Cynthia King v. United States Department of Justice

KING, Appellant, Cynthia DEPARTMENT STATES

UNITED

OF JUSTICE.

No. 84-5098. Appeals, Court Circuit.

District of Columbia

Argued Dec. Sept.

Decided Sept.

As Amended however, most, in redacted form.3 uments — contends that its decision to portions requested informa-

withhold by Exemptions 1 7 of tion is authorized D.C., Washington, Trushel, Timothy Act,4 respectively except from appellant. mandate, disclosure documents FOIA’s Justice, Sheehan, Dept. of Charles J. for national reasons and classified of Columbia District Court the Bar of during gathered other material in- certain vice, by special leave pro hac Appeals, vestigations purposes. for law-enforcement diGenova, Joseph Court, E. whom challenges applicability ei- Appellant and R. Royce C. Lamberth Atty., U.S. exemption in the circumstances ther Lawrence, Attys., U.S. Wash Asst. Craig here.5 presented brief, D.C., appel on the ington, were ap- by District Court denied motions lees. pellant summary judgment or in the STARR, and ROBINSON Before compel discovery, rejected alternative WRIGHT, Judges, and Senior Circuit request inspec- appellant’s for in-camera Judge. Circuit tion, granted and the FBI’s motion for summary judgment.6 appeal This ensued. by Court filed Opinion for the W. Judge SPOTTSWOOD Circuit

ROBINSON, III. I concurring part and Opinion here The records whose disclosure is by concurring judgment filed part issue of an FBI surveillance file on are Judge Circuit STARR. compiled during King the 1940’s and Carol ROBINSON, III, W. Cir- SPOTTSWOOD prominent rights 1950’s. She was a civil Judge: cuit practice attorney who devoted her to de- minorities, aliens, un- fending radicals and of Information Act In this Freedom obscure;7 ion members both famous and (FOIA)1 case, King, appellant, Cynthia portion practice a of her and substantial production by the Federal Bureau seeks facing representation of aliens consisted (FBI) relating Investigation of documents during McCarthy era.8 deportation mother-in-law, King, her deceased Carol King’s practice The nature of Carol law rights attorney about a civil and activist suspi- writing political and her associations aroused appellant is a whose career book.2 opened many doc- cions of the FBI. In The FBI has released (1982); 552(b)(7) (as 1985) (as 552(b)(1) (1982 Supp. id. § § U.S.C. & II 4. 5 U.S.C. 1. 5 Freedom of Information Reform Information Reform amended amended Freedom of 99-570, N, 99-570, N, Act of Pub.L. No. subtit. subtit. Act of Pub.L. No. 3207-49 § (1986)). 100 Stat. 100 Stat. §§ (1986)). Amend- For a discussion of the 1986 they one of the ments as affect here, Justice, statutory King Dep exceptions two involved 5. See v. United States ‘t infra F.Supp. at 289. note 136. Justice, King Dep’t 6. Id. v. United States (D.D.C.1983). F.Supp. Motion for Sum- See Exhibits A-J to Plaintiffs Alternative, Or, mary Judgment To Com- one-page In the documents to 3. The FBI referred two Response pel Interrogatories and Immigration Answers and Naturalization Service Documents, King Request (INS) requester. for Production response for review and Justice, Dep’t Civ. No. 81-1485 United States King 2, 13, 1982), (D.D.C.) (filed Appeal Record on Oct. F.Supp. 296. INS released these (R.) (hereinafter Plaintiff’s Motion for Sum- 27A one infor- documents but deleted the name of mary Judgment]. mant, id., appellant withholding of which 36-37; Appellant also contests. See Brief for Reply Appellant Brief for 8. Id. her, Court,15 subjected her filed suit in the file on District a surveillance moved investigation until her death continuous Vaughn for a detailing index16 represents that its in- The FBI in 1952.9 grounds for the FBI’s claims.17 exclusively to de- vestigation devoted was Vaughn Production of the index was or- King guilty termining whether Carol Thereafter, dered.18 the FBI submitted the the eleven- sedition.10 While political joint Special Agents declaration of Richard 1,665 investigation amassed a file year Jr.,19 Scheuplein, C. Staver and Walter charge length,11 no was ever pages the declaration of John H. Walker of the made. Immigration Service,20 and Naturalization by profession Appellant is a writer who attesting excising to the reasons for por- biography publish on her moth- intends file; tions of the it then moved for friend, longtime King.12 Carol er-in-law summary judgment.21 Appellant in turn history yet, significant no of the latter’s As summary judgment, moved for or in the published.13 In the has been course career compel response alternative to to out- research, appellant attempted of her to ob- standing discovery requests.22 pertaining King to Carol tain information granted The District Court the FBI’s mo- request. by means of a FOIA summary judgment.23 tion for It sustained by releasing appel- eventually responded contentiоns, portions King investiga- Exemption relying lant redacted of its on the 1,500 Ultimately provided file. were declaration, tive Staver-Scheuplein which it file, 1,665-page and, pages of the from found speci- to set forth with “reasonable 1,500 pages supplied, most of the names ficity of conclusory detail rather than mere and, frequently, passages substantial were adequate description statements”24 an deleted.14 portions King withheld, file Contesting sufficiency well as the national of the FBI’s considerations response request, appellant her support FOIA advanced in of the FBI’s refusal to Rosen, Vaughn 9. Joint Declaration of Richard C. Staver and 16. See Jr., denied, Scheuplein, King (1973), Walter v. United States 484 F.2d 820 cert. 415 U.S. Justice, (D.D.C.) (filed Dep’t (1974). Civ. No. 81-1485 94 S.Ct. 39 L.Ed.2d 873 1982) Jan. R. 16 cited as [hereinafter Staver-Scheuplein Declaration]. R. 17. 3. Staver-Scheuplein 10. The declaration avers that 18. R. 5. compiled pur- the file was for law-enforcement poses pursuant predecessor versions of 18 Declaration, Staver-Scheuplein 19. See (1982) (rebellion insurrection), U.S.C. § 2383 or parts: note 9. The declaration consists of two (seditious conspiracy), id. 2384 § and id. 2385 first, Staver, by Special Agent sets forth the (overthrow Government). Staver-Scheu- grounds Exemption position for the FBI’s and Declaration, 16; plein supra note R. see second, by Special Agent Scheuplein, ad- (reproducing also text at note 147 declara- infra claims, remaining withholding dresses the FBI’s part). tion in relevant including Exemption those under 7. Declaration, Staver-Scheuplein 35, R. 16. Walker, King 20. Declaration of James H. Justice, Dep't Civ. No. 81-1485 12. See Exhibit J to Plaintiffs Motion for Sum- (D.D.C.) (filed 1982), Jan. R. 19. The Walk- mary Judgment, supra note R. 33. by er declaration addresses the action taken INS 7(D). Exemption in the name of See notes Appellant 13. Brief for at 34. supra. Justice, King Dep’t v. United States F.Supp. Exhibit A 21. R. 16. Staver-Scheuplein supra note R. pages by 16. INS released the two referred to it 22. R. 26A. FBI, supra, see note 3 but deleted an infor- purportedly pursuant Exemp- mant's name Justice, King v. United 7(D). Dep't See v. United States F.Supp. at 289. F.Supp. 15. R. 1. 24. 586 at 291. withholding ued of its fruits.30 While we the District Court Similarly, disclose.25 challenge reject appellant’s disposi- a sufficient founda- the declaration deemed Exemptions case, claims under FBI’s

