Marks v. Central Intelligence Agency, Civ. A. No. 75-1735.

• Decision Date: 03 November 1976
• Docket Number: Civ. A. No. 75-1735.
• Citation: 426 F. Supp. 708
• Parties: John D. MARKS, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY and William E. Colby, Director, Central Intelligence Agency, Defendants.
• Court: U.S. District Court — District of Columbia

426 F. Supp. 708

John D. MARKS, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY and William E. Colby, Director, Central Intelligence Agency, Defendants.

Civ. A. No. 75-1735.

United States District Court, District of Columbia, Civil Division.

November 3, 1976.

David A. Barrett, John H. F. Shattuck, Melvin L. Wulf, American Civil Liberties Union Foundation, New York City, Jerry J. Berman, Washington, D. C., for plaintiff.

John K. Villa, Sp. Asst. U. S. Atty., Robert N. Ford, Asst. U. S. Atty., Earl J. Silbert, U. S. Atty., Washington, D. C., for defendants.

MEMORANDUM AND ORDER

CORCORAN, District Judge.

A. Background

The plaintiff, John D. Marks, on October 20, 1975, brought this action pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (1970), as amended, 5 U.S.C. § 552 (Supp. IV 1974) FOIA. He seeks disclosure of "all files, dossiers, communications, computer printouts and other documents" concerning him which defendant Central Intelligence Agency CIA then, or in the past, maintained.

Forty-one documents were identified by the CIA as responsive to Marks' FOIA request. According to affidavits filed by the defendants, these materials were largely generated in the course of a national security intelligence investigation of the plaintiff, a former State Department employee with access to classified materials. That investigation was undertaken by the Office of Security, CIA, "when it learned that he Marks planned to publish a substantial quantity of classified information and when it was reported by sources that he was contacting present and former government employees in sensitive positions in an attempt to secure specific classified information from them." Twenty-seven of the items identified have been released to the plaintiff in their entireties or with uncontested deletions. Consequently, fourteen documents remain in issue, viz., Documents Nos. 6, 7, 10, 14, 16, 19, 20, 21, 22, 23, 25, 26, 27 and 29.¹

Presently before the Court are plaintiff's motion for in camera review and defendants' motion for summary judgment.

B. In Camera Review

Addressing first the motion for in camera review of the records in question, the Court rejects as unpersuasive plaintiff's suggestion that the various affidavits submitted in support of defendants' summary judgment motion are insufficiently detailed under the standards articulated in 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). The Court of Appeals concluded in the Vaughn case that in order to test properly the classification of claims to exemptions under the FOIA, the government must provide to the district court (a) a "relatively detailed" analysis, in manageable segments, specifying the justifications for refusing to disclose information and (b) an itemization and indexing which would "correlate statements made in the Government's refusal justification with actual portions of the document."² 157 U.S.App.D.C. at 346-48, 484 F.2d at 826-28.

For the purposes of this litigation, defendants have numbered and concisely identified relevant agency records and exemptions invoked in the affidavit of Robert S. Young. A reasonably detailed statement of the nature of information relied upon as justification for non-disclosure of all or specific segments of each document, correlated to the numbering system of the Young affidavit, is contained in the affidavits of Robert W. Gambino and Charles W. Briggs. After careful review of these submissions and comparison with defendants' answers to interrogatories, the CIA's letters to plaintiff, and portions of the ten articles in issue which have been released to Marks, we are satisfied that the defendants' efforts to itemize and index relevant materials and to justify nondisclosure with reference to particular information are sufficient under the Vaughn criteria. Accordingly, in camera review is unnecessary³ and the motion therefore is denied.

C. Summary Judgment

Turning to defendants' motion for summary judgment, we note that the CIA has invoked three FOIA exemptions with respect to the fourteen relevant documents, viz., 5 U.S.C. § 552(b)(1) exemption 1, (b)(3) exemption 3, and (b)(7) exemption 7. Marks has challenged the latter two exemptions as unavailable to the CIA as a matter of law.

