exempt materials.

One way to overcome this difficulty is to employ the procedure of in camera examination. The FOIA expressly provides for in camera inspection of withheld items to assess whether claims of exemption are accurate.⁴ Yet in camera review, like the indexing and justification method of proceeding, is not without inherent defects. One shortcoming implicit in the procedure lies in the fact that in camera inspection is generally conducted⁵ "without the benefit of criticism and illumination by a party with the actual interest in forcing disclosure." Vaughn, supra, at 345, 484 F.2d at 825. A more glaring problem results from the fact that in camera examination entails an awesome "investment of judicial energy" where numerous documents are subject to dispute. Id. This problem is compounded where the particular items being withheld are claimed to be protected by a variety of different statutory exemptions.

The difficulties associated with in camera review were recently recognized in Weissman v. CIA, 184 U.S.App.D.C. 117, 565 F.2d 692 (1977). In that case, the Court of Appeals for this jurisdiction upheld a decision denying plaintiff's request for in camera proceedings. Plaintiff had requested the trial court "to check the truthfulness of Agency claims under each exemption, and to conduct a line-by-line analysis of documents withheld under each exemption to cull out any non-exempt material." Id., at 121, 565 F.2d at 696. But the Court of Appeals held that intensive review of that kind is to be the exception rather than the rule in national security cases. As the Court stressed: "neither the legislative history of the FOIA, nor relevant court decisions, have indicated that it is appropriate for the District Courts to undertake line-by-line analysis of agency records in each national security case." Id., at 122, 565 F.2d at 697. Only where "the record is vague" or where the agency's claims are "sweeping" or "suggestive of bad faith" is in camera inspection required "to look for segregable non-exempt matter." Id., at 123, 565 F.2d at 698.

The meaning of Weissman is plain. Weissman counsels strongly against conducting in camera examination for the purpose of winnowing out potentially non-exempt tidbits from the documents of which they are part. But by the same token, Weissman does not rule out the procedure for reviewing a small yet representative sample of withheld materials in order to determine whether the agency's sketchy justifications are substantially overstated. The benefits of this limited and narrowly directed kind of examination are obvious and compelling. Foremost is the fact that this kind of limited review permits the court to test the validity of the agency's general theories of exemption by means of a sampling technique without requiring the agency to furnish highly detailed justifications at the risk of exposing potentially protected national security information. Furthermore, once the review is completed, the Court will then be in a position to extrapolate its conclusions from the representative sample to the larger group of withheld materials.

In the Court's view, this procedure commends itself for application in this case. Where, as here, the agency has tendered only skeletal justifications to support broad claims of exemption and where, as in this case, the withholding authority runs the distinct risk of compromising protected national security secrets if required to particularize its justifications in greater detail, the prudent course is to make a limited in camera review of a sampling of the withheld items.⁶ Proceeding in this way will allow the fact-finder to render an informed judgment regarding the agency's general claims of exemption.⁷

An order in accordance...