Halperin v. Department of State, 76-1528

• Decision Date: 16 August 1977
• Docket Number: No. 76-1528,76-1528
• Citation: 565 F.2d 699,184 U.S.App.D.C. 124
• Parties: , 2 Media L. Rep. 2297 Morton H. HALPERIN v. DEPARTMENT OF STATE et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 699

565 F.2d 699

184 U.S.App.D.C. 124, 2 Media L. Rep. 2297

Morton H. HALPERIN v. DEPARTMENT OF STATE et al., Appellants.

No. 76-1528.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 21, 1976.

Decided Aug. 16, 1977.

Irwin Goldbloom, Atty., Dept. of Justice, Washington, D. C., for appellants. Rex E. Lee, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., Leonard Schaitman, Karen K. Siegel, Attys., Dept. of Justice, Washington, D. C., and Monroe Leigh, Legal Advisor, Dept. of State, were on the brief, for appellants. Morton Hollander, Atty., Dept. of Justice, Washington, D. C., also entered an appearance for appellants.

Morton H. Halperin, appellee pro se, with whom John H. F. Shattuck, Washington, D. C., was on the brief, for appellee.

Before WRIGHT, McGOWAN and MacKINNON, Circuit Judges.

Opinion for the Court filed by McGOWAN, Circuit Judge.

McGOWAN, Circuit Judge:

Appellee in this Freedom of Information Act (FOIA) case seeks to compel disclosure of deleted portions of the transcript of a so-called "background" press conference held by former Secretary of State Kissinger on December 3, 1974. Appellants assert that the disputed material was properly classified pursuant to an Executive order, and therefore is exempt from mandatory disclosure under FOIA. 5 U.S.C. § 552(b)(1) (Supp. IV 1974). It is further contended that any disclosure, mandatory or discretionary, would be highly undesirable, since official attribution of the deleted passages to the former Secretary would adversely affect the negotiating position of the United States in the strategic arms limitations talks (SALT) with the Soviet Union.

The District Court found that the State Department, in deciding to classify sections of the press conference transcript, had not taken into account procedural and substantive criteria established by the relevant Executive order. Having held that the material sought did not fall with any statutory exception to FOIA's disclosure requirements, the court did not think it necessary to examine in camera the material in question as requested by appellants. Instead, the court simply ordered release of the deleted passages to appellee.

Because of an almost incredible inattention by the State Department to the governing classification requirements for invocation of the FOIA national security exemption, we cannot fault the District Court's finding of failure to meet those requirements. However, in light of appellants' representations as to the highly sensitive nature of the material involved, we remand the case to the District Court for the purposes hereinafter appearing.

I

Some familiarity with the characteristics of the "background" press conference is essential to an understanding of the present controversy. The State Department background briefing is designed to permit dissemination of information to the public, while simultaneously avoiding the risks allegedly associated with direct quotation of high-ranking government personnel or official attribution of sensitive statements to government sources identified by name. Members of the press invited to attend such background briefings are expected to adhere to certain rules governing their reporting of the subjects discussed. The record does not reveal whether these rules have been reduced to writing, or whether any formal indication of assent thereto is demanded before individual newsmen are allowed to participate. In any event, the parties apparently agree that the rules are generally known and observed, and, in particular, were not directly violated by any reporters in attendance at Secretary Kissinger's December, 1974 conference. ¹

The rules require that only paraphrase be used in reporting remarks made at background press conferences. In addition, information provided on a "background" basis may be attributed only to unnamed "senior State Department officials," not to any specific individuals. When information is provided on a so-called "deep background" basis, even its State Department origin must be concealed. In those instances, the press may refer only to "informed sources."

In November, 1974, President Ford and General Secretary Brezhnev met in Vladivostok for talks which led to an agreement outlining the future course of SALT. In the aftermath of the Vladivostok discussions, Secretary Kissinger conducted two background briefings, one on November 25, 1974, the other on December 3. ² Of the more than 300 media representatives accredited to the State Department, fewer than forty were invited to the December 3 briefing. Thirty-two attended, including two representatives of foreign news agencies. None of these reporters had a security clearance, and none attended the press conference in the performance of any official duties. Portions of the briefing were explicitly placed in the "deep background" category.

