Fonda v. Central Intelligence Agency

• Decision Date: 08 July 1977
• Docket Number: Civ. A. No. 76-0285.
• Citation: 434 F. Supp. 498
• Parties: Jane S. FONDA, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY et al., Defendants.
• Court: U.S. District Court — District of Columbia

434 F. Supp. 498

Jane S. FONDA, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY et al., Defendants.

Civ. A. No. 76-0285.

United States District Court, District of Columbia, Civil Division.

July 8, 1977.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Ira M. Lowe, Martin S. Echter, Washington, D. C., for plaintiff.

Paul Figley, Dept. of Justice, Washington, D. C., for defendants.

MEMORANDUM OPINION

JOHN H. PRATT, District Judge.

This is a Freedom of Information Act (FOIA) suit. It is here on defendants' motion for summary judgment, plaintiff's cross motion for partial summary judgment, and plaintiff's motion for in camera review and for an order permitting participation of counsel in that review.

Defendants identified 252 documents as responsive to plaintiff's FOIA request. Six were released to plaintiff in their entirety. Of the remaining 246 documents, 173 were withheld in part and 73 were withheld in their entirety. Plaintiff here challenges defendants' continued refusal to release these 246 documents¹ in their entirety.

I. The Responsiveness of Defendants' Search.

By letter of March 21, 1975, plaintiff requested

All files, records, memoranda or other data or material filed under my name or obtainable by the CIA by searching through files and materials for documents which contain my name.

Letter from Jane Fonda to Robert S. Young, Mar. 21, 1975, filed herein as Attachment A to Affidavit of Gene Wilson, June 21, 1976. An affidavit filed herein indicates that "documents in which plaintiff's name is mentioned were identified as responsive" to this request. Affidavit of Charles A. Briggs consisting of 39 pages, June 21, 1976, at 9, para. 18 (hereinafter referred to as Briggs I Affidavit). A search was made for every document in defendants' records containing plaintiff's name. The 252 documents referred to above were located.

Plaintiff argues that this search was not responsive to her FOIA request. She seeks an order requiring defendants to "complete their search ... in a manner consistent with the letter and spirit of her request." Plaintiff's Memorandum at 18. Plaintiff wants defendants to search for all documents which are filed under her name but do not mention her name or "concern her" but do not mention her name.

The difficulties in such an open-ended search are apparent. Plaintiff offers no criterion by which defendants can determine which documents "concern her." Moreover, the FOIA does not require defendants to comply with such a request. It only mandates that federal agencies make records available upon a request that "reasonably describes" such records. 5 U.S.C. § 552(a)(3)(A). We hold that plaintiff's request for a further search does not "reasonably describe" the records she seeks. Under the circumstances, defendants' interpretation of plaintiff's original FOIA request was reasonable. They will not be required to make a further search. If plaintiff wishes a further search, she can file another, more specific, FOIA request. See Irons v. Schuyler, 151 U.S.App.D.C. 23, 465 F.2d 608, cert. denied, 409 U.S. 1076, 93 S.Ct. 682, 34 L.Ed.2d 664 (1972) (interpreting predecessor provision requiring request for "identifiable" records); Hayden v. CIA, Civil No. 76-284, at 8 (D.D.C. Oct. 18, 1976) (order partially granting plaintiff's motion for in camera review).

II. The Motions for In Camera Review and for Summary Judgment.

Defendants have withheld portions of 246 documents from plaintiff. They argue that exemptions 1, 2, 3, 5, 6, and 7(F), 5 U.S.C. § 552(b)(1)-(3), (5)-(6), 7(F), of the FOIA authorize withholding portions of specified documents or, in some cases, entire documents. They have filed detailed, voluminous, and comprehensive affidavits supporting their claims to exemption and have supplied the Court with copies of the 173 documents released to plaintiff.

Exemption 1. Defendants claim exemption for portions of 228 documents under exemption 1.² This exemption protects from mandatory disclosure matters that are "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and ... in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1). An affidavit filed in this case describes each of the 228 documents, lists its classification category, and sets forth the authority under which it was classified. Affidavit of Charles A. Briggs consisting of 25 pages, June 21, 1976 (hereinafter referred to as Briggs II Affidavit). It also reveals that, as a result of plaintiff's request, a classification review was conducted to determine whether the classified documents responsive to her request warranted continued classification at their then-current levels. The results of that classification review were reviewed by the affiant, Charles A. Briggs, Chief of the Services Staff of defendants' Directorate of Operations. As a result of that classification review, it was determined that the majority of documents previously classified "secret" warranted continued classification at the "confidential" level, that the majority of documents previously classified "confidential" warranted continued classification at that level, and that a few documents should be declassified. Briggs II Affidavit at 2.