tion for the tion of the 7 claims this 7(D) withheld 7(C) that information objections to FBI’s we believe valid investigation to an gathered pursuant showing Exemption 1 claims have on the purposes and that its for law-enforcement raised, remand in been order that constitute unwarranted release would District Court secure a fuller elaboration compromise privacy or personal invasion asserting the FBI’s basis for them.31 confidentiality.26 of source assurances the Dis- urges us to hold that Appellant II crediting the FBI’s erred trict Court Exemption 1 of the of In Freedom arguments, contending Exemption 1 and 7 protects Act from disclosure in formation in contraven- they shield “specifically authorized formation disclosure mandate. broad tion of FOIA’s under criteria established an Executive appellant asserts Specifically, kept order to be secret the interest presents only Staver-Scheuplein declaration foreign policy defense or national [is] conclusory description of the vague pursuant properly in fact classified to such pursuant excised material agency may order.”32 An in Executive inadequate purposes of ascer- wholly only complies if it voke question taining the documents whether procedures classification established classified, properly in fact been have and withholds relevant executive order produc- their might result from what harm such material as conforms to the order’s “How,” queries, appellant “can re- tion.27 nature and at substantive criteria for classification.33 records of this lease ... damage possibly Appellant challenges, the national this late date on substantive and security?”28 Appellant further contends procedural grounds, propriety not Staver-Scheuplein declaration does that the underlying classification decisions showing required not make the threshold FBI’s 1 claims.34 Exemption 7: that the doc- for resort to question compiled for bona uments were A. pursuant purposes fide law-enforcement appellant and the FBI believe that Both agen- investigation an whose relation to the disposition pertinent to the directive cy’s law-enforcement duties is based Exemption 1 issues in this case is Execu- support sufficient to at least a information “ 12065,35 Order which was effect tive rationality.”29 ‘colorable claim’ of its determina- when the FBI’s classification And, whether or not a law-enforcement provided made.36 This order tions were originally investiga- purpose animated the if tion, could be classified that information appellant insists no considerations of privacy confidentiality or contin- it concerned: warrant 552(b)(1) (1982). U.S.C. § 25. Id. at 289-292. 32. 5 Justice, similarly Dep't 26. The court Id. 292-296. sustained Lesar v. United States 200, 211, (1980); withholding U.S.App.D.C. claim the INS under 636 F.2d 290, 298, 7(D). Turner, App.D.C. Ray 190 U.S. (1978); Halperin Department 124, 128, State, 565 F.2d Appellant 27. Brief 7-18. (1977). Id. at 18. Appellant at 8. 34. Brief for Webster, 29. See Pratt v. (1982); (1978). Fed.Reg. Brief for 35. 43 Appellant at 18. 7-8; Appellee Appellant Brief for Brief for Appellant Brief for (citing 23-37. Lesar v. United States at 10 n. 4 480). accompanying 31. See note 190 text. 636 F.2d at infra information classified at all weapons, opera- or should be ... (a) military plans, tions; the information should not be classified.”39 information; (b) government foreign Subsequent classify to the decision activities, or (c) intelligence sources case, documents in this involved after methods; litigation, commencement of this President foreign or activi- (d) foreign relations Reagan promulgated Executive Order States; United ties of the categories all 12356.40 This order retains scientific, technological, (e) or econom- enumerated of classifiable information relating to the securi- national ic matters 12065,41 diverges Executive Order but from ty; significant that order in other several re- (f) States Government Pro- United spects. The new executive order elimi- safeguarding nuclear materi- grams for prior against presumption nates the order’s facilities; or als or classification42 and mоdifies the standard categories of (g) information other classifying information. While the ear- security to national related which are prohibited agency order from lier an classi- protection require against unau- fying unless it could be information shown by as disclosure determined thorized reasonably that “unauthorized disclosure President, by person designated by the expected could be to cause at least identifi- pursuant Section President damage security,”43 able to the national head.37 by seemingly the new order commands classi- specified 12065 further Executive Order fication of all material within certain enu- concerning any of the enu- categories merated of sensitive information eligible matters was for classifica- merated disclosure, whose either “unauthorized “confidential,” lowest itself or in of other the context informa- if designation, only its “unauthorized dis- tion, expected to reasonably could be cause reasonably expected could closure ... be damage security.”44 to the national While damage identifiable cause at least old executive order some instances security.”38 It also established a national required declassification decisions presumption against classification: “If protect weighing doubt ... the made the need to in- there is reasonable whether 37. Exec. Order 12065, 1-301, thirty (30) Fed.Reg. days.” Fed.Reg. No. in 47 at 14875. Cf. § 43 1.3(a), Additionally, (b) text § at 28951. at note 39. appear po- of all would to make classification 38. Id. 1-104, Fed.Reg. at 43 28950. A doc- § falling tentially damaging information within might only as if its ument be classified "secret” specified categories mandatory, 47 see Fed. reasonably could "unauthorized disclosure ... Reg. was at whereas classification discre- expected damage cause serious to the be tionary under Executive Order Exec. 1-103, security," Fed.Reg. § national 28950, id. 43 1-301, 1-302, Fed.Reg. Order No. 43 §§ only "top and as secret” if its "unautho- at 28951. reasonably expect- rized disclosure ... could be exceptionally grave damage to the ed to cause 1-302, 43. Exec.Order No. Fed.Reg. § security.” Fed.Reg. Id. § national at 28951. 39. Id. 44. Exec.Order No. 12356 1.3(b), Fed.Reg. Fed.Reg. § § at 14876. 1-303 of Exec.Order No. Section 40. (1982). Fed.Reg. Fed.Reg. pre- a announces sumption disclosure of that unauthorized for- 41. The new executive order three also creates identity eign-government information or the of categories additional of classifiable information. foreign cause confidential sources would (8), (9), 1.3(a)(2), Exec.Order No. § See requisite damage degree to the national se- Fed.Reg. at 14876. 1.3(c) curity; Exec.Order No. Fed.Reg. presumption 42. Section 1.1(c) extends this pro- new order instead intelligence and methods informa- sources there is vides that reasonable doubt about "[i]f information, generally classify Powell v. United tion as well. See need shall be F.Supp. 1516- safeguarded pending as if it were a classified (N.D.Cal.1984) (construing presumptions original an determination classification au- rebuttable, conclusive). thority, who shall make this with- not determination classified provided in dis- public interest against the formation prior under orders should retain its classi- elimi- closure,45 executive order the new status;51 carry-over provision fied this en- from the de- balancing provision this nates abling reviewing analyze a court to a dis- as well Absent calculus.46 classification puted classification decision under the or- procedures certain order are from the new in effect at the time the decision Order de- der in Executive contained made, systematic agency declassification in lieu of a remand to the signed to ensure juncture older material.47 a fresh classification at each review of litigation marked new executive argu- their have conformed parties require a order.52 “To hold otherwise and propriety of the classi- regarding the ments remand whenever a new Executive Order dispute the terms of decisions fication during pendency appeal issued of an those under which Order Executive place heavy not administra- would made,48notwithstanding the decisions were agencies tive burden on the but would also Order 12065 is now Executive fact delays pro- cause additional ultimate Order 12356. by Executive superseded cessing types these re- FOIA holding support in our position Their finds quests.” Department in Lesar v. United States Department State,54 In Afshar review, the court Justice49 “[o]n question revisited the from a somewhat according the documents should ... assess vantage point. different We there con- under terms of the Executive Order question, no sidered the which we had occa- agency made its ultimate classifi- which the Lesar, execu- sion to address which A brief review of cation determination.”50 agency should directed to tive order an position in Le- supporting our the rationale apply in- when the case is remanded with sar and its subsequent should elaboration faulty structions to reconsider a classifica- assessment of provide a framework an determination, perspec- from this Exemption 1 case. claims principle we discerned limits to the tive Lesar. While announced executive decision in Lesar to utilize the terms Our might carry-over provision order’s enable superseded of a order as the basis for review of a classification decision under the explicitly review was bottomed on consider- terms the order in force at the time the and, efficiency properly ations of under- made, in- stood, decision was a remand with an is limited to situations struction to the to reconsider efficiency pursued regard can be with due super- then decision under the terms of a for the national considerations of paramount impermissibly bind the concern in 1 cases. seded order would Lesar, flexibility As we observed in Government in an area where Executive Order 12065, 3-303, Fed.Reg. 45. Exec.Order No. 43 fication under the Executive Order in force at § acts"). finally responsible at 28955. time the official State, Department See 226 46. v. U.S. Afshar 6-102, 12065, 43 § 51. Id. See Exec.Order No. 388, 398, 1125, (1983). App.D.C. 702 F.2d 1135 12356, Fed.Reg. Cf. Exec.Order No. 28961. 12065, 3-4, 6.1(c), (national Fed.Reg. security Compare 47. Exec.Order No. 43 47 14883 § § 28955-28956, Fed.Reg. at with Exec.Order No. information includes information found under 12346, 3.3, Fed.Reg. Compare § 47 at 14879. predecessor require protec- current or orders slight emphasis shift in also between the tion). policy declassification set forth in Exec.Order 12065, 3-301, 3-302, Fed.Reg. §§ No. 28955, 43 at Justice, supra 52. Lesar v. United States 12346, and that of Exec.Order No. 33, 208, U.S.App.D.C. 636 F.2d at note 204 at 3.1(a), Fed.Reg. § 47 at 14878. 480. supra accompanying 48. See note 36 and text. 53. Id. Supra note Supra note 46. 208, 480; U.S.App.D.C.

50. 204 at 636 F.2d at (“a reviewing also id. court should assess classi-

217 B. changing world cir- responsiveness to premium.55 are at a cumstances Turning general principles then, Together, Lesar and Afskar affecting appeal, begin with a re reviewing pro court to assess the direct a cases, that, minder all FOIA the dis purported decision priety of a classification are to de novo all ex trict courts review Exemption 1 claim in ly supporting an advanced,57 emption claims the executive order in force at the terms of agency justifying bears burden agency’s ultimate classification de time the requested to withhold informat decision actually Only made. when a re cision is agency may meet this burden ion.58 remanding viewing contemplates court filing describing affidavits the material agency deficiency correct a case to the the manner in it falls withheld and it its classification determination is neces claimed;59 exemption and the within gov sary to discriminate between the order weight court owes substantial to detailed erning purposes any review explanations in the securi agency national it, superseded that on may have to ensure However, a district court ty context.60 only comply remand the will with judgment agen may summary award to an the most current executive assessment of (1) invoking Exemption 1 if cy security This the Nation’s needs.56 two-ti agency affidavits describe the documents harmonizes the in ered scheme review justifications nondis and the withheld speedy disposition terest of FOIA re enough closure in detail and with sufficient quests preserving flexibility that of demonstrate that material specificity to national determinations. For logically within the domain of withheld present purposes, it identifies Exеcutive claimed,61 (2) the affida 12065, in Order force at the time the chal by contrary are neither controverted vits made, lenged classification decisions were impugned by bad faith record evidence nor governing as the directive review of the agency.62 appeal, the part On Exemption 1 issues raised this case. U.S.App.D.C. Agency, U.S.App.D.C. 55. 226 at 702 F.2d at den v. National Sec. 224, 230, 197 1381, (1979), 1136-1137. 608 F.2d 1387 cert. de nied, 937, 2156, 446 U.S. 100 S.Ct. 64 L.Ed.2d case, present appears In that the FBI Turner, 33, (1980); Ray supra v. 790 note 190 sought permission never to review its classifica- 298, U.S.App.D.C. at 587 F.2d at 1195. tion determinations under Executive Order pending while the case was before the 1200, S.Rep. Cong., 60. See No. 93d 2d Sess. 12 Court; suggested District nor has it to this court (1974), reprinted Cong. in [1974] U.S.Code & any that there are differences in the terms of the 6267, Casey, supra Admin.News 6290. Miller v. two orders that would affect its classification 57, 14, 776; U.S.App.D.C. note 730 F.2d at determinations were the case remanded to it for CIA, 117, U.S.App.D.C. Weissman v. 122- reconsideration. See note 36 and accom- (1977). text, panying and note 135 infra. Casey, ‍​​‌​​‌​​​‌​​‌‌​​‌​​‌‌​‌‌​​‌‌​​‌‌‌‌‌‌​​‌​‌‌​​​​‌‌‍U.S.App.D. 61. Miller v. 552(a)(4)(B) (1982); 57. 5 U.S.C. see Miller v. 776; C. at 730 F.2d at Lesar v. United States 11, 14, Casey, U.S.App.D.C. 730 F.2d Dep't U.S.App.D.C. (1984) 1); (Exemption Military Project Audit 481; Hayden 636 F.2d at v. National Sec. 135, 149, Casey, U.S.App.D.C. v. Agency, supra (1981) Turner, (same); Ray v. 1387; Turner, Ray 608 F.2d at 587 F.2d at 587 F.2d at (same). CIA,supra U.S.App.D. Weissman v. 697-698; Vaughn C. at 565 F.2d at 552(a)(4)(B) (1982); 58. 5 U.S.C. § see Miller v. 16, 347, Rosen, supra U.S.App.D.C. note 157 at 57, 14, Casey, supra U.S.App.D.C. note 235 at 730 484 F.2d at 827. 776; Project Military Casey, F.2d at Audit v. 57, 149, supra U.S.App.D.C. 211 note at 656 F.2d 57, Casey, U.S.App.D. supra 62. Miller v. note 235 738; Turner, 33, Ray supra at v. note 190 U.S. CIA, 14, 776; F.2d McGehee v. 225 C. at 730 at 297, App.D.C. at 587 at F.2d 1194. 1095, 205, 222, U.S.App.D.C. F.2d 1112 697 57, Project Military Casey, supra (quoting Project Casey, supra Military 59. Audit v. note v. Audit 149, 738; 57, 149, U.S.App.D.C. U.S.App.D.C. 211 at 656 F.2d at 656 F.2d at Lesar note 211 148, Justice, 33, 738), Dep’t U.S.App.D.C. part, v. United States 711 vacated in 229 209, States, 481; (1983); U.S.App.D.C. Hay- Salisbury 204 F.2d at v. United 223 636 F.2d 1076 218 determine, inspection versary legal system's from nature of our is to form court submitted, agency affidavits whether dispute with the result resolution,”66 spe- agency’s explanation was full and court, appellate like the trial “[a]n enough requester the FOIA to afford cific court, completely is without the controvert- contest, meaningful opportunity to a ing ordinarily illumination that would ac- adequate court an foundation to the district company a lower court’s factual determina- review, withholding. the soundness of the 67 tion.” Even should the court undertake we are satisfied that affidavits “Once [the inspection in camera of the material —an provided] adequate the trial court an ... unwieldy process where hundreds or thou- decide, guided by the we are ‘clear- basis pages sands of are in dispute “[t]he —68 evaluating ly erroneous’ standard scope inquiry of the will not have been of that decision.”63 substance focused the adverse parties____”69 significance agency affidavits governmental Affidavits submitted As, be underestimated. FOIA case cannot agency justification for its ordinarily, possesses alone correct, claims therefore must strive to knowledge precise content of doc- however, imperfectly, asymmetrical dis- requester the FOIA uments withheld,64 knowledge tribution of that characterizes rely upon represen- the court both must litigation. public FOIA The detailed index understanding

