Gardels v. Central Intelligence Agency, 80-1253

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Citation: 637 F.2d 770
• Docket Number: No. 80-1253,80-1253
• Parties: Nathan GARDELS, Appellant, v. CENTRAL INTELLIGENCE AGENCY.
• Decision Date: 30 October 1980

Page 770

637 F.2d 770 205 U.S.App.D.C. 224 Nathan GARDELS, Appellant,
v.
CENTRAL INTELLIGENCE AGENCY. No. 80-1253. United States Court of Appeals,
District of Columbia Circuit. Argued Sept. 24, 1980.
Decided Oct. 30, 1980.

Susan W. Shaffer, Washington, D. C., with whom Mark H. Lynch, Washington, D. C., was on brief for appellant.

Frank Rosenfeld, Atty., Dept. of Justice, Alice Daniel, Asst. Atty. Gen., Charles F. C. Ruff, U. S. Atty. and Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., were on brief for appellee. William Kanter, Atty., Dept. of Justice, Washington, D. C., also entered an appearance for appellee.

Page 771

Before ROBB, WALD and MIKVA, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBB.

ROBB, Circuit Judge:

This is an appeal from a summary judgment for the Central Intelligence Agency (CIA) in a Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1976), suit brought by Nathan Gardels, a student at the University of California (Los Angeles). As required by Local Rule 1-9(h) of the United States District Court for the District of Columbia, the government accompanied its motion for summary judgment with a Statement Of Material Facts As To Which There Is No Genuine Issue. However, because we believe the government's Rule 1-9(h) Statement was insufficient, we reverse the summary judgment on procedural grounds and express no opinion on the merits. A review of the procedural history demonstrates the need for full compliance with the local rule before the District Court may consider disposition of the case by summary judgment.

BACKGROUND

In May 1976 Gardels requested disclosure of documents pertaining to "all past and present contractual arrangements or agreements and personnel relationships" between the CIA and persons at the eleven campuses of the University of California. (J.A. at 11) A reformulated request dated December 13, 1976, sought disclosure of only those responsive documents retrievable through five named divisions of the CIA ¹ and those documents gathered for use by the Senate or House Select Committees on Intelligence. The named divisions were selected because they had been mentioned in the Report of the Senate Select Committee ² as having campus contacts.

In letters to Gardels dated July 11, 1977 and November 2, 1977 the CIA released 21 documents in their entirety, 176 documents with deletions, and withheld 12 documents entirely. The released documents dealt with what the CIA characterizes as overt contacts between the Agency and the University of California. In addition, the Agency informed Gardels in the November letter that it could neither confirm nor deny the existence of any additional responsive documents "which reveal any covert CIA connections with or interest in" the University of California. (J.A. at 29) The CIA justified this refusal on the basis of exemptions 1 ³ and 3 ⁴ in the FOIA, contending first, that such records, if they existed, would be properly classified, and, second, that the fact of the existence or nonexistence of such records pertained to intelligence sources and methods, which the Director of CIA must protect from unauthorized disclosure pursuant to 50 U.S.C. §§ 403(d)(3) and 403g (1976).

Gardels filed suit in the District Court challenging the Agency's decisions to delete portions of documents, to withhold some documents, and to refuse to confirm or deny the existence of other documents. The District Court, following Vaughn v. Rosen, 157 U.S.App.D.C. 340, 347, 484 F.2d

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820, 827 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974), directed the CIA to file the detailed index and justification for withholding some documents and deleting portions of others. The court also ordered the CIA to file the detailed public affidavit required by Phillippi v. CIA, 178 U.S.App.D.C. 243, 247, 546 F.2d 1009, 1013 (1976), explaining its refusal to confirm or deny the existence of responsive documents pertaining to covert contacts.

The CIA responded by filing the affidavit of F.W.M. Janney, Director of Personnel of the CIA (the Vaughn index), and the affidavit of John F. Blake, then Deputy Director for Administration of the CIA and Chairman of its Information Review Committee (the Phillippi affidavit). The Janney affidavit explained the reasons for deleting portions of the Office of Personnel records that were released to Gardels and for withholding some of the requested documents entirely. These documents are not at issue in this appeal. The Blake affidavit dealt with the reasons why the CIA could neither confirm nor deny the existence of documents pertaining to covert CIA contacts with the University of California. The principal justification offered in the affidavit was that public confirmation of the existence of covert contacts at universities would lead to "active and abrasive campaigns to discover and expose the individuals concerned on at least some of the campuses ...." (J.A. at 38) Alternatively, said Blake, public denial of covert contacts at a particular university could result in the ultimate identification, through a process of elimination, of those universities at which the CIA has covert contacts. It is the accuracy and adequacy of these justifications which Gardels challenges on appeal.

Gardels initially tested the assertions in the Blake affidavit by submitting interrogatories, which Blake answered on behalf of the CIA on August 15, 1978. Shortly thereafter the CIA moved for summary judgment. Attached to the motion for summary judgment were the required Rule 1-9(h) Statement and the affidavits of Gene F. Wilson and Michel Oksenberg. Wilson holds...