Schlesinger v. CIA, Civ. A. No. 82-1749.

• Decision Date: 05 March 1984
• Docket Number: Civ. A. No. 82-1749.
• Citation: 591 F. Supp. 60
• Parties: Stephen C. SCHLESINGER, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, Defendant.
• Court: U.S. District Court — District of Columbia

591 F. Supp. 60

Stephen C. SCHLESINGER, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, Defendant.

Civ. A. No. 82-1749.

United States District Court, District of Columbia.

March 5, 1984.

Thomas M. Susman, Ropes & Gray, Washington, D.C., for plaintiff.

Robert E.L. Eaton, Jr., Asst. U.S. Atty., Civil Division, Lee S. Strickland, Sp. Asst. U.S. Atty., Washington, D.C., for defendant.

MEMORANDUM

FLANNERY, District Judge.

This matter came before the court on defendant's motion for summary judgment. Plaintiff in this case seeks, through the Freedom of Information Act (FOIA), access to CIA records relating to the planning, financing and executing of the 1954 coup in Guatemala. The CIA contends that this information is protected by FOIA exemptions one and three. Plaintiff disagrees, and contends that the case in its current posture cannot properly be disposed of on summary judgment. For the reasons set forth below, the court holds that summary judgment is appropriate, and grants defendant's motion.

BACKGROUND

The complaint in this case was filed after plaintiff exhausted his administrative attempts to obtain CIA records relating in any way to the 1954 coup in Guatemala. By letter dated July 12, 1982, after commencement of this action, the CIA provided plaintiff with 31 responsive documents. On September 30, 1982, after further searching, the CIA turned over 134 additional responsive documents. At a status conference shortly thereafter, plaintiff questioned the adequacy of defendant's search, and defendant agreed to institute a new and more thorough search. As a result of this search, defendant discovered a massive "operational" file, containing some 180,000 pages of documents concerning United States involvement in the coup, and so informed plaintiff and the court. According to plaintiff's counsel, defendant's attorney represented to him and others, prior to thorough review of the operational files, that the CIA would not disclose any of the documents therein, see Susman Affidavit at 4-5. Defendant's counsel informed the court on January 14, 1983, that the Agency had completed its review of the bulk of the materials and had concluded that it would not disclose any documents.

On January 24, 1983, CIA Acting Deputy Director for Operations Clair E. George filed a public affidavit, wherein he stated that the disputed documents consisted "strictly of raw, operational documents compiled contemporaneously with the Agency's covert involvement in the 1954 Guatemala coup," and that the documents "reflect the specific and particular intelligence activities undertaken by Agency officers and assets, the methods utilized in the conduct of these activities, and the intelligence sources providing information to the United States." George Affidavit at 5. Mr. George declared that the release of any of the information in the file could reasonably be expected to cause damage, most probably serious damage, to the national security by

(a) revealing particular intelligence activities and methods of continuing utility to the United States;

(b) revealing particular intelligence sources who may remain in danger and which may inhibit prospective sources from agreeing to provide information;

(c) revealing capabilities and the extent of CIA knowledge which may negate current intelligence activities;

(d) officially detailing the nature and extent of the CIA role in the 1954 Guatemala coup, risking damage to American foreign relations throughout the world and particularly in Central America at this time in light of the delicate political situation in the Central American area;

(e) officially detailing the role undertaken and the assistance given by other foreign countries, risking damage to the foreign relations between such countries and the United States;

(f) providing significant foreign relations and propaganda advantage to hostile foreign governments who could use such information against the United States in their dealings with governments in Central America and elsewhere; and

(g) providing a significant counterintelligence advantage to hostile foreign governments who could use such information to counter current United States intelligence collection activities and objectives.

George Affidavit at 7. Mr. George concluded that the information sought by plaintiff was all properly classified pursuant to Executive Order 12356, 47 Fed.Reg. 14874-84 (1982), and was exempt from disclosure under FOIA Exemption 1. Id. at 5-8. In addition, Mr. George determined that because the documents sought contain information about intelligence sources and methods, they are protected from disclosure by 50 U.S.C. § 403(d)(3) and 50 U.S.C. § 403g, and as such fall within the scope of FOIA Exemption 3. Id. at 5, 11-12. Mr. George further determined that other than the description of the documents described above and the justifications for non-disclosure given, no further description or justification could be offered in a public affidavit without compromising critical intelligence considerations. Id. at 8. He, along with counsel for the CIA, indicated that a more detailed classified affidavit would be prepared for the court's in camera review if necessary.

