Ray v. Turner

• Decision Date: 15 November 1978
• Docket Number: No. 77-1401,77-1401
• Citation: 587 F.2d 1187,190 U.S.App.D.C. 290
• Parties: Ellen L. RAY and William H. Schaap, Appellants, v. Stansfield TURNER, Director Central Intelligence Agency.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1187

587 F.2d 1187

190 U.S.App.D.C. 290

Ellen L. RAY and William H. Schaap, Appellants, v. Stansfield TURNER, Director Central Intelligence Agency.

No. 77-1401.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 17, 1978.

Decided Aug. 24, 1978.

As Amended Aug. 25, 1978.

As Amended Nov. 15, 1978.

James E. Drew, Washington, D. C., for appellants.

Michael F. Hertz, Atty., Dept. of Justice, Washington, D. C., with whom Barbara Allen Babcock, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., and Morton Hollander and Leonard Schaitman, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee. Harry R. Silver and William Kanter, Attys., U. S. Dept. of Justice, Washington, D. C., also entered appearances for appellee.

Ira M. Lowe and Martin S. Echter, Washington, D. C., were on the brief for amicus curiae Baez, Hayden and Fonda.

Before WRIGHT, Chief Judge, and TAMM and LEVENTHAL, Circuit Judges.

Opinion Per Curiam.

Opinion filed by WRIGHT, Chief Judge, concurring in the remand.

PER CURIAM:

This appeal presents the question whether the district court erred in dismissing a lawsuit under the Freedom of Information Act (FOIA) upon the basis of affidavits supplied by an official of the Central Intelligence Agency (CIA). We find there was error and remand.

I. PROCEDURAL BACKGROUND OF LITIGATION.

Plaintiffs (appellants) Ellen Ray and William Schaap sent identical letters to the CIA requesting "a copy of any file you may have on me." The CIA replied that while it did not have files on plaintiffs, there were documents in CIA files that referred to plaintiffs. The CIA refused to release those documents, and after administrative appeals were exhausted, plaintiffs brought this action under the FOIA. The CIA subsequently released portions of the withheld documents, and the government then moved for summary judgment, relying principally on affidavits of one Eloise Page. The critical affidavit, set out in the appendix, purports to describe the documents at issue and the grounds for the government's claims of exemption. ¹

The district court granted the government's motion for summary judgment and denied plaintiffs' motion for In camera inspection. ² It found that the withheld documents were exempt from disclosure under the FOIA on the basis of Exemption 1 alone, Exemption 3 alone, or the two exemptions coupled together. As to Exemption 1, 5 U.S.C. § 552(b)(1), ³ the court found that the affidavit showed that the documents were properly classified under Executive Order 11,652, 3 C.F.R. 339 (1974). As to Exemption 3, 5 U.S.C. § 552(b)(3), ⁴ the court found that the affidavits stated that the release of the information could reasonably be expected to reveal intelligence sources and methods as well as organizational data, and that 50 U.S.C. §§ 403(d)(3), 403g justified the CIA invocation of Exemption 3.

In a key passage, the district court's opinion stressed that "there has been no credible challenge to the veracity of these averments (in the affidavits) and nothing appears to raise the issue of bad faith." In denying In camera inspection, the district court relied on Weissman v. CIA, 184 U.S.App.D.C. 117, 565 F.2d 692 (1977). Specifically, the court found with respect to Exemption 1 that (t)he affidavits in this record are specific and detailed. The record further indicates that the Agency dealt with plaintiffs' requests in a conscientious manner and released segregable portions of the material. No abuse of discretion has been shown.

Memorandum Opinion at 3.

Regarding Exemption 3, it ruled:

With respect to documents withheld under exemption 3, in camera inspection is seldom, if ever, necessary or appropriate. * * * Exemption 3 differs from other FOIA exemptions in that its applicability does not depend on the factual content of specific documents.

Id. at 4.

On appeal, the government insists that the pertinent documents are exempt under Exemption 1 and are also exempt under Exemption 3. ⁵ Plaintiffs assert that discovery and In camera inspection by the district court was required, because documents 2 through 10 contain segregable material that is not exempt, and because neither document 2 nor document 10 is exempt under Exemption 1.

