Fitzgibbon v. C.I.A.
| Decision Date | 14 August 1990 |
| Docket Number | 89-5214,Nos. 89-5213,s. 89-5213 |
| Parties | Alan L. FITZGIBBON, Appellant, v. CENTRAL INTELLIGENCE AGENCY, et al. Alan L. FITZGIBBON v. CENTRAL INTELLIGENCE AGENCY, et al., Appellants. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Stephen M. Cutler, with whom Stephen P. Doyle was on the brief, for appellant in No. 89-5213 and appellee in No. 89-5214.
Freddi Lipstein, Atty., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, were on the brief, for appellees in No. 89-5213 and appellants in No. 89-5214. Sharon Cohen, Asst. U.S. Atty., also entered an appearance for appellees.
Before RUTH BADER GINSBURG, D.H. GINSBURG, and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
Jesus de Galindez, a Basque exile and a critic of the Trujillo regime in the Dominican Republic, was last seen outside a New York City subway station in 1956. Thereby hangs a lengthy tale. For the reasons stated below, we conclude that the defendant agencies prevail both as appellees and cross-appellants in these Freedom of Information Act cases. We therefore affirm in part, reverse in part, and remand to the District Court with instructions to dismiss.
Alan Fitzgibbon is an historian studying the disappearance (and presumed death) of Jesus de Galindez. In December of 1974, Fitzgibbon filed requests with the Central Intelligence Agency ("CIA" or "the Agency") and the Federal Bureau of Investigation ("FBI" or "the Bureau") pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552 (1988), for information those agencies possessed concerning Galindez. By the end of 1978, the CIA had identified some 551 documents that were responsive to Fitzgibbon's request. Twenty-one of these documents were released in their entirety; the CIA withheld the remaining documents in whole or in part, citing FOIA exemptions 1, 3, and 6. 1 The FBI referred to the CIA some 376 documents that either contained CIA documents or had originated with the Agency. The CIA determined that most of these referred documents also fell within exemptions 1, 3, and 6. The Bureau also withheld certain documents under exemption 7(C). 2
In April of 1979, Fitzgibbon filed this lawsuit, seeking release of the withheld materials. The District Court ordered the defendants to submit a Vaughn index, which they did. See Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973) (), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). In April of 1981, the District Court denied the agencies' motion for summary judgment, found that the justifications in the public Vaughn index were insufficient, and selected 89 documents as to which the CIA and FBI were to submit in camera affidavits setting forth "all facts relevant to the claimed exemptions from disclosure with as much specificity as possible." Mem.Op. of 10 February 1981 at 8, JA at 1115.
The District Court issued its memorandum and order in November of 1983. See Fitzgibbon v. CIA, 578 F.Supp. 704 (D.D.C.1983). The District Court held that the Agency could withhold information that would disclose sensitive relationships with foreign intelligence services. Id. at 712-13. The District Court distinguished, however, between information concerning such liaisons and what it considered to be "nonsensitive contacts between the CIA and foreign or domestic officials, and the reporting of information about third parties." Id. at 713. As an example of such nonsensitive disclosable materials, the District Court pointed to deletions concerning the Agency's apparent efforts, on behalf of the Paris-based Basque government-in-exile, to obtain Galindez's papers from the New York Police Department ("NYPD"). Id. The District Court essentially found that relations with foreign intelligence services merit greater protection than relations with individual sources. Id. at 713 n. 22.
After considering information that the CIA had withheld concerning particular CIA station locations, the District Court concluded that such information was protectable with the exception of one former location. Information concerning that one former station was "publicly available," the District Court decided, within the meaning of Afshar v. Department of State, 702 F.2d 1125, 1133 (D.C.Cir.1983), and the right to exempt that information from disclosure had effectively been waived, because the existence of that station had been acknowledged in a 1975 congressional committee report. Fitzgibbon, 578 F.Supp. at 715. The documents requested did not treat the same time frame as the period covered by the congressional report, and Afshar itself had noted that its rule would not require recognition of a waiver when an official acknowledgment was being used to uncover information relating to a later time period. See Afshar, 702 F.2d at 1133. The District Court nonetheless concluded that there was no preclusion of waiver for information concerning an earlier time period. Fitzgibbon, 578 F.Supp. at 715 n. 30.