After the conference, a verbatim transcript was prepared by the State Department, and approximately six copies were made. No classification markings were affixed to any of these copies, and, indeed, no classification determination was made at the time the transcript and copies were produced. Copies not distributed elsewhere within the State Department were kept in the Department's Office of Press Relations in a safe approved for the storage of classified information. Access to a copy of the transcript was permitted only with the authorization of either the Director or Deputy Director of the Office of Press Relations. At most, two or three reporters actually saw the written text of the December 3 briefing. ³ They were allowed to take notes on the transcript, but not to duplicate any portions thereof.

In a letter dated February 19, 1975, appellee requested a copy of the December 3 background press conference. Prompted by this request, George Vest, Director of the State Department's Bureau of Politico-Military Affairs, undertook a review of the transcript. Mr. Vest concluded that the entire 59-page text of the December 3 briefing should be released to appellee, with the exception of three deletions totalling 44 lines (approximately two pages). In a letter dated March 5, 1975, Mr. Vest informed appellee that the deletions were "classified on the ground that attribution of these remarks to the Secretary of State could damage the national security." Although the March 5 letter did not disclose the precise status assigned to the deleted passages, Mr. Vest had in fact labelled all three excisions "Confidential." ⁴ Two of the three transcript sections withheld from appellee were in those portions of the press conference conducted on a "background" basis; the third was contained in the "deep background" part of the December 3 briefing.

Informed that the State Department would not comply completely with his FOIA request, appellee first pursued the administrative appeal to which he was entitled under 5 U.S.C. § 552(a)(6)(A). In a letter dated April 9, 1975, Carol Laise, Assistant Secretary of State for Public Affairs, announced that the Department's Council on Classification Policy had decided to sustain the partial denial of appellee's FOIA request. Tracking closely the language employed by Mr. Vest, the Assistant Secretary's letter explained that "(w)e have examined the passages deleted . . . and have concluded that their release in a form directly attributed to the Secretary of State could damage the national security."

On May 1, 1975, appellee filed a complaint in the District Court, alleging that the deleted material had not been properly classified pursuant to Executive Order 11652, and therefore could not qualify under FOIA's first exemption for protection from mandatory disclosure. Cross-motions for summary judgment were filed in November, 1975. On May 27, 1976, the District Court issued an order and memorandum opinion, granting appellee's motion for summary judgment and directing release of the disputed sections of transcript. Notice of appeal was filed on June 11, 1976, and, on June 14, this court granted a joint motion to stay disclosure pending appeal.

II

FOIA's first exemption immunizes from the Act's mandatory disclosure provisions those matters that are (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.

5 U.S.C. § 552(b)(1) (Supp. IV 1974). ⁵ The Conference Committee Report on the 1974 FOIA amendments, S.Rep. No. 93-1200, 93d Cong., 2d Sess. 11-12, reprinted in (1974) U.S.Code Cong. & Ad.News 6267, 6290, indicates that by the addition of clause (B), Congress intended to require proper classification "pursuant to both procedural and substantive criteria contained" in the relevant Executive order. There being no further Presidential action on the subject following adoption of the 1974 amendments, the governing Executive order remains No. 11652, issued by President Nixon in March, 1972. 37 Fed.Reg. 5209 (1972). That order sets forth standards describing the material which may be classified and the appropriate level of secrecy to be assigned to particular information. The three available classification categories afford varying degrees of protection from authorized disclosure depending upon the classified material's significance to national security. In addition, Executive Order 11652 establishes procedures to be followed in classifying and declassifying information. Also included are rules regulating storage of and access to classified material. We list below those features of the Executive Order which bear on the present controversy.

As indicated previously (see note 4 supra), material may be classified "Confidential" only if "its unauthorized disclosure could reasonably be expected to cause damage to the national security." This criterion differs from that applicable before issuance of the currently effective Executive Order. Under Executive...