Navasky v. Central Intelligence Agency, 77 Civ. 982 (CMM).

• Decision Date: 10 September 1980
• Docket Number: No. 77 Civ. 982 (CMM).,77 Civ. 982 (CMM).
• Citation: 499 F. Supp. 269
• Parties: Victor S. NAVASKY, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, Defendant.
• Court: U.S. District Court — Southern District of New York

499 F. Supp. 269

Victor S. NAVASKY, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, Defendant.

No. 77 Civ. 982 (CMM).

United States District Court, S. D. New York.

September 10, 1980.

COPYRIGHT MATERIAL OMITTED

Clark, Wulf, Levine & Peratis, New York City, for plaintiff; Leon Friedman, Melvin L. Wulf, New York City, of counsel.

Robert B. Fiske, Jr., U. S. Atty., S. D. New York, New York City, for defendant; Patrick H. Barth, Asst. U. S. Atty., New York City, of counsel.

METZNER, District Judge:

This matter is before the court on defendant's motion for summary judgment.

Plaintiff, a journalist and magazine editor, instituted the action pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking disclosure of all documents relating to clandestine book publishing activities of the defendant, Central Intelligence Agency (CIA), throughout the world.¹ Such activity was briefly discussed in the Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities. S.Rep.No. 94-755, 94th Cong. 2d Sess. (1976) (Church Committee Report), vol. 1 at 192-95, 198-99, 453-54.

For the reasons discussed below, partial summary judgment is granted at this time.

In 1977, after plaintiff's initial request for the subject documents had been denied through administrative appeal, plaintiff filed this suit to require production of three categories of documents: (1) "The titles, authors and publishers of the `well over a thousand books' referred to in Volume I" of the Church Committee Report; (2) "All CIA materials made available to the members of the staff of the Church Committee relating to books produced, subsidized or sponsored by the CIA up to the present time;" and (3) "All other CIA materials and files relating to" such books "whether or not made available to the Church Committee."

The CIA in its answer claimed exemption under the FOIA. Plaintiff then filed a motion for a detailed justification and index of the CIA's claims of exemption pursuant to Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). The CIA responded with an index of 85 documents in answer to the first two categories of plaintiff's request for production.² A 20-page affidavit of John H. Stein, Associate Deputy Director of the Directorate of Operations of the CIA, accompanying the index, set forth the justification for withholding the documents. Expurgated copies of 61 of the 85 documents were attached to the index, with all substantive content deleted. On the basis of these submissions, the CIA now moves for summary judgment.

Before turning to the merits of the instant motion, the court will dispose of the question of in camera inspection that has arisen as a result of the order of October 12, 1979. At that time the court ordered production of certain of the indexed documents for in camera inspection. After further consideration, however, it has become clear that in camera inspection would serve no useful purpose at this time.

There is no doubt that, subsequent to the 1974 amendments to the FOIA, a court may order in camera inspection of exemption 1 and 3 materials. See, e. g., Lead Industries Association, Inc. v. Occupational Safety and Health Administration, 610 F.2d 70, 87 (2d Cir. 1979); Ray v. Turner, 587 F.2d 1187, 1194, 1195 (D.C.Cir.1978); Weissman v. CIA, 565 F.2d 692, 696 (D.C. Cir.1977); Bell v. United States, 563 F.2d 484, 487 (1st Cir. 1977).

"The ultimate criterion is simply this: whether the district judge believes that in camera inspection is needed in order to make a responsible de novo determination on the claims of exemption." Ray v. Turner, supra at 1195.

In camera inspection is essential to responsible de novo determination where the agency's public description of the withheld material is insufficient to allow the court to determine whether its nature is such as to justify nondisclosure under the claimed exemption, or where the court, based on the record before it, wishes to satisfy an "uneasiness" or "doubt" that the exemption claim may be overbroad. Ray v. Turner, supra at 1195; Lamont v. Department of Justice, 475 F.Supp. 761, 768-69 (S.D.N.Y.1979).

In the instant case, there is no issue as to the nature of the items deleted by the CIA. Plaintiff's argument is that the materials as described by the agency are not properly withheld. Furthermore, for the reasons discussed below, it is premature for the court to determine whether some of the defendant's claims are overbroad and whether nonexempt portions can be segregated. Resolution of these questions demands more complete agency justification of certain of its exemption claims. See Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 833 (D.C.Cir. 1979). The court therefore withdraws the order for in camera inspection.

