Sims v. Central Intelligence Agency, s. 79-2203
| Decision Date | 29 September 1980 |
| Docket Number | Nos. 79-2203,79-2554,s. 79-2203 |
| Parties | John Cary SIMS et al. v. CENTRAL INTELLIGENCE AGENCY et al., Appellants. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Michael Kimmel, Atty., Dept. of Justice, Washington, D. C., with whom Alice Daniel, Asst. Atty. Gen., Charles F. C. Ruff, U. S. Atty., and Robert E. Kopp, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellants.
Paul Alan Levy, Washington, D. C., with whom David C. Vladeck and Alan B. Morrison, Washington, D. C., were on the brief, for appellees.
Before WRIGHT, Chief Judge, MIKVA, Circuit Judge, and MARKEY, * Chief Judge, United States Court of Customs and Patent Appeals.
Opinion for the court filed by Chief Judge J. SKELLY WRIGHT.
This appeal presents two issues concerning the obligations of the Central Intelligence Agency (CIA) under the Freedom of Information Act (FOIA). 1 In response to a citizen request for the names of persons and institutions who conducted scientific and behavioral research under contracts with or funded by the CIA, the Agency asserts two statutory exemptions from the disclosure requirements of the FOIA. Invoking Exemption 3, 2 the Agency claims that the requested material is "specifically exempted from disclosure" by the terms of the National Security Act. 3 The Agency also cites Exemption 6, which shields "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy (.)" 4 The District Court denied the applicability of either exemption to the facts in issue and granted summary judgment to the appellees who requested the documents. 5 In reviewing the District Court's analysis of the issue presented under Exemption 3, we are unable to conclude that the court reached its decision through application of the proper legal standard. We therefore remand the case for additional proceedings. With regard to Exemption 6, the decision of the District Court is affirmed, although, as explained below, we differ with the court's analysis of the issue presented.
Between 1953 and 1966 the CIA sponsored extensive research concerning "chemical, biological, and radiological materials capable of employment in clandestine operations to control human behavior." 6 Code-named MKULTRA, the CIA's research program included 149 subprojects undertaken on a contract basis. CIA records document the participation of at least 80 institutions and 185 researchers. 7 Because the CIA funded MKULTRA largely through a front organization, many of the participating individuals and institutions apparently had no knowledge of their involvement with the Agency. 8
On the basis of available documents, it appears that the CIA originally conceived MKULTRA as a defensive response to possible use by the Soviets and the Chinese of chemical and biological agents as instruments of interrogation and brainwashing. 9 Later, however, the Agency expanded the scope of the program to include efforts to develop chemical and biological agents for use by the CIA. At least some of the subprojects tested chemical and biological substances by administering them to human subjects. Some of the subjects volunteered for their experimental role. Others were unwitting participants, who may never have known what happened to them. At least two persons died as the result of MKULTRA experiments. The extent of possible damage to the health of others remains unknown, because CIA records fail to disclose the identities of all experimental subjects.
The abuses associated with MKULTRA achieved broad publicity as a result of investigations and published reports by an executive commission chaired by Vice President Nelson Rockefeller 10 and a congressional committee led by Senator Frank Church. 11 Nonetheless, the details of the project's history remain mysterious. At the direction of then Director Richard Helms, the CIA destroyed most of its substantive records pertaining to the project in 1973. Investigative efforts therefore depended largely on oral testimony. In 1977, however, the Agency located some 8,000 pages of previously undisclosed documents related to the project. 12 Consisting mostly of fiscal and financial records, the new material had escaped the search of the archivists who conducted the earlier purge. In addition to general descriptions of 149 subprojects, the new documents contained the names of persons and institutions who had contracted to undertake research.