In a national security case where nothing appears to raise the issue of good faith, a district court may determine whether to require in camera inspection on the basis of affidavits alone. In order to do so, the court must be satisfied that proper procedures have been followed and that by their sufficient description the contested documents logically fall into the category of the exemption indicated. Weissman v. CIA, No. 76-1566, at 10-11 (D.C.Cir. Jan. 6, 1977), as amended, (Apr. 4, 1977).³

The CIA dealt with plaintiff's request in a conscientious manner. It disclosed much material and it came forward with newly discovered documents as located. The Agency submitted detailed affidavits summarizing each document or portion of document withheld and indicated the rationale for each claimed exemption. It filed an indexed description of all material withheld and supported the withholding by explicit affidavits. On the basis of this history and after reviewing the documents released to plaintiff, the Court concludes that nothing appears to raise the issue of good faith. Furthermore, after our review of the entire record, we are satisfied that proper procedures were followed and that the documents withheld logically fall into exemption 1. Accordingly, the Court will not require in camera inspection of documents under exemption 1.

Likewise, we are convinced by the affidavits and by our examination of the documents released to plaintiff that the documents and portions of documents withheld on the basis of exemption 1 are properly classified both procedurally and substantively pursuant to Executive Order 11652. There has been no credible challenge to the veracity of the affidavits and nothing appears to raise the issue of good faith. The Court will therefore sustain defendants' assertion of exemption 1. See Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362 (4th Cir.), cert. denied, 421 U.S. 992, 95 S.Ct. 1999, 44 L.Ed.2d 482 (1975).

Exemption 2. The FOIA exemption for matters "related solely to the internal personnel rules and practices of an agency," 5 U.S.C. § 552(b)(2), is claimed for portions of 74 documents.⁴ The matters withheld consist of "filing instructions, filing information and instructions on the handling of classified information ... and FBI file numbers." Briggs I Affidavit at 9, para. 16.

The scope of exemption 2 is not well defined. Its legislative history is ambiguous. See Department of the Air Force v. Rose, 425 U.S. 352, 362-70, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976); Vaughn v. Rosen, 173 U.S.App.D.C. 187, 523 F.2d 1136, 1141-43 (1975). It is certain, however, that the exemption applies to matters "in which the public could not reasonably be expected to have an interest." Rose, supra, 425 U.S. at 369-70, 96 S.Ct. at 1603. Examples of such matters are information on "parking facilities, lunchrooms, sick leave, and the like." Vaughn, supra, 173 U.S.App.D.C. 187, 523 F.2d at 1143. The "general thrust" of the exemption is "to relieve agencies of the burden of assembling and maintaining for public inspection matter in which the public could not reasonably be expected to have an interest." Rose, supra, 425 U.S. at 369-70, 96 S.Ct. at 1603.

In the context of this case, defendants' assertion of exemption 2 cannot be upheld on the basis of the affidavits alone. "Congress intended that Exemption 2 be interpreted narrowly and specifically." Vaughn, supra, 173 U.S.App.D.C. 187, 523 F.2d at 1142. From the affidavits, it does not appear that the withheld matters fall within the literal words of exemption 2, i. e., it does not appear that the withheld matter relates to personnel rules and practices. Filing instructions and information, instructions on handling classified information, and FBI file numbers are not like information on parking facilities, lunchrooms, and sick leave. Even though some withheld matters may be of only internal significance and concern only routine matters, others, such as instructions on handling classified information, may be of genuine and legitimate public concern. Moreover, in the context of this case, the administrative burden of requiring disclosure is minimal. The withheld matter is contained in documents that have already been identified. It would have been easier to release the information than to withhold it. There is no problem of requiring defendants to identify documents containing certain FBI file numbers or certain filing instructions which may not be readily identifiable using their current system of records or may be burdensome to systematize. The policy underlying exemption 2 would not be furthered by sustaining defendants' claims on the basis of the affidavits...