Halperin v. Central Intelligence Agency, 79-1849
| Decision Date | 07 August 1980 |
| Docket Number | No. 79-1849,79-1849 |
| Citation | 629 F.2d 144,203 U.S.App.D.C. 110 |
| Parties | Morton H. HALPERIN, Appellant, v. CENTRAL INTELLIGENCE AGENCY. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
William A. Dobrovir, Washington, D. C., for appellant. Joseph D. Gebhardt, Washington, D. C., also entered an appearance for appellant.
Al J. Daniel, Jr., Atty., Dept. of Justice, Washington, D. C., with whom Alice Daniel, Asst. Atty. Gen., Charles F. C. Ruff, U. S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellee.
Before TAMM and WILKEY, Circuit Judges, and DAVIES, * United States Senior District Judge for the District of North Dakota.
Opinion for the Court filed by Circuit Judge WILKEY.
Plaintiff Morton H. Halperin appeals from the district court's denial of his Freedom of Information Act (FOIA) suit for access to Central Intelligence Agency (CIA) documents detailing legal bills and fee agreements with private attorneys retained by the Agency. The district court granted summary judgment to the CIA, finding the requested documents to be specifically exempted from FOIA disclosure by two statutes, and holding that plaintiff lacked standing to challenge the constitutionality of those statutes.
We affirm the district court's conclusion that the documents are statutorily exempted from disclosure, and we agree that under a controlling Supreme Court precedent plaintiff lacks standing. As explained later in our discussion of the issue of standing, we find it advisable to reach the merits on the constitutionality of the exempting statutes, and as an additional ground of our decision we hold that the CIA exempting statutes as applied in this case are not unconstitutional.
In 1976 plaintiff Halperin made a request to the CIA for attorney retainer agreements, fee agreements, bills and statements, and related correspondence between the CIA and any attorneys or law firms retained by the CIA to perform legal services for the Agency or its employees since 17 June 1972. Plaintiff also sought access to Agency files for the purpose of locating and inspecting the requested materials. 1
The CIA released those documents that concerned legal services rendered on an unclassified basis, but withheld documents pertaining to names of attorneys and details of legal services connected with covert or classified activities, except to release its standard contract used in retaining attorneys for classified CIA activities. In support of this action the CIA cited Exemption 1 of the FOIA for classified national defense and foreign policy documents, and Exemption 3 for documents specifically exempted by statute. 2
The district court rested its summary judgment decision on Exemption 3 and found it unnecessary to decide the applicability of Exemption 1. Judge Oliver Gasch found that section 102(d)(3) of the National Security Act, 50 U.S.C. § 403(d)(3) (1976), exempted all the withheld documents through its protection of intelligence sources and methods from unauthorized disclosure. As an additional ground of decision under Exemption 3, the court found information about legal fees and similar agency expenditures in the nature of salaries to be specifically exempted by section 6 of the Central Intelligence Agency Act, 50 U.S.C. § 403g (1976). 3
Plaintiff further claimed that the application of these statutes under Exemption 3 violates Article I, Section 9, Clause 7 of the United States Constitution, which requires inter alia a "statement and account" of public expenditures. In response to this argument Judge Gasch noted the Supreme Court's rejection of taxpayer standing to raise the same constitutional challenge to 50 U.S.C. § 403g in the case of United States v. Richardson. 4 Judge Gasch held that this lack of standing bars a FOIA requester as well as a taxpayer, and therefore there is no standing for plaintiff in this case. 5
In reviewing the district court's decision, we first look at whether the court properly applied the statutes cited by the CIA as grounds for invoking FOIA Exemption 3. This exemption protects from disclosure those matters 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 . . .." 6
This court has consistently held sections 403(d)(3) and 403g of Title 50 to be exempting statutes of the type described in FOIA Exemption 3. 7 Section 403(d)(3) provides in pertinent part: "That the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure." 8 Section 403g further provides for the exemption of the CIA from any law that requires disclosure of the organization, functions, names, official titles, salaries or numbers of personnel employed by the Agency. 9
The district court properly applied a standard exempting under 50 U.S.C. § 403(d)(3) those documents that the Agency demonstrates "can reasonably be expected to lead to unauthorized disclosure of intelligence sources and methods." 10 The Agency attempted to satisfy this standard by means of evidence presented in the deposition of John F. Blake, Deputy Director for Administration for the CIA, 11 and in affidavits from Blake 12 and from Robert E. Owen, Information Review Officer for the CIA. 13 In their statements these officials presented evidence pertaining to disclosure of the two types of information under dispute, the names of attorneys retained for covert CIA activities and the legal fees paid to them by the CIA.
Concerning the disclosure of names of attorneys, Deputy Director Blake testified at a deposition that each attorney connected with covert CIA activities and implicated by plaintiff's FOIA request was an intelligence method within the meaning of section 403(d)(3), and that identification of such attorneys could reasonably be expected to lead to the disclosure of other intelligence sources and methods. 14 Both CIA officials explained in their statements that disclosure of attorney names could result in harm to the individuals identified, in harm to the CIA's efforts to recruit other personnel for covert intelligence-related operations, and in harm to other intelligence sources and methods through the providing of useful leads to the intelligence agencies of hostile powers. 15 Based on the affidavits and deposition, the district court concluded that the disclosure of attorney names, even with the deletion of details tending to identify the underlying transaction, could reasonably be expected to lead to unauthorized disclosure of intelligence sources and methods. 16
In reviewing this decision of the district court, we note initially that Congress has indicated that courts should give "substantial weight" to such agency statements while conducting a de novo review of agency decisions that withhold information on the basis of FOIA Exemption 1. 17 The logic of this judicial review standard applies equally to all national security FOIA cases, whether they arise formally under Exemption 1 or Exemption 3. 18 In past cases this court has interpreted the proper means of applying the "substantial weight" standard to Exemption 1 and Exemption 3 cases. We have held that summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith. 19
If the agency's statements meet this standard, the court is not to conduct a detailed inquiry to decide whether it agrees with the agency's opinions; to do so would violate the principle of affording substantial weight to the expert opinion of the agency. 20 Judges, moreover, lack the expertise necessary to second-guess such agency opinions in the typical national security FOIA case. Within this limited standard for de novo review, we find that the CIA affidavits and deposition provide more than ample evidence to show the plausibility of the alleged potential harm, in a manner that is reasonably detailed rather than conclusory.
Appellant has presented no evidence to contradict the Agency or to show Agency bad faith. On appeal appellant rests on an argument that the Agency's explanations are conclusory, speculative, and insufficient to carry the Agency's burden of proof under a de novo standard of review in the district court. 21 A summary of the details presented by the CIA, however, demonstrates that appellant's argument has no merit, and that the Agency's showing of potential harm is not only plausible but very convincing.
First, the CIA statements show that the disclosure of the identity of an attorney doing work for the CIA might expose him to adverse action from hostile powers. Attorneys performing services connected to CIA activities in foreign countries of course face the harshest risk from exposure of their activities, as the CIA affidavits in this case explain. 22 Exposure of a CIA operative in a foreign country can further lead to embarrassment for the United States and disruption of relations with foreign countries. 23 Though the hazards for American attorneys are not so great, public disclosure of an affiliation with the CIA may have adverse consequences for them as well. 24
Second, the CIA's inability to protect the anonymity of its agents in any part of the world is a strong disincentive to those who are considering future employment or continued affiliation with the CIA. 25 Deputy Director Blake stated in his deposition that he had personal knowledge of "at least two...
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