Halperin v. CENTRAL INTELLIGENCE AGCY.

• Decision Date: 07 March 1978
• Docket Number: Civ. A. No. 76-1082.
• Citation: 446 F. Supp. 661
• Parties: Morton HALPERIN, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY et al., Defendants.
• Court: U.S. District Court — District of Columbia

446 F. Supp. 661

Morton HALPERIN, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY et al., Defendants.

Civ. A. No. 76-1082.

United States District Court, District of Columbia.

March 7, 1978.

Mark H. Lynch, Washington, D. C., for plaintiff.

Barbara Allen Babcock, Asst. Atty. Gen., William G. Schaffer, Deputy Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., Lynne K. Zusman, Jeffrey Axelrad, Paul F. Figley, Washington, D. C., for defendants.

MEMORANDUM OPINION

CHARLES R. RICHEY, District Judge.

This Freedom of Information Act (FOIA) case is now before the Court on defendants' motion for summary judgment, plaintiff's July 1, 1977, motion to compel, and plaintiff's October 14, 1977, motion to compel. For the reasons hereinafter stated, the Court will deny plaintiff's motions to compel and grant defendants' motion for summary judgment.

I. BACKGROUND

On January 19, 1976, plaintiff filed a request under the FOIA with the defendant Central Intelligence Agency (CIA). This request sought the release of documents in defendants' possession that pertained to briefings given by the CIA in 1970 to members of the press concerning the then-extant political situation in Chile. On April 6, 1976, the CIA replied that it had located two documents responsive to plaintiff's request, but that it was withholding these documents pursuant to exemptions 3 and 6 of the FOIA. 5 U.S.C. §§ 552(b)(3) & (6). Plaintiff then appealed administratively. In reply to this appeal, the CIA notified plaintiff that it had found five additional documents responsive to his request; the Agency, however, determined not to release these documents, as well as the initial two, pursuant to exemptions 1, 3, and 6. 5 U.S.C. §§ 552(b)(1), (3) & (6).

During the course of this litigation, defendants decided to release all but the exemption 6 portions of two of the withheld documents (Nos. 1 & 2), and plaintiff decided not to contest the withholding of three documents (Nos. 3, 4 & 5), and not to challenge the exemption 6 deletions from documents 1, 2, 6 & 7. In addition, during the pendency of the instant motions, defendants decided to release an additional three sentences from document 6 with but a single deletion.¹ Accordingly, the only withheld document-portions that remain in dispute are two paragraphs (17 lines) from document 6 and the entirety of document 7 (35 lines). Both of these documents are background briefing materials, and defendants have invoked both exemption 1 and exemption 3 as the basis for withholding these document portions.

II. THE BASIS FOR WITHHOLDING

In conformance with the requirements of Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974), and Phillippi v. CIA, 178 U.S.App.D.C. 243, 546 F.2d 1009 (1976), defendants filed a series of detailed affidavits that set forth the basis for the CIA's invocation of exemptions 1 and 3 for documents 6 and 7. As these affidavits indicate, documents 6 and 7

were prepared in 1970 in response to a request for a limited press briefing on the political situation in Chile. The documents were prepared with the explicit understanding and agreement that the information contained therein, while fully accurate, would not be attributed to the U.S. Government or the CIA.

Supplemental Affidavit of Charles A. Briggs, ¶ 10 (hereinafter, Briggs Supp.Aff.). Documents 6 and 7 were both only made available to a single media representative, who had been granted clearance by the CIA to receive classified information. Answers to Plaintiff's Second Set of Interrogatories, Nos. 3(a)-(c).

Defendants' most comprehensive affidavit asserts that the first paragraph (11 lines) deleted from document 6 consists of

foreign intelligence information concerning specific secret political arrangements between foreign government officials and the identities of individuals who played significant roles in these secret activities.

Briggs Supp.Aff. at ¶ 4. This affidavit further asserts that the second paragraph (6 lines) deleted from document 6 contains "personal details concerning a foreign personality." Id. at ¶ 5. Finally, this affidavit asserts that the entirety of document 7 (35 lines) "concerns secret communications between foreign government officials." Id. at ¶ 6. The affidavit contends that, with respect to all three deleted document portions, access to the particular information in 1970 would have been "severely restricted," and disclosure that the CIA possessed such information in 1970 "could lead to the identification of the ultimate intelligence sources utilized in acquiring this information." Id. at ¶¶ 5-7.