Upon discovery of the project data, CIA Director Stansfield Turner notified the Senate Select Committee on Intelligence, and he testified at a joint hearing of the Select Committee on Intelligence and the Subcommittee on Health and Scientific Research of the Senate Committee on Human Resources. The CIA subsequently provided the Joint Committee first with summary reports and then with copies of the documents themselves. Although the CIA's records listed participating researchers and institutions, Admiral Turner requested that the Committee treat the names as confidential. The Committee has honored this request.
In a letter dated August 22, 1977, following the conclusion of congressional hearings, John C. Sims and Dr. Sidney M. Wolfe respectively an attorney and a physician employed by the Nader group Public Citizen filed a request under the Freedom of Information Act for a list of the names of institutions and researchers who had conducted research under the MKULTRA program, as revealed in any existing MKULTRA documents. 13 According to submissions filed with the court by the CIA, the documents within the scope of the appellees' request contain a total of 265 names: the names of 80 institutions and 185 individual researchers. Upon receipt of the document request, the CIA contacted each of the 80 institutions to ask if they would consent to disclosure of their identities. The Agency made no parallel effort to communicate with the individual researchers. Of the 80 institutions, 59 agreed to disclosure. Their names were revealed to appellees on June 13, 1978. The Agency has also permitted appellees to examine the surviving financial records for the MKULTRA subprojects undertaken by the other persons and institutions, but with their names deleted. In other words, the CIA continues to withhold the names of the 21 research institutions that declined to authorize release of their identities as well as the names of all of the 185 individual researchers listed in MKULTRA files. Dissatisfied with the extent of the information provided to them, appellees brought this FOIA action on November 30, 1978.
In a memorandum opinion dated April 12, 1979 14 the District Court held that the institutions and researchers did not, as asserted by the CIA, qualify for withholding under Exemption 3 because they did not constitute "intelligence sources" within the meaning of 50 U.S.C. § 403(d)(3). With regard to the Exemption 6 argument, the court requested that the parties submit supplemental memoranda on the relevance of possible express or implied promises by the CIA to maintain the confidentiality of the researchers whose work it had funded. 15 The court also asked the CIA to draft letters to the researchers and institutions soliciting their understandings of Agency obligations to maintain secrecy. 16 On May 14, 1979 the CIA submitted a further memorandum, an affidavit by Admiral Turner, 17 and a draft of a form letter suitable for mailing to individual researchers. But the Agency declined to assert reliance on a contract theory as its basis for withholding, and it reargued its position that the involved institutions and researchers should be considered "intelligence sources" as a matter of law. In an opinion of August 7, 1979 Judge Oberdorfer rejected both defenses. 18 The court adhered to its prior holding that the institutions and researchers did not constitute "intelligence sources" because the Agency had not shown that "its decision to treat the MK-ULTRA institutions and researchers as 'intelligence sources' under § 403(d)(3) is not an overbroad application of the term, too susceptible to administrative discretion to pass muster under (FOIA Exemption) (b)(3)." 19 Regarding Exemption 6, the court determined that it could not accept the position of the Agency without additional information as to whether "any researcher had any reasonable expectation that his or her participation would be anonymous, as to whether any researcher has any other privacy interests which might be compromised by disclosure * * * or whether any researcher has any other objection or reason for objection to disclosure of his or her name." 20 Judge Oberdorfer again invited the CIA to communicate with the individual researchers and apprise the court of their responses by October 1, 1979. The court also gave the Agency additional time to reconsider its decision not to rely on Exemption 1 to the FOIA, which authorizes withholding of documents that are properly classified in order to protect national security interests in defense or foreign policy. 21 The CIA chose not to pursue the suggestions of the District Court. The Agency adhered to its view that its Exemption 6 claim required no communication with the individual researchers, and it filed no papers asserting that the names in issue could properly be classified to protect the national security under Exemption 1. 22 A final judgment ordering disclosure of the researchers' names was entered on November 30, 1979. 23 This appeal ensued.
The Freedom of Information Act, under which this case arises, prescribes with unmistakable clarity the role of the courts in evaluating agency claims of exemption. The basic policy of the Act is to compel...
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