II. RELEVANT CONSIDERATIONS IN FOIA CASES INVOLVING NATIONAL

SECURITY ISSUES.

The FOIA was passed in 1966, as an amendment to the Administrative Procedure Act, in order to increase disclosure of government information to the American people. Agencies were required to disclose all records that did not come within one of nine explicit exemptions specified by Congress. ⁶ In the event of agency nondisclosure, the Act provided for court review. In any such case, "the court shall determine the matter de novo . . . and the burden is on the agency to sustain its action." ⁷

A. Judicial Interpretations and Legislative Modifications.

In EPA v. Mink, 410 U.S. 73, 81-84, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), the Court considered Exemption 1, which at that time covered matters "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy." 5 U.S.C. § 552(b)(1) (1970). It held that a court should not review the substantive propriety of the classification or go behind an agency affidavit stating that the requested documents had been duly classified pursuant to Executive order. ⁸ The Court said that "Congress chose to follow the Executive's determination in these matters," and In camera inspection to test the propriety of the classification was not authorized. 410 U.S. at 81, 93 S.Ct. at 833.

In 1974 Congress overrode a presidential veto and amended the FOIA for the express purpose of changing this aspect of the Mink case. ⁹ Exemption 1 was modified to exempt only 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) (1976).

Furthermore, the 1974 revision changed the FOIA language describing the role of a reviewing court considering Any claim of exemption. It provided that "the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B) (1976). The Conference Report accompanying the amendments explained that "(w)hile In camera examination need not be automatic, in many situations it will plainly be necessary and appropriate." S.Rep. No. 93-1200, 93d Cong., 2d Sess. 9 (1974), U.S.Code Cong. & Admin.News 1974, p. 6287.

Exemption 3 originally exempted matters "specifically exempted from disclosure by statute." 5 U.S.C. § 552(b)(3) (1970). In FAA Administrator v. Robertson, 422 U.S. 255, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975), the Court held that a statute could "specifically exempt" matters from disclosure even if the statute gave an agency broad discretion to determine whether the information should be withheld. ¹⁰ Concerned about excessive agency discretion, Congress in 1976 passed an amendment to change the result reached in Robertson. Exemption 3 now authorizes nondisclosure of matters "specifically exempted from disclosure by statute . . . provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3) (1976).

B. The Nature of De Novo Review.

Procedures to be observed

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), this court sought to cope with the difficulty of providing de novo review of exemptions claimed by the government. It initiated procedures designed to mitigate the administrative burden on the courts and ensure that the burden of justifying claimed exemptions would in fact be borne by the agencies to whom it had been assigned by Congress.

The court took its cue from a portion of the Supreme Court's Mink opinion that was not overruled by Congress the portion discussing how a court should proceed when there is a factual dispute concerning the nature of the materials being withheld. ¹¹ "Expanding" on the Supreme Court's "outline," the court established the following procedures: (1) A requirement that the agency submit a "relatively detailed analysis (of the material withheld) in manageable segments." "(C)onclusory and generalized allegations of exemptions" would no longer be accepted by reviewing courts. 157 U.S.App.D.C. at 346, 484 F.2d at 826. (2) "(A)n indexing system (that) would subdivide the document under consideration into manageable parts cross-referenced to the relevant portion of the Government's justification." Id. 157 U.S.App.D.C. at 347, 484 F.2d at 827. This index would allow the district court and opposing counsel to locate specific areas of dispute for further examination and would be an indispensible aid to the court of appeals reviewing the district court's decision. (3) "(A) dequate adversary testing" would be ensured by opposing counsel's access to the information included in the agency's detailed and indexed justification and by In camera inspection, guided by the detailed affidavit and using special masters appointed by the court whenever the burden proved to be especially onerous. Id. 157 U.S.App.D.C. at 348, 484 F.2d at 828. ¹²

In proposing the 1974 amendments, the Senate Committee outlined the ruling in Vaughn and added, "The committee supports this approach. . . ." ¹³

The judicial function as emphasized by 1974 amendments

In some of the decisions involving national security issues, there has been confusion...