The District Court next considered four groups of documents that contained deletions justified on the ground of protection of intelligence sources (that is, exemption 3). Relying on this Court's definition of "intelligence source" in Sims v. CIA, 642 F.2d 562, 571 (D.C.Cir.1980), rev'd, 471 U.S. 159, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985), the District Court held that the CIA could not protect "unwitting" or "potential" sources. Fitzgibbon, 578 F.Supp. at 717-18. Because there was a public interest in the Galindez case, and because the Agency was investigating "the disappearance of an American citizen and the death of another," id. at 721, rather than engaging in covert operations, the District Court ordered the disclosure of some 47 deletions that the Agency claimed identified sources and 13 instances of information provided by sources. Id. at 727-33 (appendix). The District Court also held that the CIA could not withhold information for which it had claimed an exemption as indicative of intelligence methods because the Agency had attempted to hide "information so basic and innocent that its release could not harm the national security or betray a CIA method." Id. at 722.
Finally, the District Court compelled disclosure of only two FBI documents. In the first document, the Bureau declined to disclose the name of an individual whose name appeared in a report which contained no other information about that person. The District Court concluded that the mere mention of a name in an FBI report, when considered in the context of the wide-ranging Galindez investigation, could hardly establish a sufficient invasion of privacy to overcome the public interest in disclosure. See id. at 723-24. The second document concerned one Stanley Ross, a New York publisher. Because the personal events discussed in that report occurred more than a decade before the Galindez affair, the FBI had claimed that the information was exempt, a rationale that the District Court did not credit because "more opprobrious" information about Ross had already been cleared. Id. at 724.
Upon the CIA's motion for reconsideration, the District Court sustained a number of exemption claims that it had previously rejected, but it essentially reaffirmed its memorandum and order of November 1983. See Mem.Op. of 5 July 1984 at 2 & n. 2, JA at 1304 & n. 2. Both parties appealed from both rulings, and we held the appeals in abeyance pending the Supreme Court's resolution of Sims. After the Supreme Court reversed, see CIA v. Sims, 471 U.S. 159, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985), we remanded to the District Court for reconsideration in light of the Supreme Court's opinion. Fitzgibbon v. CIA, Nos. 79-0956 and 84-5632 (D.C.Cir. March 13, 1986) (order), JA at 1315.
On remand, the District Court largely overturned its earlier disclosure orders. See Mem.Op. of 19 May 1989, JA at 1316. The District Court read Sims as allowing the Director of Central Intelligence very broad authority to protect intelligence sources, as refuting this Court's earlier "crabbed reading" of 50 U.S.C. Sec. 403(d)(3), 3 and as doing so in quite sweeping language; it therefore concluded that it was "limited to determining whether that information [on sources and methods and withheld under exemption 3] was needed to fulfill the Agency's statutory obligations with respect to foreign intelligence." Id. at 7-8, JA at 1322-23.
Following the lead of Sims, the District Court proceeded to reject its prior disclosure order concerning intelligence sources and methods, as well as its order of disclosure concerning relationships with foreign intelligence services, with the exception of those deletions asserted to protect domestic intelligence sources. Such domestic sources were to be disclosed, the District Court concluded, because the Supreme Court in Sims recognized that information, if it is to be protected, "must fall within the 'Agency's mandate to conduct foreign intelligence.' " Mem.Op. of 19 May 1989 at 15, JA at 1330 (citing Sims, 471 U.S. at 169, 105 S.Ct. at 1888) (emphasis supplied by the District Court). Reasoning that CIA contacts with domestic officers and agencies, such as the NYPD, fall beyond the pale of that mandate, the District Court ordered disclosure of such contacts. Id. The District Court also reaffirmed its earlier order compelling disclosure of the location of a particular CIA station, rejecting the CIA's arguments that release by the Agency is different from release through a congressional report and that the information at issue involved a different time frame than the information previously released. Id. at 16-18, JA at 1331-33.
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