tations for an of the materi- in Vaughn70 required of with- sought protected. al As we observed holding agencies just Vaughn v. intended do that: lack of “[t]his Rosen,65 permit adequate knowledge by party seeing adversary testing “to disclo- [sic ] seriously agency’s sure distorts the traditional ad- right exemp- claimed to an 243, 247, 966, (1982); U.S.App.D.C. 690 970 68. The decision to conduct an in camera exami CIA, 88, 93, U.S.App.D.C. Gardels v. 223 discretionary, 689 F.2d nation is NLRB v. Robbins Tire & 1100, (1982) CIA, (citing Co., Halperin 214, 224, 2311, 1105 v. Rubber 437 U.S. 98 S.Ct. 33, 110, 114, U.S.App.D.C. 2318, 159, 203 (1978); 629 F.2d Meeropol 57 L.Ed.2d 167 v. 144, (1980)). Meese, 381, 397, 148 942, U.S.App.D.C. 252 790 F.2d (1986); EPA, Safety 958 Center Auto v. 235 169, 173-174, 16, Scientology U.S.App.D.C. 63. Church United States v. 731 F.2d 20-21 738, CIA, (9th Cir.1979); (1984); 159, Army, U.S.App.D.C. 611 F.2d 743 Allen v. 205 168- FBI, 273, 171, 1287, (6th (1980) (consider Kiraly accord v. 728 F.2d 636 F.2d 277 Cir.1984). bearing inspec In Mead Data Cent. v. ations resort to in camera Force, tion), Dep't U.S.App.D.C. generally the Air it is unfeasible for the court (1977), F.2d 242 large we observed that a FOIA re- to undertake this task where a number of involved, quester seeking appellate reversal of a decision documents are see Church Scientol IRS, sustaining agency’s withholding 78, 85, ogy U.S.App.D.C. claims must v. 792 F.2d (1) (1986), deprived show either supp. “that it was op., — opportunity effectively present (en 1986), its case to the granted, 792 F.2d 153 U.S.-, banc cert. agency’s inadequate court because of the de- (1987); 107 S.Ct. 93 L.Ed.2d 996 scription Justice, of the information Weisberg withheld and ex- Department U.S.App. v. emptions (2) judge 339, 353, claimed" or "the (1984); trial D.C. 745 F.2d incorrectly requested ... decided that the EPA, infor- Safety supra, also Center Auto v. exempt.” mation was Id. at 566 F.2d at U.S.App.D.C. at 177 n. 731 F.2d at 24 n. 10 251. "In order to show that the district court’s (discussing judicial economy); considerations of matter, decision was incorrect as a substantive Lykins Department U.S.App. cf. v. requester] [the must establish that 349, 357, it was either (1984) (even D.C. 725 F.2d predicate based on an error of law or a factual available, where "in camera examination is not clearly which is erroneous.” Id. at 359 n. government’s obligation a substitute for the 566 F.2d 251 n. 13. provide public justifica detailed indexes and possible”). tions whenever Rosen, Vaughn 64. See v. U.S.App.D.C. at 484 F.2d at 823-824. Rosen, Vaughn U.S.App. 69. Phillippi D.C. at 484 F.2d at accord v. 1009, Supra CIA, 243, 247, (1976). 66. 157 484 F.2d at 824. Rosen, Vaughn U.S.App. Id. 484 F.2d at 825. D.C. at 484 F.2d at 826-828.

219 case, they and concluded that substantiated District Court to tion,”71 “the and enable appeal, its reliance on l.77 On the with- whether decision a rational make then, we are to determine as a threshold produced without be must held material pro- them- matter whether the affidavits fact viewing the documents actually adequate “an vided the District Court with produce a record selves, as to as well to decide” the 1 issues:78 decision basis Court’s the District render will ascertain whether the material withheld appeal.”72 to meaningful review capable of categories in- is of classifiable within agency seeks to withhold Thus, when in Executive formation enumerated Order relatively information, “a provide must and, further, its unautho- 12065 whether identify- specifically justification, detailed reasonably expect- could rized disclosure exemption why particular ing reasons damage requisite amount of ed to cause correlating those claims relevant and is security.79 national We turn to the of a withheld doc- part particular Vaughn accompanying index and the decla- Specificity they аpply.”73 to which ument Agent, prepared by Special ration requirement Vaughn defining is the Richard C. Staver.80 affidavit;74 affidavits cannot index and they summary judgment if are support Staver advised the District Court that reciting statutory stan- “conclusory, merely provide ‘Vaughn more workable “[t]o vague sweep- or dards, they if are too and thus reduce the index’ format burden inadequately sup- accept an ing.”75 To analyzing Exemption One claims” he exemption claim “would constitute ported departing practice prepar- from the the trial court’s obli- an abandonment ing typed pages separately describing each to conduct a de the FOIA gation under document, submitting in- withheld and was novo review.”76 pur- copies stead of the documents released appellant’s FOIA demand with suant

