King v. U.S. Dept. of Justice, 84-5098

Citation265 U.S.App.D.C. 62,830 F.2d 210
Decision Date28 September 1987
Docket NumberNo. 84-5098,84-5098
Parties, 56 USLW 2182 Cynthia KING, Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (Civil Action No. 81-01485.)

Timothy Trushel, Washington, D.C., for appellant.

Charles J. Sheehan, Dept. of Justice, of the Bar of the District of Columbia Court of Appeals, pro hac vice, by special leave of the Court, with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellees.

Before ROBINSON and STARR, Circuit Judges, and WRIGHT, Senior Circuit Judge.

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

Opinion concurring in part and concurring in the judgment filed by Circuit Judge STARR.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

In this Freedom of Information Act (FOIA) 1 case, appellant, Cynthia King, seeks production by the Federal Bureau of Investigation (FBI) of documents relating to her deceased mother-in-law, Carol King, a civil rights attorney and activist about whose career appellant is writing a book. 2 The FBI has released many of the documents--most, however, in redacted form. 3 The agency contends that its decision to withhold portions of the requested information is authorized by Exemptions 1 and 7 of the Act, 4 which respectively except from FOIA's disclosure mandate, documents classified for national security reasons and certain other material gathered during investigations for law-enforcement purposes. Appellant challenges the applicability of either exemption in the circumstances presented here. 5

The District Court denied motions by appellant for summary judgment or in the alternative to compel discovery, rejected appellant's request for in-camera inspection, and granted the FBI's motion for summary judgment. 6 This appeal ensued.

I

The records whose disclosure is here at issue are part of an FBI surveillance file on Carol King compiled during the 1940's and 1950's. She was a prominent civil rights attorney who devoted her practice to defending minorities, aliens, radicals and union members both famous and obscure; 7 and a substantial portion of her practice consisted in representation of aliens facing deportation during the McCarthy era. 8 The nature of Carol King's law practice and her political associations aroused suspicions of the FBI. In 1941, the FBI opened a surveillance file on her, and subjected her to continuous investigation until her death in 1952. 9 The FBI represents that its investigation was devoted exclusively to determining whether Carol King was guilty of political sedition. 10 While the eleven-year investigation amassed a file 1,665 pages in length, 11 no charge was ever made.

Appellant is a writer by profession who intends to publish a biography on her mother-in-law and longtime friend, Carol King. 12 As yet, no significant history of the latter's career has been published. 13 In the course of her research, appellant attempted to obtain information pertaining to Carol King by means of a FOIA request. The FBI eventually responded by releasing to appellant redacted portions of its King investigative file. Ultimately provided were 1,500 pages of the 1,665-page file, and, from most of the 1,500 pages supplied, names and, frequently, substantial passages were deleted. 14

Contesting the sufficiency of the FBI's response to her FOIA request, appellant filed suit in the District Court, 15 and moved for a Vaughn index 16 detailing the grounds for the FBI's exemption claims. 17 Production of the Vaughn index was ordered. 18 Thereafter, the FBI submitted the joint declaration of Special Agents Richard C. Staver and Walter Scheuplein, Jr., 19 and the declaration of John H. Walker of the Immigration and Naturalization Service, 20 attesting to the reasons for excising portions of the King file; it then moved for summary judgment. 21 Appellant in turn moved for summary judgment, or in the alternative to compel a response to outstanding discovery requests. 22

The District Court granted the FBI's motion for summary judgment. 23 It sustained the Exemption 1 contentions, relying on the Staver-Scheuplein declaration, which it found to set forth with "reasonable specificity of detail rather than mere conclusory statements" 24 an adequate description of the portions of the King file withheld, as well as the national security considerations advanced in support of the FBI's refusal to disclose. 25 Similarly, the District Court deemed the declaration a sufficient foundation for the FBI's claims under Exemptions 7(C) and 7(D) that information withheld was gathered pursuant to an investigation for law-enforcement purposes and that its release would constitute an unwarranted invasion of personal privacy or compromise assurances of source confidentiality. 26

Appellant urges us to hold that the District Court erred in crediting the FBI's Exemption 1 and 7 arguments, contending that they shield information in contravention of FOIA's broad disclosure mandate. Specifically, appellant asserts that the Staver-Scheuplein declaration presents only a vague and conclusory description of the material excised pursuant to Exemption 1, wholly inadequate for purposes of ascertaining whether the documents in question have in fact been properly classified, or what harm might result from their production. 27 "How," appellant queries, "can release of ... records of this nature and at this late date possibly damage the national security?" 28 Appellant further contends that the Staver-Scheuplein declaration does not make the threshold showing required for resort to Exemption 7: that the documents in question were compiled for bona fide law-enforcement purposes pursuant to an investigation whose relation to the agency's law-enforcement duties is based on information sufficient to support at least a " 'colorable claim' of its rationality." 29 And, whether or not a law-enforcement purpose originally animated the investigation, appellant insists no considerations of privacy or confidentiality warrant continued withholding of its fruits. 30 While we reject appellant's challenge to the disposition of the Exemption 7 claims in this case, we believe valid objections to the FBI's showing on the Exemption 1 claims have been raised, and remand in order that the District Court secure a fuller elaboration of the FBI's basis for asserting them. 31