Mr. George stated that he was "fully aware that significant information and speculation concerning the 1954 Guatemala coup is in the public domain," id. at 8, but stressed that the public presence of such unofficial information does not reduce the damage that would be caused by the official revelation of the requested information. Id. at 9-10. He also recognized that the United States Government has officially acknowledged "the fact that the Central Intelligence Agency had some involvement in the Guatemala revolution," but emphasized that "to the best of his knowledge, no other facts or details have ever been officially disclosed and confirmed." Id. at 9. He stated that the official acknowledgement "was very limited in scope and did not with particularity indicate or describe which, if any, military or political forces were supported or opposed, or what, if any, intelligence activities were undertaken by the CIA or others." Id. at 9-10. Mr. George concluded that any further official public disclosure of the purpose, extent, or nature of United States involvement in the coup "could reasonably be expected to cause serious damage to the national security of the United States notwithstanding the passage of time." Id. at 10.

Plaintiff contended that the CIA could not properly withhold each and every line of the disputed documents based solely on the George Affidavit. Plaintiff challenged the completeness of the CIA's review of the 180,000 pages of responsive documents and its determination that none of the material could be segregated and released, and demanded that the CIA provide a more detailed description of the documents and its justifications for withholding them. See Plaintiff's Memorandum of Points and Authorities In Opposition to Defendant's Motion for Summary Judgment (Plaintiff's Opposition) at 3. Plaintiff requested that the CIA be required to submit a classified affidavit in camera, along with sample documents for the court's review, and that plaintiff's counsel be permitted to participate in the court's in camera review. Id. Plaintiff also requested that further discovery be permitted to determine, inter alia, the extent of official and unofficial disclosure of information about the Guatemala coup, Id. at 8-9. Plaintiff contends that all information that has "already been made public by the government or by a third party pursuant to official authorization" and information which, if released, "would cause no injury to national defense or foreign policy interests" should be disclosed. Id. at 3-4.

On October 5, 1983, the court ordered that the CIA submit for the court's in camera review a classified Vaughn affidavit to further describe the disputed documents and further justify their non-disclosure. The court denied the unusual request of plaintiff's counsel to participate in its in camera review of the classified affidavit, see October 5 Memorandum Order. Shortly thereafter, the CIA submitted a detailed and lengthy classified affidavit and several sample documents. The court conducted a careful in camera review of the CIA's submission. The court notes that the CIA's in camera submission in this case was most thorough and well prepared.

DISCUSSION

A. Propriety of Summary Judgment

In a FOIA case, the court may grant summary judgment only if it is satisfied that the moving party has proven that no substantial and material facts are in dispute and that it is entitled to judgment as a matter of law. McGehee v. CIA, 697 F.2d 1095, 1101 (D.C.Cir.1983). The agency has the burden of justifying non-disclosure, Coastal States Corp. v. Department of Energy, 617 F.2d 854, 868 (D.C.Cir.1980), and must sustain its burden through submission of detailed affidavits which identify the documents at issue and why they fall under the claimed exemptions. Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). If the affidavits are clear, specific, and detailed, and there is no evidence in the record contradicting them or demonstrating agency bad faith, then the court need not question their veracity and must accord them substantial weight in its decision, Taylor v. Department of the Army, 684 F.2d 99, 106-07 (D.C.Cir.1982); Hayden v. National Security Agency, 608 F.2d 1381, 1387 (D.C.Cir.1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2156, 64 L.Ed.2d 790 (1980). If, as here, the government asserts that detailed public description of the disputed documents would cause danger to the national security, then the court may order submission of classified affidavits as is necessary for the court's de novo review of the agency's exemption claims; and such classified affidavits must also be accorded substantial weight, see Hayden, 608 F.2d at 1384-87; Phillipi v....