Defendant justifies its nondisclosure of the material on the basis of FOIA exemptions 1, 3 and 5. 5 U.S.C. § 552(b)(1), (3) and (5).

Exemption 1 excludes 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). The CIA claims that the deleted material is currently and properly classified pursuant to Executive Order 12065, 3 Fed.Reg. 190 (June 28, 1978) (the EO), under which information concerning "intelligence activities, sources or methods" or "foreign relations or foreign activities of the United States" may be classified if "an original classification authority ... determines that its unauthorized disclosure reasonably could be expected to cause at least identifiable damage to the national security." EO 12065 § 1-301(c), (d), § 1-302.

Exemption 3 excludes "matters that are ... specifically exempted from disclosure by statute ...." The CIA relies on the final proviso of section 102(d)(3) of the National Security Act of 1947 (sometimes referred to as the CIA charter), 50 U.S.C. § 403(d)(3), which states that "the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure."

Exemption 5 exempts "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency."

The principal issues raised herein involve the question of whether exempt status should be accorded to the focal item of plaintiff's request, namely, "the list of English language books, published in the United States with secret CIA funds," and more specifically, "the authors and titles of American — made books where the author was unaware of CIA involvement." Plaintiff requested the other materials "only to insure that the request would encompass his chief interest ..." and the issues arising with respect to them do not require extended discussion.

Several general principles guide the court in its review of the CIA's exemption claims herein. First, the court must make a de novo determination, but in doing so it must accord "substantial weight" to agency affidavits. Hayden v. National Security Agency/Central Security Service, 608 F.2d 1381, 1384 (D.C.Cir.1979); Ray, supra at 1194; Weissman, supra at 697 n. 10; S.Rep.No.1200, 93d Cong., 2d Sess. 12 (1974). Second, the agency has the burden of justifying nondisclosure by establishing the applicability of the exemption to the particular material. 5 U.S.C. § 552(a)(3); Hayden, supra, at 1386; Vaughn v. Rosen, supra at 823. Specifically, "if the exemption is claimed on the basis of national security, the District Court must ... be satisfied that proper procedures have been followed and that by its sufficient description the contested document logically falls into the category of the exemption indicated." Ray, supra at 1195; Weissman, supra at 697. See also, Hayden, supra at 1387. Third, the FOIA exemptions are to be construed narrowly, "in such a way as to provide the maximum access consonant with the overall purposes of the Act." Vaughn, supra at 823. See also, Hayden, supra, at 1386; Phillippi v. Central Intelligence Agency, 546 F.2d 1009, 1011 n. 2 (D.C.Cir.1976). Finally, "it is well settled in Freedom of Information Act cases as in any others that `summary judgment may be granted only if the moving party proves that no substantial and material facts are in dispute and that he is entitled to judgment as a matter of law.'" Founding Church of Scientology, 610 F.2d at 836, quoting from National Cable Television Ass'n v. FCC, 479 F.2d 183, 186 (D.C.Cir.1973).

With these principles in mind, we turn now to the contentions of the parties.

We will first discuss exemption 3. Plaintiff contends that the activities concerning which he is seeking information were ultra vires the CIA charter. The court is aware of four cases in which illegal CIA activity was claimed as the basis for denying the exemption. In Weissman v. CIA, 565 F.2d 692 (D.C.Cir.1977), the court found that there was no basis for justification under exemption 7 where the action was illegal under the CIA charter. However, that holding was predicated on the limitation in exemption 7 to a "lawful national security intelligence investigation ...." (Emphasis added.) However, the court remanded the matter to the district court to determine whether the same nondisclosures were justified under exemption 3. The inference to be drawn from such action is that illegality is not a bar to an otherwise valid justification under exemption 3.

A similar inference flows from the remand in Marks v. Central Intelligence Agency, 590 F.2d 997 (D.C.Cir.1978).

This position has been confirmed, albeit somewhat cryptically, in the footnote of a recent decision involving an exemption 3 claim by the National Security Agency (NSA). Founding Church of Scientology, supra at 829 n. 49. The court, after citing the plaintiff's...