C. each deletion annotated means of a referring code in turn to an examined the affida- four-character The District Court code-catalogue.81 copy accompanying FBI in the instant by the vits submitted 59, Serv., Agency, supra note 197 U.S. 255 National Sec. NTEU v. United States Customs 71. 230, 1387); 449, 451, 525, (1986). App.D.C. accord Cen U.S.App.D.C. 527 at 608 F.2d at 802 F.2d EPA, 68, supra Safety ter Auto v. note 235 392, 383, Powell, U.S.App.D.C. 22; 175, v. 206 72. Dellums U.S.App.D.C. at Goland v. at 731 F.2d 1351, (1980). 37-38, 339, CIA, 25, 642 F.2d 1360 U.S.App.D.C. 607 F.2d 197 denied, 927, (1978), U.S. 100 cert. 445 Dep’t Mead Data Cent. v. United States 73. 1312, (1980). S.Ct. 63 L.Ed.2d 759 Force, 63, U.S.App.D.C. supra at Air note 184 359, CIA, Paisley at Cf. v. 229 566 F.2d 251. 68, CIA, U.S.App.D.C. supra 205 76. Allen v. note 372, 686, 12, U.S.App.D.C. n. 690 n. 376 165, 1). (Exemption at 636 F.2d at 1293 (1983) ("[t]he index of one document 12 consists withholding adequately describes each Justice, supra Dep’t v. United States 77. exemption sets forth the record or deletion and 2, F.Supp. note 586 at 291-292. relevant”), why claimed grounds, part U.S.App.D. on other vacated Dep’t Scientology Church v. United States 78. 69, (1984). C. 724 F.2d 201 738; 63, Army, supra F.2d at see note of note 63 accompanying supra text. 62, CIA, supra v. note 223 U.S. 74. See Gardels 93, 1105; CIA, App.D.C. at 689 F.2d at Allen v. 1-1, 1-3, 12065, 43 Fed. §§ 79. Exec.Order No. 68, supra U.S.App.D.C. note at 28951-28952; ‍​​‌​​‌​​​‌​​‌‌​​‌​​‌‌​‌‌​​‌‌​​‌‌‌‌‌‌​​‌​‌‌​​​​‌‌‍28950, Reg. v. United Baez 1292-1293; CIA, supra Halperin F.2d at v. note 199, Justice, U.S.App.D.C. Dep’t States 62, 114, 148; U.S.App.D.C. F.2d at at (citing Lesar v. United supra Hayden Agency, v. National Sec. supra note 204 U.S. 1387; Ray U.S.App.D.C. at 608 F.2d at 481). App.D.C. F.2d at at Turner, v. 1195; Rosen, Vaughn 587 F.2d at Declaration, Staver-Scheuрlein 484 F.2d at supra. see note 19 R. CIA, Staver-Scheuplein Allen v. (quoting Hayden F.2d at 1291 R. 16. explan- file, inserts, as similarly and the as well numerous documents redacted of the comprise annotated, the code-catalogue together representing remaining the atory Vaughn filing. file pages FBI’s of the withheld.83 brief, system works follows. the In opines Staver that this new method in which information instance every For improve presentation represents of “a vast released withheld, have the documents previous over ment formats” and “the four-character code. the marked with been required specificity has been enhanced.”84 code iden- of the characters The first two regret system to differ. The We Staver exemption assertedly autho- tify the FOIA adopted imposes significant has a burden example, (b)(1); withholding rizing the —for upon reviewing the court without commen category the identifies third character system surate benefit. of Staver’s annota under Order 12065 which the Executive adequately tion neither describes redacted classified —such as Sec- has been material explains, speci material nor with sufficient activities, l-301(c) (intelligence sources tion review, meaningful ficity to enable how methods); the fourth character re- or likely impair disclosure would national sec code-catalogue statement fers to a urity.85 description of mate- as a offered is First, practical as a matter we note that withheld, to demonstrate intended rial preamble neither the declaration nor the one or of the classifica- more it lies within catalogue proffered descriptive pur- categories of Executive Order poses corollates discussion of national se- point likely harm to and to curity concerns to redacted security documents.86 attending its release.82 In national Lacking citations sum, presented within declaration to the District Court was point a reader intensively redacted and annotated and the court to the doc- an requested 1500-page reproduction question stage of the uments of at each damage 82. The FBI has advanced claims account of the national to the categories expected of classifiable information for three to result from unauthorized disclosure (for- 301(b) Order § under Executive 12065: general category in that of of material classifia- 1— information); l-301(c) (in- eign government § ble information. R. 16. See id. activities, methods); telligence or sources l-301(d) (foreign foreign activi- relations or 83. See text at note 14. States). Staver-Scheuplein ties of the United Declaration, supra note R. 16. The Staver-Scheuplein usually page descrip- code-catalogue a offers lVi at R. 16. types comprehended of the tion by information category, each executive order with each 85. See text at notes 64-76. descriptive then broken down into one to four subcategories keyed by character the fourth Powell, supra 86. Cf. Dellums v. foreign coding system. category The ("for pur 642 F.2d at 1360 government into two de- information is divided claims, defenses, poses correlating privi (information scriptive subcategories identifying leges manageable segments transcripts, of the foreign government cooperative engaged a a Vaughn identify should all [the index] relevant States, relation with the United information portions transcripts by page of the number and provided foreign government a with the ex- line, objections so that all claims and can be pectation, express implied, that it is to be reviewed”); fully evaluated and Mead Data confidence); kept intelligence category Force, Cent. v. United States Air activities, sources, or is severed into methods sources, at 251 (three descriptive subcategories four (“[t]hus, require that when an seeks identify pertaining to could information that a provide source, to withhold a rela identifiers, information must source and source contact justification, tively specifically identify dates, detailed pertaining to and one on ing why particular the reasons intelligence method). category activity or correlating relevant and those claims with the foreign relations or of the United activities part particular document subcategory. the withheld descriptive States is treated in one Rosen, they apply”); Vaughn descriptive subcategory provides Id. Each 484 F.2d at type brief account of the includ- of information ed, (recommending indexing "system that and a nex- would several-sentence discussion of the subcategory us between disclosure correlate statements made Government’s of that portions justification damage information and securi- actual national refusal with the document") (footnote omitted). ty. page It then refers the reader to a lVi tions, coding system novo exposition, propri- enables de review declaration’s agency’s portion ety withholding. present case, In sizable shifts a the shoul- imposing burden onto admittedly system inadequate the is because we are weigh In order to the court.87 ders of the description left no contextual doc- for by arguments, offered or those declarant’s portions or uments substantial of doc- briefs, must the court sift counsel entirety,89 in their im- uments withheld an 1,500 through all of the documents—here permissible long result as as revelation of proceed To find in issue. pages those —to the not harm context would itself the na- strategy reading the alternate under the — Furthermore, security. a reproduc- tional following the code redacted documents only tion of the redacted documents can catalogue provid- to the annotations back the the context from an show court which deficiency fundamental the ed—illuminates deleted, may item has been and context or adopted. FBI has the of the index format may assessing not assist the court in the categorical in na- unhelpfully is Because it of excised character material and the ture, commentary supplies little the coded grounds for its deletion.90 Where it does beyond can that which be information not, commentary to coded gleaned from context. system of annоtation is so leads court opinion FBI is Apparently the of general in as to of little no nature or that, submitting reproduc- court a help. file, it is redacted relieved tion of the carry demonstrating its To burden describing obligation of withheld material propriety sup- classification decisions reproductions Utilization detail.88 porting position, the supply in- material released to contextual specificity describe with reasonable must is about material withheld clear- formation withheld, identify the material ly permissible, but caution should be exer- expected damage to the national to resorting descrip- cised in to method attend its disclosure.91 The declaration’s system only good tion. a is as its Such far-ranging category definitions for infor- results, and the result must be an vital which, under Executive Order adequate representation of mation classifiable context descriptions pro- make that the FBI could when combined with dele- 1206592 clear Turner, Ray properly 190 U.S. classified within the terms of 87. Cf. been App.D.C. (concurring Order the FBI must demon- 587 F.2d Executive affidavit, CIA, opinion); supra note not that the material Weissman v. strate categories Vaughn U.S.App.D.C.at within enumerated of classi- 565 F.2d at falls information, Rosen, supra U.S.App.D.C.at but also that unauthorized 345- fiable "reasonably expected could be 825-826. disclosure damage at least to the nation- cause identifiable Declaration, Staver-Scheuplein 88. See security." al text at notes 37-38. See R. at 9 example, concerning information intelli- 92. For See, example, for cited in note instances methods, activities, sources, gence 131 infra. l-301(c), encompass: is defined identify or a that could reveal Information cannot, instance, 90. Contextual information past prospective intelligence present, source, or questions following an answer order. Is person, organization, whether intelligence source whose name has been ex- system, group, device technical mechanism or cised still alive? Has source been other- provided being provides, or is devel- has report wise identified in the decades since the foreign provide foreign intelligence oped or deleted filed? Would information on the counterintelligence. might identify theory it a source still do so identify or which could reveal Information forty years particular after the fact? Is a intelli- prospective intelligence present, past or not, gence activity or method still in use? If mode, method, technique procedure, re- or continuing protection what concerns warrant being developed acquire, quirement or used intelligence methods and transmit, correlate, pro- analyze, evaluate or activities from the 1940’s? See text infra foreign foreign intelligence or counter-in- cess telligence notes 124-135. source, intelligence support or 1-301, 1-302, activity. operation or §§ 91. Exec.Order No. disclose the identi- Fed.Reg. Information that could 28951. To demonstrate that material Community agency person- Intelligence under 1 has withheld the cloak ties descriptions of redacted follow disclosure the information subcategory vide deficient, question similarly presenting than has.93 more detail in far material myriad damage possibilities for each cate- consequences likely to Staver’s account gory of classifiable information.94 The ac- targeted against suspect- or of code or nu- sources and methods operating under cover nel protect per- espionage apparatuses. designations such ed used to merical sources, intelligence Staver-Scheuplein 29, methods and sonnel This activities. R. 16. refinement of declaration's intelligence-relat- pertaining wide-ranging category description, Information see note 92 formulae, methodologies, techniques, supra, ed is of no assistance whatsoever. models, including programs equipment, or simulations, ranging example, supplies from re- the computer initial For declaration the fol- acquisi- quirements through planning, lowing damage source of to account the national research, tion, initiation, design reasonably and expected contract to result un- from training production, personnel and testing to authorized disclosure of information concern- operational activities, use. ing intelligence, or sources methods: identify research that could Information concerning of Disclosure information intel- acquisition procedures data or used activities, ligence or re- sources methods can intelligence foreign or processing and of damage security in sult in to the national production intelligence of fin- or counter First, ways. several its disclosure could re- intelligence, such identification when ished particular intelligence veal the existence of a interest, intelligence particular a could reveal counterintelligence investigation/opera- or intelligence or the of the knowledge of the extent value tion. Disclosure could reveal or indicate the subject particular of intelli- of nature, objectives, requirements, priorities, gence intelligence interest. or counter scope intelligence or thrust of the or counter- reveal, jeopardize or Information could intelligence investigation. Disclosure could device, compromise a or mechanical technical identify acquisition pro- data used in the and procedure system proposed or for the or used cessing intelligence counterintelligence of or information, intelligence collection of sites, or information and such identification could re- facilities, equipment, operation- systems interest, particular intelligence veal a val- technologies pro- al and used or schedules intelligence, extent ue of the or the of knowl- posed for use in such collection or in the particular target edge intelligence of a of or interpretation, evaluation and dissemination counterintelligence interest. Disclosure could of collected information. рarticular utilized reveal method to obtain intelligence activity, or An source method intelligence process counterintelligence or or general requiring two char- classification has information. Such disclosure would allow First, intelligence activity, acteristics. entity general hostile specific intelligence assessment of both and generated source or method and information capabilities collection by by carry to it is needed the FBI out its frame, particular during a time and hostile Second, confidentiality mission. be must targets assessment of areas and which had respect activity, maintained with source compromised compromised; been or not al- it, provided by or and if method information implemented, low countermeasures to be viability, productivity its and the usefulness of making intelligence operations future more preserved. its is to information be difficult; ongoing compromise and other and Staver-Scheuplein planned intelligence operations. 19-20, R. 16. category of of Disclosure this instance, exposure intelligence to of For can also lead the declaration offers one Exposure intelligence subcategory "intelligence of sources. of an source account or methods source; activities],” providing following description can result in of the dis- termination services; exposure of the under of the information withheld this code continuance source’s category: ongoing intelligence gathering of other activi- ties; modification or cancellation of future Specific information or from about an intelli- activities, intelligence gathering permitting gence activity method can reflect and/or entities to the number and hostile objectives evaluate upon intelligence gathering ca- targeted intelligence of sources pabilities strengths and weaknesses. The —its them, against appropriate and counter- take engages intelligence activities and uti- measures; chilling effect on an overаll intelligence responsi- lizes methods to fulfill cooperativeness respect of with to the climate imposed upon bilities gence it law in the intelli- sources, intelligence pro- current both counterintelligence field. This in- probability spective, willing risk the of encompasses not to formation gence assessments of intelli- possible exposure potential effect of penetration particular with source into areas status, life, friends, etc., interest; jobs, all of intelligence loss of evaluation of infor- expected hamper may reasonably developed by intelligence mation activities; means ability intelligence impact and result of the avail- collection assessment security. damage ability non-availability intelligence to the national identifiable coverage wide-ranging from the disclo- but rather between “logical nexus count description damage subcategory national securi- itself.98 ... sure subcategory re- supplied every for each ty” Similarly, account the declaration of- little to correct does consequences dacted information95 disclosing fers material too, it, categorical is deficiency because of a withheld assumes the form list whose in nature.96 reflect, not predictive serial alternatives uncertainty consequences, about such that our dissatisfaction emphasize We categori- showing much as the broad contours Exemption 1 arises the FBI’s Vaughn employed.99 Clearly, index a ser- zation scheme from the character express no view the va- We ies tendered. of discrete declassification decisions underlying classification deci- lidity of the necessary prepare file Indeed, justify. intended sions release, but the texture these delibera- those deci- position in no evaluate are everywhere coding tions is effaced ascertain, example, whether sions —to system employed justify them to the sensitivity intelligence information with- court. respect any has in diminished with held Vaughn index here sub simple of time97 —for the reason passage is, word, inadequate wholly in a mitted — not furnished with sufficient that we are specificity lacking description in that of we meaningful in do so a fash- information to repeatedly necessary have warned is to en annotations, decoding In the redaction ion. meaningful agency’s of an sure review general, every turn not encounters one subject claim to withhold information to a generali- response. And the particularized, request.100 withholding agency A FOIA subcategory descrip- ty of declaration’s must describe each result, portion document or not from cautious tion seems to withheld, for each detail, withholding revealing descriptive thereof and avoidance of Declaration, gence identity. exposed Staver-Scheuplein source’s Thus 21, R. 16. effectiveness would be terminated source’s my judgment such could and in occurence supra. 95. See note 82 reasonably expected iden- be to cause at least instance, subcategory damage security. For the declaration’s tifiable to the national “Pertaining description Declaration, To Or Staver-Scheuplein of information Intelligence By Provided Reasonably An Source That Could 22-23, R. 16. Identify Expected The Source Be To Disclosed," Staver-Scheuplein su- If 97. See text at notes 124-135. infra incorporates pra note R. refer- description quoted category ence the of harm See, e.g., supra. notes 92-93 following supra, provides then note 94 and disclosure and account of the nexus between of be- account the nexus 99. The declaration’s damage security: national "intelligence ac- method or tween disclosure category specific Information of this is either information,” (b)(l)-(C)(4), category tivity character, unique in by and there- nature or of a damage in the to the national consists lead to the identification of could sought spe- that "is observation the information may example, source. For this information would au- its disclosure cific” “therefore! 1 a one-оn-one contain details obtained from intelligence tomatically reveal ana- to a hostile conversation between and another a source capabilities lyst intelligence in a United may It be detail individual. of such that Staver-Scheuplein particular area.” Declara- pinpoints a critical or reflects a time frame tion, is R. The reader special vantage point from which source far-reaching to a discussion then referred may reporting. The be more information sources, disclosing “intelligence meth- risks of report less or taken verbatim from a source’s information, quoted in full at ods and activities” style peculiar reporting and thus reveal a appar- supra, paragraph first is note 94 whose along au- that source with other clues requisite ently supply intended to account may thorship. nature The of the information likely between harm. The account nexus parties a be such that handful of would information, intelligence source disclosure category degree In have access to it. sum it is the (b)(1) (C)(1), damage to the na- — specificity endangers that supra, security quoted is in full at note 96 tional my anonymity. the source’s continued It inis categorical similarly in tenor. that of this determination disclosure informa- analyst enable a hostile to unravel would secrecy protects at notes 64-76. the intelli- See text the cloak of that thereof, (1) portion redacted document or consequences of disclos it must discuss document, This re sought-after identify by type information. ing the and location explicit if indeed not quirement, (2) body requested; in the of documents unmistakably implicit Vaughn, claimed; (3) 1 is de- decision supporting our principles any re- scribe the document withheld case, subsequent have decisions as our thereof, portion disclosing dacted as much When, Vaughn,101 we very clear. made possible thwarting information as without agencies tender an index first insisted (4) exemption's purpose; explain how precondition review as a and affidavits this material falls within onе or more of the claims, emphasized the exemptions categories of classified information autho- exemption identifying which necessity of order; governing rized executive each item withheld.102 upon for was relied (5) explain of mate- how disclosure In Mead Data Central question requisite rial in would cause the Force,103 Air we elabo Department degree security. of harm to the national explain requirements, Vaughn’s rated on withholding agency sup must ing that the Dellums, system As we noted justification, spe relatively detailed ply “a categorizing may claims why par the reasons cifically identifying appropriate, particularly where the doc exemption is relevant and correlat ticular question uments in are and the voluminous particular part ing claims with the those applies large same to a number they ap a withheld document segments.109 categor availability subsequently reiterated in ply.” As we not, however, supplant ization does the de Powell,105 Vaughn’s call for Dellums v. particularity.110 mand for When the above- specificity imposes on the the bur listed factors are identical for several doc demonstrating applicability of the den of redacted, single uments withheld or items exemptions invoked as to each document representation, accompanied by identifying segment or withheld.106 Elsewhere we portions references to the documents or defined Vaughn have index as “con issue, may Similarly, coding sys suffice. sistpng] adequately of one document that might employed applica tem be indicate describes each withheld record or deletion bility given response of a to more than one exemption and sets forth the claimed and segment material, long of redacted so as why exemption is relevant.”107 Cate respon supplied the information remains gorical description of redacted material segment sive to each deleted without be coupled categorical with indication of antic coming categorial in As each tenor. ipated consequences clearly of disclosure is material, agency, inadequate.108 Exemption item of excised support To its 1 claims, must, course, provide affidavits for each is to as much information 106. Dellums v. Powell, 72, Supra supra note 16. note 206 U.S. 29, App.D.C. n. F.2d at at 392-393 & 642 1360- 102. 157 347, U.S.App.D.C. 484 F.2d at 827. Founding 1361 & n. accord Church Scien 363, 367, Bell, tology U.S.App.D.C. v. 195 603 Supra note 63. 945, (1979) ("index must state the ex emption or claimed for each deletion withheld 104. 359, U.S.App.D.C. 566 F.2d at 251. document, explain why exemption is relevant”). Supra Although note 72. Dellums v. Powell case, required was not a FOIA in submission CIA, Paisley supra U.S.App. v. comporting that case of an affidavit and index D.C. at 376 n. 712 F.2d at 690 n. 12. Vaughn. U.S.App.D.C. 642 F.2d (noting procedures at 1355 of Nixon v. 108. Dellums v. Powell, 206 U.S. Sirica, 58, 79, 487 F.2d App.D.C. at n. 642 F.2d at 1360-1361 i.e., index, (1973), Vaughn submittal of a n. 29. CIA, ordered); had been see also McGehee v. at 209 n. 109. Id. (FOIA relying F.2d at 1099 n. case on Del- "description lums for a of what such such an 110. Id. entails”). index may, discretion, the national The District Court consistent with its as is production order designed pro- the excised material or interests sample inspec- some thereof for in camera tect.111 An opportunity tion.115 for “first-hand in- at all is “an exercise To avoided costs be spection the court determine [enables to] offerpng] jurisprudence labels ... whether the weakness of the affidavits is a regarding conclusory assertions [doc- poor draftsmanship result or a flimsy such susceptible are not uments] claim,” but “the district court’s As we warned simplistic classification.”112 inspection prerogative is not a substitute Dellums, goal descriptive accura- government’s proof, for the burden niceties of a sacrificed to the cy is not lightly.”116 should not be resorted to particular classification scheme.113 Moreover, should the task of in camera descrip- Vaughn is its measure of a index appear burdensome, examination too accept willing to accuracy, and we are tive may appellant engage court allow long, form so in its so but innovations discovery,117 further or order the FBI to end. long, they contribute to that supplement filings.118 If Vaughn so ordered, the FBI provide must to on an D. item-specific basis the maximum amount of protection information consistent with Vaughn that the index ten- conclude We security119 the interests of national provides insufficient in this case dered exigencies forecasting in this events do- FOIA the de novo review that basis for main.120 This 1 claims.114 mandates for Dis- requires a remand the case proceeds by Whether District Court Then, proceedings. for further ordering supplemental trict Court affidavtis may employ any inspection of several mea- the court camera of documents or sam- acquire enough plings, to con- must sures to ensure that it has an ade- requisite. quate foundation for the review review of FBI’s duct 111. Cf. CIA, (same); FTC, Phillippi 178 U.S. Ash Cement Co. v. Grove App.D.C. at 546 F.2d at 1013. (1975). ap- We note here that in the decision Powell, 112. Dellums 206 U.S. rejected pealed from the court method. App.D.C. n. F.2d at 1360-1361 at 392-393 v. United n. 29. 2, F.Supp. at 586 289. 113. It is worth recalling observation in Del- our 116. Church Dep’t Scientology States v. United [may categorize "the effort be] lums that 63, Army, supra 611 F.2d at note 743 of (citations omitted); unsuitability of inappropriate ... because of supra. see also note 68 materials for such classification ..." and resulting rejection indexing our "conclusory method 117. The District Court also denied appellant’s "not sus- assertions" about material compel production motion to and answers to simplistic ceptible to such Id. classification.” interrogatories. King Dep’t v. United States 114. See notes 63, accompanying supra 67 and 2, Justice, supra F.Supp. note at 289. 586 68, text; CIA, supra see also Allen v. note 205 164, (rejecting U.S.App.D.C. 636 at F.2d at 1292 118. See 73, CIA, Paisley supra v. note 229 U.S. per- "defective” CIA affidavits which “do not as 386, (alternatives App.D.C. at 712 700 F.2d at mit a trial court conclude that the document remand). District FOIA available to Court on conformity with the substan- was classified 12065"). requirements of Order tive Executive 69, 119. CIA, Phillipi supra See v. note U.S. 178 247, (even App.D.C. where at 546 F.2d at 1013 68, Meese, Meeropol supra See v. note 252 agency's inspection, employs court in camera (in U.S.App.D.C. at at camera F.2d possible public affidаvits must be as detailed appropriate agency submissions review where are focused and to ensure issues before court inadequate); are v. United Baez adversary by process). clarified Justice, supra note at (same); Meeropol v. 647 F.2d at 1335 see also U.S.App.D.C. CIA, supra 223 U.S. Meese, See Gardels v. note supra at 397- 1106; Halperin App.D.C. v. (discussing sampling F.2d 790 F.2d at 958-960 Justice, CIA, Weisburg supra Department procedures); at 149-150. giving agen- circumstances sufficient to warrant disso- withholding claims before security prior lution of a on national classification determina- cy’s expert opinion weight it policy to which tion.125 The order’s declassification substantial matters the minimum, the court mandatory At a buttressed a scheme of is entitled.121 respect review, information with espe- more declassification concerned must secure involving documents cially whole with classified in to excisions material excess of thereof, no contex- where parts twenty years.126 light In policy, substantial of this supplement is available tual information clearly simply District Court erred in defer- descrip- FBI’s code particularize the ring judgment to the FBI’s that the sensi- Having garnered this additional tions.122 tivity of the information withheld had not withheld, court on material age,127particularly diminished with since the FBI’s as- afresh should then scrutinize agency’s only commentary remotely re- of disclo- consequences sessment of the sponsive to this concern was averment opin- sure, allowing appropriate latitude for that declassification decisions made in were ensuring the enumeration of ion but procedural conformity with Executive Or- presently charac- consequences alternate prolonged der 12065’sdirectives on classifi- reflects terizing agency’s submission procedural cation.128 An assurance of uncertainty rather than mere predictive not, itself, compliance does afford an categorical response. adequate foundation ‍​​‌​​‌​​​‌​​‌‌​​‌​​‌‌​‌‌​​‌‌​​‌‌‌‌‌‌​​‌​‌‌​​​​‌‌‍for de novo review of propriety the substantive of the withhold- reviewing predictions In thе FBI’s case, ings question;129 present disclosure, par on the court should devote many question raises as as it answers. To age the file in ticular attention to the example, Staver-Scheuplein cite but one compiled It this case. between declaration avers that classification was 1952; contains are all documents it imple- conducted accordance with FBI years old. Executive Order now at least 35 menting regulations, providing part early as 12065 directs declassification “as l-301(c) category information on intelli- permit,”124 national considerations activities, gence pre- sources and methods “the occurrence of a declassi and identifies requires pe- sumptively classification for a fication event” or “loss of information’s extending twenty sensitivity passage up years.130 of time” as riod Justice, CIA, Halperin U.S.App. Dep't See v. United States F.Supp. D.C. at F.2d at see note 60 at 292. accompanying text. Staver-Scheuplein 128. See Department 122. Cf. Lamont v. R. 16. The declaration's coded (S.D.N.Y.1979) F.Supp. (denying commentary respect is otherwise silent with summary judgment on 1 defense indeed, age; questions of the documents’ it con- requiring inspection en- in camera "where sistently describes redacted material and dis- parts tire documents or substantial thereof have though consequences cusses the of disclosure as ...,” grounds been withheld affi- See, e.g., only recently compiled. files were description to davits lacked sufficient demon- 92, 93, 94, supra. expected any reasonably could be to have pose "to address crucial because it failed the security. damage on our national identifiable questions particular of whether each intelli- rejected most thus of alive, Id. at 1070. court gence functioning is still source still asserted, suspending re- revealed, 1 claims source, already has been or can give long enough to dates, lease of the information by places, capabili- possibly be identified ex- agency opportunity alternative to raise ty, supplied thirty years an or other information emption F.Supp. light at 1071. claims. Id. the fact.” 584 at 1517. In after policy on a codified its claimed reliance records or information compiled for law purposes, enforcement only but respecting declassification older doc- production extent of such uments, particular law the FBI is under a obli- enforcement records or information ... gation apparently con- to account its (C) reasonably expected could be to con- tinuing prolong decision to classification of stitute an per- unwarranted invasion of age those documents exceeds the whose (D) privacy, sonal reasonably could [or] periods presumptively appropriate deemed expected be identity disclose the of a by regulations.133 for classification own source, State, confidential including a lo- showing134 On basis of that the court cal, foreign or agency authority or any or then, then, position in will be private institution which furnished infor- whether, light determine of the facts basis, and, mation on a confidential it, arrayed Exemption 1 before claims case of a record or compiled can be sustained.135 by criminal law authority enforcement investigation course a criminal or Ill by agency conducting an a lawful nation- Exemption 7 of the Freedom of Informa- security intelligence investigation, al in- Act, here, provisions pertinent in its formation by furnished a confidential source____136 excuses from disclosure explained Vaughn, agency's As we any underlying to reassess classification duty produce issue, detailed affidavits arises from opportu decisions at it must afford it an necessary FOIA and is to effectuate the de novo nity to conduct its deliberations under the exec review ing agency the Act. mandated Once a withhold- currently utive order in force. See v. Afshar claims, pre- details the basis of its State, Department supra U.S.App. note sumptions governing embodied in the executive 399-400, 1136-1137; D.C. at 702 F.2d at text any implementing regulations order and 48-56; Meese, —or supra Meeropol at notes accord v. underlying policy regarding that matter their supra U.S.App.D.C. declassification older materials —must be tak- not, however, obliged at 960. The court is reviewing agency’s en into account agency pur remand to the for reclassification claims, but not before. We think it crucial at poses simply by change virtue of the in effective points distinguish agency’s all between an Department executive orders. See State, v. Afshar obligations public possi- FOIA to make so far as supra U.S.App.D.C. at 399- decisions, ble the basis for its classification (discuss 400 n. 702 F.2d at 1137-1138 n. 18 hand, and, other, the one on the review of the ing "policy avoiding enunciated in Lesar and pri- classification decisions themselves. It is just remand because a new Executive Order is marily stage at this latter that the terms of the during appeal”); issued Lesar v. United States governing play. executive order will come into Justice, Dep't supra U.S.App.D.C. case, In the instant the FBI must address the 636 F.2d at 480. age of the documents in the file on an juncture litigation At no in this has item-specific any Vaughn basis in further fil- any indicated orders, difference in the terms of the two would, course, ings; discharge do well to accompanying see note 36 obligation special care where its de- text; change any text at note apparent decisions classification flict with stand in con- circumstances, national policies embodied in Baez the executive Justice, implementing regulations United States governing order and 204-205, 1333-1334, review in this case. 647 F.2d at underlying that would affect classification proceed by 134. Should the court be inclined to dispute, decisions in nor do the character and supplemental affidavits rather than in camera age question suggest they of the file here in inspection, showing by appellant may a rebuttal Nevertheless, should. should the District Court appropriate. forego reviewing the task of classification deci- others, regard, already 135. In this as in sions the FBI has and direct all the District made sufficiency Court should assess the itself to FBI’s review those dеcisions substan- affidavit, any supplemental index and tively, opportunity as well as it should afford the FBI an filing, by the terms of the executive order and do so under the terms of the current order. See implementing regulations State, in force at the time Department Afshar the Bureau made its ultimate classification deci- 702 F.2d at 1136- sions. Should the court undertake in camera inspection, apply it should the same standard. 552(b)(7) (1982) (as Dep't See Lesar v. amended § 136. 5 U.S.C. Act of 636 F.2d at Freedom of Information Reform Should, however, N, Stat. court direct the FBI Pub.L. No. subtit.