II

Exemption 1 of the Freedom of Information Act protects from disclosure information that is "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and [is] in fact properly classified pursuant to such Executive order." 32 An agency may invoke this exemption only if it complies with classification procedures established by the relevant executive order and withholds only such material as conforms to the order's substantive criteria for classification. 33 Appellant challenges, on substantive and not procedural grounds, the propriety of the classification decisions underlying the FBI's Exemption 1 claims. 34

A.

Both appellant and the FBI believe that the directive pertinent to disposition of the Exemption 1 issues in this case is Executive Order 12065, 35 which was in effect when the FBI's classification determinations were made. 36 This order provided that information could be classified only if it concerned:

(a) military plans, weapons, or operations;

(b) foreign government information;

(c) intelligence activities, sources or methods;

(d) foreign relations or foreign activities of the United States;

(e) scientific, technological, or economic matters relating to the national security;

(f) United States Government Programs for safeguarding nuclear materials or facilities; or

(g) other categories of information which are related to national security and which require protection against unauthorized disclosure as determined by the President, by a person designated by the President pursuant to Section 1-201, or by an agency head. 37

Executive Order 12065 further specified that information concerning any of the enumerated matters was eligible for classification as "confidential," the lowest security designation, only if its "unauthorized disclosure ... reasonably could be expected to cause at least identifiable damage to the national security." 38 It also established a presumption against classification: "If there is reasonable doubt ... whether the information should be classified at all ... the information should not be classified." 39

Subsequent to the decision to classify the documents involved in this case, and after commencement of this litigation, President Reagan promulgated Executive Order 12356. 40 This order retains all categories of classifiable information enumerated in Executive Order 12065, 41 but diverges from that order in several other significant respects. The new executive order eliminates the prior order's presumption against classification 42 and modifies the standard for classifying information. While the earlier order prohibited an agency from classifying information unless it could be shown that "unauthorized disclosure reasonably could be expected to cause at least identifiable damage to the national security," 43 the new order seemingly commands classification of all material within certain enumerated categories of sensitive information whose "unauthorized disclosure, either by itself or in the context of other information, reasonably could be expected to cause damage to the national security." 44 While the old executive order in some instances required declassification decisions to be made by weighing the need to protect information against the public interest in disclosure, 45 the new...

To continue reading

Request your trial
611 cases
  • Makky v. Chertoff
    • United States
    • U.S. District Court — District of New Jersey
    • May 31, 2007
    ...the national security context, the reviewing court must give `substantial weight' to such affidavits." Id. (quoting King v. Dep't of Justice, 830 F.2d 210, 217 (D.C.Cir.1987)). Defendants seek to invoke exemption 1, which provides that information "specifically authorized under criteria est......
  • Schoenman v. F.B.I.
    • United States
    • U.S. District Court — District of Columbia
    • September 1, 2008
    ...in seeing that their participation remains secret.'" Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C.Cir.1990) (quoting King v. DOJ, 830 F.2d 210, 233 (D.C.Cir.1987)). Indeed, as noted above, for purpose FOIA Exemption 7(C), the D.C. Circuit has "adopted a categorical rule permitting an agency to......
  • Miller v. U.S. Dept. of Justice
    • United States
    • U.S. District Court — District of Columbia
    • June 24, 2008
    ...determines de novo whether an agency properly withholds information under a claimed exemption. See, e.g., King v. United States Dep't of Justice, 830 F.2d 210, 217 (D.C.Cir.1987). This is true even if national security matters are at issue. See Halperin v. Central Intelligence Agency, 629 F......
  • Willis v. United States Department of Justice
    • United States
    • U.S. District Court — District of Columbia
    • October 10, 2008
    ...in seeing that their participation remains secret.'" Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C.Cir.1990) (quoting King v. DOJ, 830 F.2d 210, 233 (D.C.Cir.1987)). Such is certainly the case here, as Mr. Hardy has explained in substantial detail the potential dangers associated with disclosur......
  • Request a trial to view additional results
1 provisions
  • DC Register Vol 70, No 43 October 27, 2023 Pages 014136 to 014429
    • United States
    • District of Columbia Register
    • Invalid date
    ...interest in seeing that their participation remains secret"'" (quoting Fitzgibbon, 911 F.2d at 767 (quoting, in turn, King v. DOJ, 830 F.2d 210, 233 (D.C. Cir. 1987)); Franklin v. DOJ, No. 97-1225, slip op. at 10 Fla. June 15, 1998) (magistrate's recommendation) (stating law enforcement off......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT