Phillippi v. C.I.A.

• Decision Date: 25 June 1981
• Citation: 211 U.S.App.D.C. 95,655 F.2d 1325
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1325

655 F.2d 1325

211 U.S.App.D.C. 95, 7 Media L. Rep. 2006

Harriet Ann PHILLIPPI, Appellant v CENTRAL INTELLIGENCE AGENCY, Stansfield Turner, Director Central Intelligence Agency.

No. 80-1940.

United States Court of Appeals District of Columbia Circuit.

Argued 20 Feb. 1981.

Decided 25 June 1981.

Mark H. Lynch, Washington, D. C., with whom Susan W. Shaffer, Washington, D. C., was on the brief for appellant.

Marc Richman, Atty., Dept. of Justice, Washington, D. C., with whom Thomas S. Martin, Acting 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 WILKEY and MIKVA, Circuit Judges, and GORDON, ^* Senior District Judge for the Western District of Kentucky.

Opinion for the Court filed by Circuit Judge WILKEY.

Concurring opinion filed by Circuit Judge MIKVA.

WILKEY, Circuit Judge:

This is one of a series of cases involving disputes arising under the Freedom of Information Act (FOIA or Act) between the Central Intelligence Agency (CIA) and private parties seeking more information about the CIA's Glomar Explorer project. The project, as many will recall from reports widely publicized in the media (though never officially confirmed), was a classified CIA program supposedly undertaken to raise a sunken Soviet submarine from the floor of the Pacific Ocean to recover the missiles, codes, and communications equipment onboard for analysis by United States military and intelligence experts. ¹ The project required the development of a vessel outfitted with unprecedented new technology capable of accomplishing the remarkable feat of lifting an object weighing 8.5-million pounds from a depth of 17,000-feet in the open ocean. ² The operation reportedly cost $350 million and met with uncertain success before it was cut short after its cover as a daring venture by Howard Hughes to mine the ocean floor for manganese nodules was blown following a mysterious burglary, in which a handful of armed men overwhelmed a guard and slipped past a sophisticated electronic alarm system, then burned their way into a Hughes safe containing a document describing the project. After the burglary, somewhat garbled information about the Glomar Explorer project somehow ended up in the Los Angeles Times.

When news of the leak reached the CIA, Director William Colby and other officials, encouraged by the enemy's failure during World War II to act on a Chicago Tribune story revealing that the United States had broken the Japanese naval code, scrambled to suppress further publicity about the project. They met with temporary success by briefing editors about the project in exchange for the promises of the editors not to publish accounts of the operation at least until someone else broke the story. An impressive list of news organizations agreed to hold the story on this basis, including the New York Times, the Los Angeles Times, the Washington Post, the Washington Star, the three major television networks, the National Public Broadcasting System, Time magazine, Newsweek, and Parade magazine. But on 18 March 1975, despite the earnest entreaties of Director Colby, columnist Jack Anderson broke the story and a spate of reports immediately appeared throughout the media.

Once the story was out, reporters and editors began to speculate as to why the CIA had undertaken the apparently hopeless task of trying to bottle up the story once it had reached the American press. Time magazine put it this way in an article published 31 March 1975:

(T)here is the puzzle of why so many reporters for major newspapers, magazines and TV networks simultaneously stumbled upon the (Glomar Explorer project) trail. On the morning after, some journalists got the feeling that the CIA had actually been helpful all along in getting the story out, while at the same time it apparently tried to suppress the story. There are several theories .... The last theory goes off into the wild blue yonder, suggesting that raising a Soviet submarine was not (the project's) mission at all, but the supreme cover for a secret mission as yet safely secure. ³

The appellant, Harriet Phillippi, who at the time was a Washington correspondent for Rolling Stone magazine, evidently decided to try to untangle this puzzle by using the Freedom of Information Act. She requested from the CIA "all records related to attempts by Central Intelligence Agency personnel ... to persuade any members of the news media not to broadcast, write, publish, or in any other way make public the events relating to the activities of the Glomar Explorer." ⁴ Following the CIA's refusal to comply with the request, the present litigation ensued.