(1) Exemption 3 — 5 U.S.C. § 552(b)(3)

Section 552(b)(3) provides that the FOIA's mandatory disclosure provisions do not apply to matters which are "specifically exempted from disclosure by statute." The defendants claim this exemption upon the authority of section 102(d)(3) of the National Security Act of 1947, 50 U.S.C. § 403(d)(3) NSA, or section 7 of the Central Intelligence Agency Act of 1949, 50 U.S.C. § 403g CIAA, or both.⁴ Marks concedes that section 7 of CIAA falls within the purview of the exemption but contends that section 102(d)(3) of NSA does not. However, plaintiff fails to recognize that both the Senate and Conference Reports on the 1974 FOIA amendments explicitly state the Congressional intent that section 102(d)(3) of NSA shall be considered an exemption 3 statute.⁵ S.Rep. No. 93-854, 93d Cong., 2d Sess. at 16 (1974); S.Rep. No. 93-1200, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.Code Cong. & Admin.News at p. 6290; see FAA Administrator v. Robertson, 422 U.S. 255, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975); Weissman v. CIA, Civil Action No. 75-1583 (D.D.C. April 14, 1976); Phillippi v. CIA, Civil Action No. 75-1265 (D.D.C. December 1, 1975), appeal docketed, No. 76-1004 (D.C.Cir. December 3, 1975); Richardson v. Spahr, 416 F.Supp. 752 (W.D. Pa.1976). The Court therefore finds, contrary to the position taken by the plaintiff, that both sections 102(d)(3) of NSA and 7 of CIAA are "statutes" within the purview of exemption 3 of the FOIA.

(2) Exemption 7 — 5 U.S.C. § 552(b)(7)

Section 552(b)(7) provides, inter alia, that public disclosure under the FOIA is not required where the matters involved are:

investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel . . ..

Marks has attacked the defendants' claim to exemption 7 arguing that materials generated in the course of a CIA national security intelligence investigation are not "investigatory records compiled for law enforcement purposes." Nothing we read in either the National Security Act or the FOIA, however, requires the suggested interpretation, and the language and legislative history of exemption 7 strongly suggest a different result.

Subsection (b)(7)(D) of the FOIA provides that a "lawful national security intelligence investigation" conducted by "an agency" is proper under exemption 7. Since (b)(7)(D) contains specific language which limits the more general terms of section (b)(7), the inclusion of such language in (b)(7)(D) indicates that Congress considered a "lawful national security investigation" conducted by an agency to be a "law enforcement purpose" for exemption 7 purposes.

Moreover, in the legislative history of the 1974 FOIA amendments, Congress acknowledged the validity of the CIA's use of national security intelligence investigations to protect sensitive information and endorsed the applicability of exemption 7 to records compiled in the course of such activities:

The conference added language also protecting confidential sources by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation.

The attempt here was to protect Federal Bureau of Investigation records, Central Intelligence Agency records, and the files of other Federal law enforcement agencies. "National security" was to be strictly construed to refer to military security, national defense, or foreign policy. The term "intelligence" was intended to apply to positive intelligence gathering activities, counter intelligence activities, and background security investigations by governmental units authorized to perform such functions. The Freedom of Information Act Amendments of 1974, "A History of the Legislative Proceedings," U.S.Cong. Joint Comm. Print, Sub-Comm. on Administrative Practice and Procedure, 94th Cong., 1st Sess. (1975), at 115-116 (emphasis supplied).

The record in this action reflects that the national security intelligence investigation of the plaintiff was undertaken pursuant to the authority of 50 U.S.C. § 403(d)(3) to protect "intelligence sources and methods from unauthorized disclosure" by a former, highly placed government employee with Top Secret and Code Word clearances who had access to highly classified materials and who "has demonstrated and continues to demonstrate a predilection to divulge such material." The Court is of the opinion that records generated by the defendants in the course of that investigation are "investigatory records compiled for law enforcement purposes" under exemption 7.

(3) Exemption 1 — 5 U.S.C. § 552(b)(1)

Finally Marks has challenged certain deletions made by the CIA from materials supplied to him. The agency relies on exemption 1.

Exemption 1 permits non-disclosure of matters which are "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy" and which are "in fact properly...