229 first, withholding Exemption “identify the a agency particular that a under justify To demonstrate, particular individual or a as a incident as the 7, agency must an object investigation” specify of its matter, and that the information threshold “ “ ‘the connection that for between individual or ‘compiled law to shield has been seeks ”137 possible and, further, security incident and a risk or vio- purposes’ enforcement ” 142 lation agency of federal law.’ The of the un- one production would have that must then demonstrate this relation- exemp- by the effects enumerated desirable ship is “based on information sufficient to tion.138 support least a at ‘colorable claim’ of the A. rationality.”143 inquiry, connection’s This deferential,” “necessarily while recently circuit, ob- as we have In this served, enforce- are not law pass “FBI records not vacuous. In order to the simply by Exemption threshold, vir- ment records FOIA 7 ... FOIA] [under investiga- FBI serves.”139 agency of the function that the must establish that tue v. Pratt Webster140 Rather, tory realistically are our decision activities based on a determining legitimate for concern federal supplies two-prong test laws have agency may been invok- be violated or that national law-enforcement whether may made even the thresh- ing 7 has breached. Either Pratt requires, showing requisite.141 plausible these concerns must have some old 3207, 3207-48, (1986)). (1983), in, reprinted part The 1st 3207-49 1986 Sess. 23 in relevant Exemption clearly govern 8, 1986) Cong.Rec. (daily 7 this amendments 132 ed. H9466 Oct. 1804(a) pro- Act appeal. Reform (joint Section Rеpresentatives English statement and Abramson, amendments made section Kindness) vides (citing "[t]he supra FBI v. note on date of enactment 1802 shall be effective 137). Senate, passed 774 S. but was not 27, 1986], apply Act and shall of this [October during Congress; acted on however, the House the 98th records, respect any requests with wheth- bill, change any 10 without § request prior not was made to such er or here, pertinent supplied language for the date, any pending apply civil action shall 7, 1986 amendments the Sen 1804(a), Stat. § on such date.” Id. 100 3250. Judiciary report ate Committee’s 10 of S. § explicitly adopted by 774 was both the Senate 137. Abramson, 615, 622, FBI v. 456 102 U.S. sponsors those the House amendments. 2054, 376, 2059, (1982) 72 384 S.Ct. L.Ed.2d 30, 1986) Cong.Rec. (daily Sept. 132 ed. S14296 552(b)(7) (1982)); (quoting 5 U.S.C. Shaw v. (statement Leahy) (adopting S.Rep. of Senator FBI, 36, 40, 58, U.S.App.D.C. 242 749 F.2d 62 "set[ting] legislative history No. out the 221 29, Webster, (1984); Pratt v. note 218 should be consulted to determine 413, 22, U.S.App.D.C.at 673 F.2d at 414- scope adopting of the section we are 416. bill”); Cong.Rec. (daily ed. 132 H9465-H9466 8, 1986) (joint Representatives Oct. statement of Abramson, 137, 138. FBI v. 456 U.S. at Kindness) (same). English Reporters’ Cf. 622, 2059, 102 S.Ct. at L.Ed.2d at Pratt 29, v. Webster, Freedom the Press United States Comm. U.S.App.D.C. supra note v. at 10, 426, U.S.App.D.C. 22, Dep't n. 673 F.2d at 413. (1987). 737 n. 10 816 F.2d 139. FBI, 402, 407, Vymetalik v. (1986). 142. Shaw v. FBI,supra U.S.App.D. Webster, (quoting at F.2d at Pratt v. C. Supra note 29. 673 F.2d Levi, 420); Founding Scientology v. Church of Congress’ amending Exemp- recent action (D.D.C.1982),aff’d, F.Supp. qualifies authority tion 7 no measure (1983). This 721 F.2d 828 history legislation Pratt. As the the 1986 greater agency’s test deference affords clear, nothing respect Congress makes did investigation than own characterization showing the threshold of law-enforcement not one if the were would be summoned report purpose that Pratt elaborates. en principal is criminal law function "whose Judiciary on S. 98th Senate Committee 29, 218 Webster,supra Pratt forcement." (1983), Cong., 1st the amend- Sess. stated that U.S.App.D.C.at 673 F.2d question "does ment not affect threshold ‘records or withheld un- whether information' FBI, U.S.App.D. (b)(7) Shaw ‘compiled were enforcement der for law Webster, (quoting Pratt v. C. at 749 F.2d 63 purposes.’ standard still have to be This would U.S.App.D.C.at protection to claim satisfied (b)(7) order 421). S.Rep. Cong., exemption.” No. 98th 230 2, 5, 670, 3 and 54 Stat. 671. This inves- cоnnection have a rational