Defendants originally asserted that

two of the human intelligence sources involved in acquiring the information described above are currently residing abroad and may be expected to continue to provide information of value to this Government's foreign intelligence mission provided their identities are protected. Attribution to the CIA of information which could lead to their identification, such as the withheld textual material in Document Nos. 6 and 7, could lead to an intensive counter-intelligence effort to identify these sources, putting an end to their usefulness, adversely impacting the ability of this Government to conduct intelligence operations overseas in the future and very possibly placing their lives in jeopardy.

Briggs Supp.Aff. at ¶ 7. However, during the course of considering the instant motions, the Court scrutinized the withheld documents, which had been filed in camera pursuant to the Court's Order of October 17, 1977. On the basis of this examination, the Court concluded that more than two "human intelligence sources" may well have been responsible for providing defendants with the withheld information. Accordingly, the Court ordered defendants to explain fully the number of sources involved and which information each had supplied. Order of December 23, 1977. Recognizing that such an explanation "may itself contain identifying information with respect to the undisclosed intelligence sources," the Court indicated that it would be permissible for defendants to file an appropriate explanatory affidavit under seal for in camera inspection.

On January 16, 1978, in compliance with the Court's Order, defendants filed two supplemental affidavits—one in the public record and one in camera. Both of these were prepared by Robert E. Owen, Information Review Officer for the Directorate of Operations of the CIA. The public affidavit asserts that the information in the withheld portions of documents 6 and 7 was provided by five intelligence sources: Four of the intelligence sources were identified in the affidavit as human sources, and the remaining source was identified as a nonhuman source in defendants' answer to question 2(a) of plaintiff's third set of interrogatories. The public affidavit indicates that human source # 1 is currently alive and residing in Latin America; it further indicates that although he is not now an active intelligence source, he can be contacted for such purposes in the future. Human source # 2 is identified as a national of a Latin American country who is presently in exile in another country; he, too, is not now an active intelligence source but can also be recontacted for that purpose. Human source # 3 is identified as a citizen of a Latin American country and is believed to be residing there at this time; he is also not an active source but can be recontacted. Finally, human source # 4 is identified as a prominent citizen of a Latin American country who presently resides in that country. The activities of all these human sources as CIA sources has never been compromised. See Defendants' Answer to Plaintiff's Third Set of Interrogatories, Nos. 1(a), 3(a), and 4(a). The one nonhuman source has not been further described in the public affidavit in order to avoid "risk of compromise." This source has also never been compromised. See id., No. 2(b).

III. MERITS

Defendants have moved for summary judgment on the basis of both exemption 1 and exemption 3, 5 U.S.C. §§ 552(b)(1) & (3). Plaintiff has opposed defendants' motion with respect to both asserted exemptions on the ground that material facts remain in dispute. In an attempt to resolve these allegedly disputed facts, plaintiff has sought to compel defendants to identify both the CIA official who in 1970 gave the documents here in issue to a media representative and the media representative who received the documents. Plaintiff argues that since no present CIA employee has first-hand knowledge of the 1970 transaction, it is necessary for plaintiff to depose said individuals in order to determine whether an express agreement of confidentiality did indeed exist in 1970 between the CIA and the media representative and, if so, what the express terms of such an agreement were. The Court concludes that: (1) the discovery sought by plaintiff is not material to the propriety of defendants' invocation of exemption 3; (2) no material facts relevant to the applicability of exemption 3 remain in dispute; and (3) defendants are entitled as a matter of law to judgment based on their invocation of exemption 3.²

Exemption 3 to the FOIA, as recently amended by the Government in the Sunshine Act, P.L. No. 94-409, 90 Stat. 1241, § 5(b) (1976), permits federal agencies to withhold from disclosure documents that are

specifically exempted from disclosure by statute . . . provided that such 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.

Defendants contend that the withheld portions of documents 6 and 7 are exempted from disclosure by this exemption and 50 U.S.C. § 403(d)(3), which requires the Director of the CIA to protect "intelligence sources and methods from unauthorized disclosure."³

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