This case is strikingly similar to a case recently decided by this court, Military Audit Project v. Casey, ⁵ which also involved an attempt to invoke the Freedom of Information Act to acquire information about the Glomar Explorer project. In Military Audit an organization calling itself the Military Audit Project sought from the CIA documents which, among other things, would have revealed the true purpose of the Glomar Explorer project. We held that such information was properly withheld by the CIA under Exemption 1 to the FOIA. ⁶

In the present case the appellant seeks documents that not only might help to reveal the purpose of the Glomar Explorer venture, but its results, if any, as well. We find the documents at issue in the present case to be exempt from disclosure under Exemption 3 of the Act for many of the same reasons which compelled our decision for the CIA in Military Audit. We therefore affirm the district court's grant of summary judgment for the CIA.

I. PROCEDURAL HISTORY

In response to the appellant's March 1975 request for records, the CIA refused even to confirm or deny the very existence of such records. ⁷ The appellant, following an unsuccessful administrative appeal, then brought this action in the United States District Court for the District of Columbia. After an in camera examination of two classified affidavits submitted by the CIA, the district court held that the requested information was protected from disclosure by Exemption 3 of the Act. ⁸ On appeal, this court reversed and remanded because the district court had resorted immediately to in camera proceedings rather than first attempting to create as complete as possible a public record of the basis on which the CIA justified its refusal to respond to the appellant's request. ⁹

After remand, the newly installed Carter administration abandoned the position that the CIA could neither confirm nor deny even the existence of records regarding the Glomar Explorer project; in May 1977 the government acknowledged both that the CIA was responsible for the project and that CIA officials had tried to dissuade members of the press from publishing stories about it. ¹⁰ In particular, the CIA admitted the existence of 154 documents of the sort requested by the appellant. Of these, 16 were then released without deletions, 134 were released with deletions, and 4 were withheld in their entirety. ¹¹ The deletions, described as involving "sensitive details of the (Glomar Explorer ) program," ¹² fell into three categories: (1) transcripts of telephone conversations between then Director of Central Intelligence William Colby and members of the press; (2) CIA descriptions of conversations between members of the press and CIA officials; and (3) CIA memoranda recounting conversations solely between CIA officials.

Unsatisfied by the CIA's disclosures, the appellant pressed on with her litigation. On cross motions for summary judgment the district court ruled for the CIA, relying on Exemption 3 of the Act, which shields from disclosure under the FOIA information specifically exempted by other statutes. ¹³ The shielding statute invoked by the district court was section 102(d)(3) of the National Security Act of 1947, 50 U.S.C. § 403(d)(3), which provides that the "Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure." ¹⁴ The district court expressly did not reach the question whether the information also could properly have been withheld under Exemption 1, ¹⁵ ruling only that under Exemption 3 the CIA need not show that the information withheld is either classifiable or classified, but only that disclosure of the withheld information "can reasonably be expected to lead to unauthorized disclosure of intelligence sources and methods ...." ¹⁶ In concluding that the CIA had made the requisite showing, the district court noted that disclosure of the information sought by the appellant might reveal the purpose of the Glomar Explorer project and the extent to which its goals were accomplished, ¹⁷ and that such disclosure could impair relations between the United States and the country that was the target of the project.

II. Military Audit AND THE GLOMAR EXPLORER SECRETS

The appellants in this case seek documents containing accounts and transcripts of conversations between CIA officials, members of the press, and other CIA officials regarding the purposes and results of the Glomar Explorer project. As noted above, the dispute is highly reminiscent of the litigation recently resolved by our decision in Military Audit Project v. Casey. ¹⁸

In Military Audit we specifically rejected the contention that because some information about the Glomar Explorer has been leaked or officially disclosed by Government officials, all of it must be released in response to FOIA requests. We pointed out that at different times two quite different explanations of the Glomar Explorer project both plausible were provided to the public. The world was first told that the Glomar Explorer was designed as part of a daring project by Howard Hughes to mine the ocean seabed for manganese nodules; this story was widely believed. Later, however, the story changed and the...