basis investiga- agency’s tigation opened in was 1941 and closed object King.147 1952 after tion.144 the death Carol Pratt court to requires a Thus, in no wise clearly King This account identifies Carol pretextual are agency claims that sanction but, target investigation as the As we credulity.145 strain or otherwise specify the “connection between [her] showing re- threshold explained, the have possible security risk or violation of fed- one, quired by Pratt “objective” an law,”148 simply eral recites the criminal only if establish the “suffices to pursuant investiga- statutes to which the that by persuasive evidence it is unrefuted undertaken, presumably tion was indicat- another, nonqualifying reason in fact ing parameters that somewhere within the “for exam- investigation,” as prompted the general provisions of those criminal were investigation is ple conducted] [where suspected that the FBI acts her of commit- of harassment.”146 purposes for FBI, however, ting. The contended before case, supplied the the FBI present In the adequate the District Court that it had investigation following description of grounds investigate King in that Carol sought-after documents were for which King “Mrs. close association with compiled: organizations individuals and that were of FBIHQ subject of King is the Carol FBI,”149 investigative as- interest is com- file which “main” serting the redacted files released to 1,665 file is an pages. This prised of appellant, together appellant’s own investigative file com- Security Internal submissions, provided sufficient evidence purposes pur- enforcement piled for law support such associations to its claim of 18, U.S.C., 2383 to Title Section suant purpose.150 law-enforcement Insurrection), (Rebellion formerly codi- Appellant has to controvert endeavored U.S.C., (1940 18, Section fied as Title First, grounds. the FBI’s claim on two ed.), of March originally enacted as Act appellant supplied series of at affidavits 4, 1088; 4, 1909, 31, ch. Section 35 Stat. testing King’s character and to Carol be (Seditious 18, U.S.C., Title Section liefs, were intended to dеmonstrate Title Conspiracy), formerly codified as King engage any “Carol did not (1940 ed.), 18, U.S.C., originally Section 5 proscribed by the three stat the activities 4,1909, 321, ch. enacted as Act of March any that at no time did there exist utes and U.S.C., 6, 1089; Title 18 Section 35 Stat. ground upon which the FBI could reason (Overthrow of the Govern- Section 2385 suspected might have ably that she 18, have ment), formerly as Title codified Second, ap engaged in such activities.”151 10, (1940 ed.), U.S.C., 11 and 13 Sections attack on the Registra- pellant launched a broader Alien originally enacted as the investigation, 439, I, FBI’s inti 1940, propriety of the tion Act of ch. Title Sections 144. Pratt 29, Webster, U.S.App. of Points and Defendant’s Memorandum v. 30, Opposition to Plaintiffs “Motion D.C. at 673 F.2d at 421. Authorities in Alternative, or, Summary Judgment, FBI, U.S.App.D. Shaw v. Interrogatories Compel and Re- Answers to Webster, F.2d at C. Pratt sponse Request Production of Doc- 673 F.2d at 421 Support of Defendant’s uments” and in Further FBI, (citing Abramson v. Judgment King Summary Motion for (1980), rev’d on other Dep’t Civ. No. 81-1485 grounds, U.S. L.Ed.2d 102 S.Ct. (footnotes 1982), (D.D.C.) (filed R. 33 Dec. (1986)). omitted). 146. Shaw v. FBI, U.S.App.D. 150. Id. F.2d at C. at 63-64. 151. Plaintiffs Summary Judgment, Motion for Staver-Scheuplein supra note 7, 29, supra Justice, v. United (footnote omitted). R. 16 (filed (D.D.C.) (Civ. Oct. No. 81-1485 A-I, id., 26A; 1982), R. 26A. also Exhibits accompanying R. See text. admonition, Heeding

