Founding Church of Scientology of Washington, D. C., Inc. v. National Sec. Agency

• Decision Date: 15 May 1979
• Docket Number: No. 77-1975,77-1975
• Citation: 197 U.S.App.D.C. 305,610 F.2d 824
• Parties: , 5 Media L. Rep. 1850 The FOUNDING CHURCH OF SCIENTOLOGY OF WASHINGTON, D. C., INC., Appellant, v. NATIONAL SECURITY AGENCY et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 824

610 F.2d 824

197 U.S.App.D.C. 305, 5 Media L. Rep. 1850

The FOUNDING CHURCH OF SCIENTOLOGY OF WASHINGTON, D. C INC., Appellant, v. NATIONAL SECURITY AGENCY et al.

No. 77-1975.

United States Court of Appeals, District of Columbia Circuit.

Argued March 27, 1978.

Decided May 15, 1979.

William A. Dobrovir, Washington, D. C., for appellant.

Michael F. Hertz, Atty., Dept. of Justice, Washington, D. C., with whom Earl J. Silbert, U. S. Atty., Barbara Allen Babcock, Asst. Atty. Gen., and Robert E. Kopp, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellee. Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., also entered an appearance for appellee.

Before TAMM and ROBINSON, Circuit Judges, and OBERDORFER, ^* United States District Judge, United States District Court for the District of Columbia.

Opinion for the Court filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

The Founding Church of Scientology of Washington, D.C., Inc., the appellant, complained in the District Court of the refusal of the National Security Agency (NSA), the appellee, to release documents requested by appellant under the Freedom of Information Act. ¹ The court, relying upon an affidavit submitted by the agency, ruled that the materials solicited were protected from disclosure by joint operation of Exemption 3 of the Act ² and Section 6 of Public Law No. 86-36, ³ and granted summary judgment in favor of NSA. ⁴ We find that NSA failed to establish its entitlement to a summary disposition of the litigation. Accordingly, we reverse the judgment appealed from and remand the case for additional proceedings before the District Court.

I

NSA was created by order of the President in 1952 ⁵ and endowed with a twofold mission. Its first major task is shielding the Nation's coded communications from interception by foreign governments. Its second principal function, implicated by appellant's document request, entails acquisition of information from electromagnetic signals and distillation of that information for assimilation by the intelligence community and national policymakers. As a part of the latter activity, NSA surreptitiously intercepts international communications by a variety of means.

In December, 1974, appellant sought access, pursuant to the Freedom of Information Act, to all records maintained by the Agency on appellant and the philosophy it espouses, as well as records reflecting dissemination of information about appellant to domestic agencies or foreign governments. Subsequently, appellant's request was enlarged to embrace all references touching on L. Ron Hubbard, founder of the doctrine of Scientology. NSA's reply was that it had not established any file pertaining either to appellant or Hubbard, and that it had transmitted no information regarding either to the entities specified in the demand. In March, 1975, appellant enumerated other Scientology organizations with respect to which pertinent records might exist. NSA again denied possession of any of the data sought.

In the course of Freedom of Information Act proceedings against the Department of State and the Central Intelligence Agency (CIA), appellant learned that NSA had at least sixteen documents concerning Scientology, appellant and related organizations. So advised, and armed with details solicited from CIA, NSA succeeded in locating fifteen of those items in warehouse storage, and obtained a copy of the sixteenth from CIA. Release of these materials was resisted, however, on grounds that they were protected from disclosure by provisos of the Act relating to national security matters ⁶ and to confidentiality specifically imparted by other statutes. ⁷

In August, 1976, appellant commenced suit in the District Court to compel NSA to conduct a renewed search of its files and to enjoin any withholding of the materials desired. Appellant served numerous interrogatories on NSA inquiring into its efforts to locate responsive records, its classification of documents, and its correspondence with CIA with respect to the items theretofore uncovered. Purportedly to avoid revelation of functions and activities assertedly insulated by the Act from public scrutiny, ⁸ NSA declined to supply more than minimal information in answer to the interrogatories.