mating inquiry was calculated District Court have properly could concluded that defending the evi King’s efficacy impair Carol King’s not, dence on Carol character did deportation Government clients whose itself, plausibility impugn the of an investi King, appel sought. of Carol Surveillance gation premised on the character of her may speculates, calculated lant have been dispute While associations. a factual fore advantage informational to secure summary closing judgment would have de cases,152 and to ha litigation of individual veloped appellant appropriately had but King in her Carol work rass and intimidate allegation strategem tressed her that a generally.153 as defense counsel investigation, harassment motivated summary cross-motions for On charge wholly sup that remained devoid of judgment, held that the District Court pоrt making record. In out a case of FBI had satisfied Pratt’s threshold show pretext, rebutting an agency burden of Upon ing purpose.154 of law-enforcement showing purpose of law-enforcement rests ruling inspection, supported by find plaintiff.156 Yet, on the FOIA so far as we Pratt counsels against “sec determine, record. appellant proffered can no evi ond-guessing” agency’s a law-enforcement support dence her claim that the to investi investigatory purpose gation if there showing King of Carol was undertaken for impermissible plausible undertaking.155 for the reasons.157 is a basis Without such ev might Appellant underpinned n. R. 26A. have 152. Id. at 30 her alle- gation by of harassment or intimidation exhibit- First, Appellant FBI’s surveil- ing asserted that types. appellant evidence of two "tapping King’s] telephone might lance allegations [Carol included have substantiated in her office, having briefs, and her followed both at home supra; Appellant see note 153 Brief for agents, having agents, in at one several least King n. that surveillance of Carol [appellant], to stationed in the instance known justify was intrusive in as to so nature an infer- her office and on the street in front hall outside ence that harassment or intimidation was its home, breaking of her and even into her office object. Despite peppering allusions anecdotal correspondence.’’ photographing and 31, her Id. at briefs, appellant’s such evidence re- no was likely R. This course of conduct was 26A. Appellant’s single, to the District Court. vealed designed King, appellant rea- to harass Carol King "Carol unelaborated averment that was sons: subjected to aware that she constant obser- many Certainly King Carol who dealt serving a result of her for vation as counsel were aware the FBI’s constant clients,” with her unpopular Exhibit J to Plaintiffs Mo- surveillance, for much of it was conducted in Summary Judgment, supra tion for purpose open apparent with the of dis- 26A, surely support R. cannot an inference of professional relationships by turbing her Altеrnatively, appellant vexation. deliberate might impeding her communications between allegations bolstered with direct have her herself. one and associates and At clients But, impermissible aside evidence of motive. complained telephone compa- point she to the suggestion in the released files that from some ny wiretaps that the noise from the made whether to continue surveil- FBI debated conversations, carry on and she difficult to King, Appellant Brief for lance of Carol meeting city parks to clients in had to resort which, standing again, 20 n. a mere hint 13— subways agents to avoid the FBI who not alone, hardly purpose ap- illicit demonstrates — hung infrequently her office. around pellant proffered no evidence motive direct of. 31, R. Id. at n. 26A. allegations impropriety. up her back bring Appellant did the District Court’s Dep't v. United States interrogatories attention several unanswered F.Supp. at 293-294. motive, argu- directly bearing question of on the ing for summa- the alternative to her motion Webster, U.S.App. 155. Pratt v. Exemption ry judgment 7 claims that should the ("in carry F.2d at order to D.C. at trial, compelled proceed the FBI should functions, agency] [a out its law-enforcement Summary respond. for Motion See Plaintiffs upon tips suspi act unverified often must (con- R. Judgment, supra 26A upon cions mere tidbits of information. based questions responses tending were to such therefore, court, should be hesitant second- A privi- nor and neither burdensome relevant leged). guess agency’s decision to a law enforcement represented appellant never But investigate plausible basis for its if there required by means of the affidavit court decision”). 56(f) discovery of materi- such Fed.R.Civ.P. FBI, issue of material to advance an al was essential 242 U.S. 156. See Shaw FBI’s motion to withstand the App.D.C. fact sufficient 749 F.2d at 63-64. ruled, text,159 idence, properly supplies we find that it the District Court the informa- summary judg requisite on the cross-motion for de novo review of the ment, no factual presented record exemption, 7 claims. The latter purpose respecting issue a law-enforcement part, in relevant concerns issues of privacy stemming that Carol from the association ‍​​‌​​‌​​​‌​​‌‌​​‌​​‌‌​‌‌​​‌‌​​‌‌‌‌‌‌​​‌​‌‌​​​​‌‌‍confidentiality arising from the in- therefore turn to King maintained. We persons volvement of discrete classes of asserted examine the 7 claims investigations. law-enforcement The in- here. dexing system question classifies and persons describes the interests of such B. specificity convey with sufficient an ade- portions of the The FBI withheld quate understanding character they pro ground the that are file on justifi- the material withheld as well the 7(C) Exemption by tected from disclosure withholding.160 cation advanced for (D).158 in The material retained was 7(C) Exemption immunizes from disclo- by catalogue dexed use of a code similar to incorporating sure records information employed by FBI in its effort that the to gathered for purposes law-enforcement to withholding Exemption under vindicate its the extent that its release Notwithstanding would “consti- the deficiencies Exemption in descriptive personal format con- tute an unwarranted invasion of summary judgment Exemption on the 7 claims. demonstrate how additional time will enable 4-5, appellant allegations genuine See id. at R. 26A. We note that him to rebut movant’s of no 56(f) fact); Anaconda, initially submitted a Rule affidavit to se issue of Weir v. 773 F.2d case, (10th Cir.1985); discovery cure in see Affidavit Pursu 1082-1083 see also Brae 56(f), King Transp., 1439, Cooper Lybrand, to Rule ant United Inc. v. & F.2d (D.D.C.)(filed (9th Cir.1986). Civ. No. 84-1485 Mar. when, 1982), But, R. 19A. more than six exemption reproduced pertinent 158. The later, is in appellant opposed months the FBI’s mo part in text at note 136. summary judgment tion for and herself moved summary judgment, seeking in the alterna 11(C)supra. compelling response remaining 159. See Part tive an order discovery to items, protec she did not invoke the time, original 56(f) 7(C) tion of the Withholding motion. At this under is 56(f) appellant justified neither sought by submitted a new affida to be means of numerous vit, which, turn, provided descriptive subcategories nor the court like notice in lieu of in ad- requisite. privacy personnel, the affidavit Advertence to unsat dress the interests of FBI discovery compel employees, isfied demands in a motion to other federal and state and local participated advanced in the alternative to a motion for law-enforcement officials who in summary judgment impart investigation; parties did not to the court of third who furnished Indeed, contemplated by 56(f). employment the notice Rule information as a result of their sources; appellant any representation parties if made at all institutional of third men- files; respecting investigative parties the court a connection between dis tioned in FBI of third summary covery judgment, subjects suspects it was that the who were or of an FBI investi- file; adequate ruling. gative parties gave record was for such a See and of third who Summary Judgment, Withholding Exemp- Plaintiffs Motion for su FBI information. under 4-5, 7(D), pra pertains 26A. In R. these circum to matters of source tion confidentiality, stances, appellant any opportunity subcategories forfeited is described in material, bearing symbols have the court consider additional on code or letters used to iden- sources; production might properly tify might of which have been material that confidential compelled prior ruling provided point to a on the to sources who the FBI with express implied claims. See Shavrnoch v. Clark Oil & or assur- information under an Ref. (6th Cir.1984); Corp., confidentiality Paster or reveal information ance of supplied by sources; Inc., Exploration, nak v. Lear Petroleum information fur- such institutions; (10th Cir.1986) (protection by nished financial or commercial 56(f) by given by afforded sponse Rule is or law an alternative to re and information state local tending identify opposition summary agencies to motion for or enforcement 56(e), judgment designed catalogue entry under Rule and is such sources. A code described safeguard against premature grant summary privacy confidentiality implicated interest or (Rule 56(f) judgment) may not be invoked each class of information and detailed the discovery ground withholding. incomplete assertiоn that Staver-Scheu- mere is FBI's specific necessary oppose summary plein facts R. unavailable; judgment opposing party are must see also id. at R. 16. weigh properly undertook to those the Court Appellant contends that privacy.”161 against public interest dis- invoked interests improperly FBI might Though serve to of file information semination material.167 we withhold parties public mentioned identify third the court underrated the believe that file, identified as parties third investigative disclosure, favoring interest considerations FBI investi- suspects in the subjects orof find its ultimate conclusion correct parties provided file, who gative and third privacy interests here asserted out- officials.162 to law-enforcement information public weigh might benefit as attend such dispute. file release correctly rec the District Court As per classes ognized, all three these conducting a novo of Ex- In de review priva cognizable interest have sons claims, 7(C) emption the district court must law-enforce cy of their involvement privacy at stake interest^] "balane[e] investigation.163 We have admon ment public in disclo- against interest disclosing the identi repeatedly “that ished court remain sure.” And the must investiga targets of law-enforcement ty of while, exemp- to other mindful that “[a]s to embar subject those identified tions can tions, ‘Congress has struck the balance and repu more serious potentially assment and finding the court is limited to duty harm,”164 “[ojther per and that tational defined the material within the whether in the investiation —witness sons involved 7(C)’s category’ ...[,] balance is informants, investigating agents— es, and similarly emphatically in favor of not ‘tilted seeing interest in substantial also have a ”169 disclosure.’ remains secret.”165 participation that their investigatory in parties Third discussed general premise Starting from the strong in may similarly interest files have difficult, impossible, ‘is if not to that “it non-disclosure.166 anticipate respects in all which disclosure damage reputations per to might lead Having privacy interests perceived the ”170 discomfort,’ file, and implicated by King the District sonal embarrassment Justice, 33, (as 552(b)(7)(C) (1982) Dep’t supra note 204 amended United States 161. U.S.C. 5 of 216, 1986, (protecting U.S.App.D.C. at of 99-570, Reform Act of at 636 F.2d 488 Freedom Information N, 1801, subject’s family regarding 100 and asso- subtit. Stat. information Pub.L. No. ciates). (1986)). 3207 Appellant 23. 162. Brief for at 167. See Justice, King Dep’t v. United States of 2, F.Supp. supra 294-295. note 586 at Justice, King Dep’t supra v. United States of 2, F.Supp. at 294. note 586 168. Lesar United States Justice, supra Dep't v. of 214, 33, U.S.App.D.C. at 636 F.2d note 486; 204 at Rico the Commonwealth Puerto Senate of of 302, 309, FBI, U.S.App.D.C. see Stern v. 237 Justice, 574, Dep’t 823 F.2d v. United States of 84, (1984). 91 737 F.2d (D.C.Cir.1987); see Fund Constitutional 588 Serv., v. & Record 211 Gov’t National Archives 169. Senate Rico Puerto Commonwealth of of 856, 267, U.S.App.D.C. 656 F.2d 863- 164, Justice, Dep’t supra note States v. United of Justice, 865(1981); Dep’t v. United States Baez of Dep’t (quoting Lesar v. United States at of 215, U.S.App.D.C. at 647 F.2d Justice, U.S.App.D.C. at 214 n. at 1338. v. United F.2d at 486 n. 80 and Bast Justice, Dep't 214 U.S. States of 165. Senate Commonwealth Puerto Rico of of 1254); App.D.C. also Bast at 665 F.2d at see Justice, Dep't v. of Justice, Dep't supra note v. United States Justice, of Department Bast v. of ("the U.S.App.D.C. F.2d at 214 7(C) 433, 436, U.S.App.D.C. 665 F.2d stigma potential exemption recognizes the Justice, (1981); Dep’t v. United States Lesar of investiga ly enforcement associated with law 636 F.2d privacy rights to sus tions and affords broader (‘‘[t]hose cooperating enforce- at 488 with law witnesses, investigators"). pects, and pay price of full dis- ment should not now detail”). personal closure of Justice, supra Dep’t King v. United States of (quoting See, F.Supp. Lesar e.g., at 295 N. Laborers’ Int'l Union Am. Justice, supra note Dep’t United United States 1, 488). (1984); Lesar v. By estimate, observed that their appel- the District Court disclosure. “ ‘McCarthy of this investi- lant’s intention of using era’ character announced re- gation” privacy strengthened prepare interests leased biography information to “ militating against release.171 ‘A mo- of King’s Carol life and work reflected a political recent upon interest, his- public ment’s reflection matter of although “some tory very think, and internal securi- the excesses minimal.”175 to We the con- ” 1950’s,' ty investigations of the the court trary, publiс value such a work “ said, signal cau- might ‘should be sufficient considerable view “the im- derogatory dealing tion in with unverified portance King legal of Carol intelligence material files of an within the social day controversies her [and] ”172 gathering government.’ agency of any published lack of history extensive public perception Noting further that causes she was in- volved____”176 persons engaged thought to have “sub- was, however, appel- It activities, well thought as those versive” lant’s burden support “adequately ... persons, such have associated with ‘public claim respect interest’ [her] subject swings, unpredictable the court specific being with- rejected appellant’s argument pas- that the Appellant held.” has attempted not sage privacy of time diminished the inter- demonstrate how disclosure the identi- turn, We, in ests at stake.173 find no basis specific persons ties of the classes of overturning sufficient to warrant an issue would in preparation be of moment regard. judgment court’s in this Given the Indeed, emphasizes her book. her she in- varying roles of those mentioned in the career, tention King’s to focus the on book ranging investigators from file— disavowing any “purpose to discover or suspects informants to their associ- write particular about the methods of sur- very ates—we view the division and volatil- King’s veillance that used in Carol were ity public opinion these matters as case,” addressing investiga- the FBI’s ample degree reason for of caution the that only public tion “that to the extent the be the court exercised.174 aware of the general in conse- [made] Against quences significant privacy unpopular the that of interests defenders implicated in question, the causes been material the have sometimes made to suf- public weighed posture, District Court the fer.” In interest this decline to dis- 171. Justice, King Dep’t King, prominence, supra persons v. United States themselves of attest- of 2, ing F.Supp. importance note at 295. to the of her contributions to equal justice country. the cause in this of See Summary Exhibits A-I tо Motion for 172. Id. Plaintiff’s Webster, (quoting Dunaway supra note Judgment, supra 7. note 1079, F.Supp. quoting at in turn Cerve- CIA, (D.Colo.1978)). ny F.Supp. 177. Senate the Commonwealth Puerto Rico of of Justice, Dep’t supra v. United States note of 173. Justice, King Dep’t supra v. United States original); (emphasis at 588 in accord Bast v. F.Supp. note 295. at Justice, Dep’t supra United States (in at 665 F.2d at 1254 174. In sustaining appraisal Court’s the District claims, 7(C) evaluating district court must risk, privacy at interests we have noted “weight] specific against privacy the invasion that, representation the FBI’s uncontroverted document”) (cit- given disclosing the value of (b)(7)(C) knowledge, the exemp- best of its “the ing Common Cause v. National Archives & protect persons tion was asserted to those 179, 184, Serv., Record living," Staver-Scheuplein who are (1980)). as well at R. as its assertion publicly that information was ”[w]here known 178. Summary Exhibit J Motion for to Plaintiffs innocuous, disclosed,” or was it was id. at R. added), Judgment, (emphasis at 6 16. 26A; Dep’t R. Lamont v. Justice, 122, 475 (sanc F.Supp. supra note at 782 175. King v. United States tioning withholding "public interest in where F.Supp. minimal, knowing precise is identities while persons subject post-War involved in or Appellant Appellant produc- alleged privacy 176. Brief for have a hunt for Communists nondisclosure”). ed a in series of affidavits from associates of Carol interest marked, ed in conclu- documents not so the court ultimate the District Court’s turb by accepted FBI’s asserted assertion that the infor- privacy interests sion that withholding they incorporated out- mation was un- obtained FBI in defense attending implied confidentiality. dis- der interest assurances of any public weighed Recalling “the tenor of the times which closure.179 [in investigation conducted,” was the] materi- additionally retained The FBI has placing particular emphasis upon the fact King pursuant to file al “many of the close informants were in disclosure 7(D), safeguards from King organiza- association with Ms. well as identity source as of a confidential FBI,”185 tions which were interest to the by that source.180 furnished apparent the court reasoned that this con- the FBI’s Sec- sustained The District Court allegiance presented in flict “a circum- Ap- in 7(D) withholding claims full.181 implied from stance which the assurance ruling propriety of this pellant contests confidentiality reasonably in- could evidence single ground that on ferred.” con- in fact did not show sources proffered warrant degree in sufficient to fidential Appellant would have us overturn the FBI.182 in summary judgment favor District Court’s determinations on the theo- ry skep- sufficiently that the court was not words, having, The District Court tical about the FBI’s use of the “confiden- the doc- painstakingly each of “reviewed during period tial informant” label pro- for which the claimed uments” and, compiled; when the file was 7(D), concluded tection moreover, readily too inferred an withholding properly supported. expectation confidentiality part on the “confiden- documents marked As to those provided who the FBI with interviewees compila- at the time of their tial informant” appellant “laudatory what characterizes as tion, “a indication” the court found clear distinguished ... or ... innocuous” express of confi- record that assurances “accusat[ory]” We from information.187 dentiality were afforded the informants re- ruling decline to disturb the either As those interviews record- question.184 FBI, which the record as bear on them. The technically Cf. Constitutional Gov’tv. National Fund for Serv., proof bears the burden of & Record Archives 552(a)(4)(B) (1982), question, see 5 U.S.C. beneficiary appear to be the nominal would 180. The text of the reproduced of the uncertain our forbearance. But in view pertinent part in text 7(D) showing, appellant’s fail- nature are classes of material withheld thereunder enu- indeed, put we un- the matter in ure issue— supra. merated in note 160 challenge withholding of the derstand her as source insofar confidential information Justice, supra 181. Dep’t v. United States challenges the the confidential status of she F.Supp. at 295-296. Appellant for FBI’s sources—see Brief reserving judgment inequity until see no in we 182. Brief for Exemption Appellant at 36-37. presented question properly is such time as the 7(D) withholding any appears to condition Gov’t Cf. Fund Constitutional for decision. for by confidential source information furnished a Serv., supra note Archives & Record National showing. separate on a See text threshold U.S.App.D.C. 272 n. & ("and, at note 136 in the case a record or & n. 13. compiled by ... an con- information intelligence ducting a lawful national Justice, supra 183. King United States investigation, by a confi- information furnished F.Supp. at 296. source"). magnitude of this show- dential ing by required Pratt for over and above that 184. Id. Exemption generally in this remains unsettled Webster, Compare Pratt v. circuit. 185. Id. at 33 at 424 n. FBI, n. 39 Shaw v. with comprehended judgment as well Id. This U.S.App.D.C.at 749 F.2d at 63. We do not by 7(D) withholding Exemption asserted here, important question address this for it was supra. See notes INS. parties. briefing, briefed neither of the Such believe, indispensable focusing is both the Appellant 36-37. aspects for Brief matters of law in issue as well as such gard. thorough STARR, After a examination of the Judge, Circuit concurring in part documents, concurring judgment: in the redacted the court satisfied it- contemporaneous self that identifica- judgment, I concur in agree supplied tion of sources as “confidential” this case can appropriately be remanded 7(D) Exemption sound factual for the basis for further clarification of Exemption upset claims. It is not for us to that con- of the FBI. I join also Part III of claims Judge appellant point opinion Robinson’s clusion where can to no meticulous with respect Exemption I issue. am countervailing record evidence that would constrained, however, join not to question.188 call it into opinion, remainder of the especially to the equally appel- ineffectual We view extent that it condemns the Bureau’s use challenge lant’s to the determinations on indexing system an comply with its implied confidentiality. Ap- assurances of responsibilities. FOIA pellant that no inference of insists confi- respects, In explanations some pro- dentiality possible is because the informa- appellant vided to non-production for provided by benign such sources was requested documents arguably were inade- argu- nature. We observe first that this quate. view, In my the court is therefore impetus entirely ment ap- derives from justified requiring explain Bureau to pellant’s own characterization of the infor- fully more denying produc- bases for and, further, in question, mation that the tion of Exemption documents under essentially characterization is a reflection Justifying a peculiar remand are the factu- skepticism of her of the motives and con- al particular, circumstances of the case. In animating cerns investigation the FBI’s requested documents were created at King. appellant Carol Whether deems the years ago; least 35 some are as much as 46 question years “laudatory” Appellant or “in- old. deserves a more de- explanation tailed nocuous,” agency’s judged the FBI reasons it to be of inves- relying 1 in these circum- tigative significance time, at the and those Thus, stances. I Judge am in accord with FBI likely interviewed most understood Robinson that purpose a remand for that reject speculate this. We the invitation to in order. about the circumstances of the interviews However, question I am agree on the basis of unable to partisan my colleague’s general analysis condemnation of the appellant offers. The District indexing system. Bureau’s thing, For one proceeded Court cultivating instead first unpersuaded I am that the FBI should be vantage point contemporaneous with the required begin again all in crafting over examining interviews and then the rela- appropriate methodology setting allegiences tions and gave those who legal position forth its under approach information. find this We differ, While may reasonable minds I am reasoned, and, soundly in view of the FBI’s satisfied that the approach new fashioned general honoring interest in expec- source should, by the Bureau in most circumstanc- confidentiality, tations of upset decline to es, muster, pass especially where volumi- the court’s determinations.189 We there- nous documents are at issue in the most fore disposition affirm the District Court’s sensitive jurisprudence, area of FOIA na- claims, and remand the security. sure, tional system To be case for proceedings further Exemp- perhaps could benefit from further refine- claims in opin- accordance with this reducing ment such as generality ion.190 categories index to the extent consistent So ordered. legitimate concerns over national se- 188. See Lesar v. United States 189. See id. at 636 F.2d at 489-490. We 7(D) disposition affirm as well the court's supra. claim asserted INS. See at 492. note 186 11(D) supra.

190. See Part said, being I remain of curity. ‍​​‌​​‌​​​‌​​‌‌​​‌​​‌‌​‌‌​​‌‌​​‌‌‌‌‌‌​​‌​‌‌​​​​‌‌‍But that help- this innovation useful

view that

ful; regret very much my part, I would simply by virtue of

if it fell into disuse in this case.

remand

Kenneth MARTIN W. MALHOYT, al., Appellants et P.

John Doe(s), et al.

John

Shirley Ann STEVENS STOVER, al., Appellants et

David H. Doe, et al.

John 86-5561, 86-5565.

Nos. Appeals, Court

United Circuit. of Columbia

District 25, 1987.

Argued March 29, 1987. Sept.

Decided Rehearing Denial

Opinion On 24, 1987.

Nov. notes 96 strate that each withheld document fell within claimed). categories order executive Justice, Dep't 129. See Lesar v. United States 62, CIA, Halperin 123. See 33, 213, at 115-116, F.2d at 149-150. (FOIA "requires procedural both and at 485 conformity proper substantive for classifica- 3-301, 12065, Fed.Reg. 124. Exec.Order No. § tion”). (according "emphasis at 28955 declassification classification”). comparable to that accorded Foreign pertinent part, In the FBI Counter expressly provides 125. Id. The order that re- II, 1-2.4.2, quoted Intelligence in Manual at as subject request view of material a FOIA to 9, Declaration, supra Staver-Scheuplein the should result in the declassification "unless ... at 4 n. R. states: information continues to meet the classification activities, anticipated sources ... It is that the requirements despite passage in Section 1-3 the protec- to warrant and methods will continue 3-302, Fed.Reg. § of time." Id. at at 28955. specific beyond years no six and since predictable protection not Fed.Reg. when will date is 126. See id. at at 28955- warranted, up is extended to classification beyond period doc- agency’s withheld whole decades the the FBI nevertheless has regulations theory passages presumptively on the that own deem neces- and uments sary.131 capable of iden- Before a court can they information accord the contain source, leaving us deference due FBI’s intelligence thе considerable ex- tifying an question, pertise agency their on this information on the must no contextual why impart understanding as a fair of its and no hint to reason- general contents item-specific ing light on In material was extended basis.132 classification of the affidavits, prior inadequacy agency's to time the years. that of the the Declassification ongoing inspection of intelli- inhibit collection court warranted, in could concluded that camera was information, gence jeopardize identities sample inspect and to decided a and expose meth- sources and valuable task, sensitive delegate the remainder of the with detailed intelligence gathering detri- data to the ods of instructions, special to a Id. master. at 1515. counterintelligence of our mission. ment appearances, Vaughn From all the index sub- substantially mitted in Powell is similar in for- See, Staver-Scheuplein e.g., A Exhibit mat to that in issue here. Cf. id. Declaration, supra note No. 9 Document (describing 18, 1942) (classification characteristics of index and (dated format Aug. R. 16 id., 1981); concluding approach that FBI’s ‘coded "[t]he Document finalized Nov. decision No. 31 and enclosure, (dated Vaughn Dec. the index’ is little than R. better the con- (classification 1943) clusory generalized finalized Nov. allegations exemp- decision (dated id., 1981); No. at 1-3 Mar. Vaughn disapproved”) Document tion which with Staver- (classification 1945) Nov. decision finalized Declaration, Scheuplein R. id., (dated 1981); 68 at 1-2 Document No. (discussing approach "coded the 17, 1948) (classification decision finalized Feb. Vaughn index” followed in the in submission (dated 1981); id., No. 87 Document Nov. case). the instant 14, 1951) (classification Apr. finalized Nov. Webster, Dunaway F.Supp. In 1981). (N.D.Cal.1981), involving another case a FOIA procedural compli- Among the assurances of request investigative compiled FBI files dur- declaration is the statement ance offered the ing McCarthy period, the the court found the containing infor- classified that each document lacking specifici- FBI’s affidavits in twenty years or was mation older refеrred focusing ty, particularly agency's on the failure Department the the of Justice for review age to address the of the classified documents— Attorney General to determine whether contin- favoring light policy this "in of the clear declas- despite passage the of time ued classification sification Executive Order 12065.” Id. at reports, in an was appended Declarant Staver warranted. inspect 1069. It undertook to the documents regard this I was footnote "[i]n camera, and that this exercise did concluded Department] the determined that [that advised dispel little the court’s doubts. Most of ... year the 20 old or older information contained comings the concerns information by this documents addressed declaration goings years United citizens 20 to 30 despite continued warrant classification ago, general well as accumulation passage of time. I was further advised that orga- activities of various information of declassification review for this informa- date country con- nizations this which were years." be established at 10 Staver- tion should Scheuplein 9, Virtually at that time. all sidered subversive at 6 & n. explanation most mundane No of the information is character, R. 16. further elaboration appears apparent in the declaration. which has no information security relationship to of this nation to- example, in Powell v. United States For had____ day, Many organiza- of the if it ever recent case defunct, many long- spied are tions on are no involving request McCarthy-era a FOIA risk, security many er considered files, investigative age the court held Without some individuals involved are dead. (from contention classified government evidence from the would old) years any presump- 22 to 35 tended to rebut suggest to this court that sources revealed damage tion of to the national from continuing use to in these documents are release, Vaughn required in its security pin- the poses, for national significance submissions address the any basis for this court cannot find age. initially Vaughn documents' index information, disclosed, believing that if pur- proffered judged unacceptable for this

Case Details

Case Name: Cynthia King v. United States Department of Justice

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Sep 28, 1987

Citation: 830 F.2d 210

Docket Number: 84-5098

Court Abbreviation: D.C. Cir.