Then, invoking Public Law No. 86-36 ⁹ and Exemption 3 ¹⁰ exclusively, NSA moved for dismissal of the action or alternatively for summary judgment in its favor. In support of the motion, NSA tendered the affidavit of Norman Boardman, its information officer, and offered to furnish a more detailed but classified affidavit for In camera inspection. Appellant vigorously opposed any Ex parte submission and sought more extensive public airing of the issues. The District Court was of the view that Section 6 of Public Law No. 86-36 was an Exemption 3 statute foreclosing compulsory release of the sought-after data. ¹¹ In that light, and on the basis of Boardman's public affidavit, the court ordered summary judgment for NSA. ¹² From that action, this appeal was taken.

II

Appellant begins with a challenge to the District Court's holding that the sixteen documents admittedly retained by NSA enjoy a protected status. ¹³ Appellant then complains of the court's failure to probe more thoroughly NSA's protestations respecting possession of other relevant material. ¹⁴ In pressing the first point, appellant concedes that Section 6 of Public Law No. 86-36 is a law bringing Exemption 3 into play but claims inadequacies in the agency's showing, upon which the District Court awarded summary judgment. More particularly, appellant contends that the Boardman affidavit lacked sufficient detail to enable an informed determination as to whether disclosure of any or all of the sixteen items would illuminate agency activities of which the public was not already aware. We, too, believe that Section 6 is an Exemption 3 statute and that NSA's affidavit did not furnish a satisfactory basis for testing the exemption's applicability to the data appellant seeks.

A

As originally enacted, Exemption 3 authorized the withholding of information "specifically exempted from disclosure by statute." ¹⁵ The exemption was amended in 1976, however, "to overrule (a) decision of the Supreme Court" ¹⁶ which had sanctioned rejection of a records request on grounds that nondivulgence was authorized by a statute conferring a "broad degree of discretion" ¹⁷ on an agency to conceal data "in the interest of the public." ¹⁸ Under the exemption as amended, materials are deemed "specifically exempted from disclosure by statute" only if the "statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld." ¹⁹ Subsection (A) reaches only those laws that mandate confidentiality "absolute(ly) and without exception"; ²⁰ it condones no decisionmaking at the agency level. ²¹ Subsection (B), on the other hand, does contemplate some exercise of administrative discretion in closely circumscribed situations, "but its unmistakeable thrust . . . is to assure that basic policy decisions on governmental secrecy be made by the Legislative rather than the Executive branch." ²²

The provision on which NSA relies to trigger Exemption 3 into operation is Section 6 of Public Law No. 86-36, which states that with exceptions inapplicable in this case

nothing in this Act ²³ or any other law (including, but not limited to, the (Classification Act of 1949)) ²⁴ shall be construed to require the disclosure of the organization or any function of the National Security Agency, of any information with respect to the activities thereof, or of names, titles, salaries, or number of the persons employed by such agency. ²⁵

Plainly, Section 6 insulates the information specified from mandatory divulgence though it does not purport to bar voluntary disclosure by NSA itself. Since it countenances administrative discretion to publicize or maintain secrecy, Section 6 lacks the rigor demanded by Subsection (A) of Exemption 3. But appellant acknowledges, and the District Court ruled, ²⁶ that, within the meaning of Subsection (B), Section 6 "refers to particular types of matters to be withheld." ²⁷ More specifically, in material part the provision protects information laying open "the organization or any function of the National Security Agency, . . . (or) the activities thereof." ²⁸

Our examination of Section 6 and its legislative history confirms the view that it manifests a "congressional appreciation of the dangers inherent in airing particular data," ²⁹ and thus satisfies the strictures of Subsection (B). The section was enacted at the request of the Department of Defense. ³⁰ The Department's immediate aim was termination of personnel oversight by the Civil Service Commission, which would subject highly sensitive agency activities to inspection. ³¹ Exclusion from the Classification Act, ³² administered by the Civil Service Commission, was thought to be "consistent with the treatment . . . accorded other agencies engaged in specialized or highly classified defense activities." ³³ The purpose and scope of the bill proposed was broader, however, for, as the Department explained, "(t)he unique and highly sensitive activities of the Agency require extreme security measures." ³⁴ Accordingly, the bill incorporated provisions "exempting the Agency from statutory requirements involving disclosures of organizational . . . matters which should be protected in the interest of national defense." ³⁵

The Senate report focused on relieving NSA from the requirements of the Classification Act. ³⁶ But it also echoed the Department's concern over publicity of NSA's "very highly classified functions vital to the national security." ³⁷ The statutory language similarly evinces a purpose to...