Ellen L. RAY and William H. Schaap, Appellants, v. Stansfield TURNER, Director Central Intelligence Agency.
No. 77-1401
United States Court of Appeals, District of Columbia Circuit
August 24, 1978
As Amended Nov. 15, 1978
587 F.2d 1187
Michael F. Hertz, Atty., Dept. of Justice, Washington, D. C., with whom Barbara Allen Babcock, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., and Morton Hollander and Leonard Schaitman, Asst. U. S. Attys., Washington, D. C., were on the brief, for
Ira M. Lowe and Martin S. Echter, Washington, D. C., were on the brief for amicus curiae Baez, Hayden and Fonda.
Before WRIGHT, Chief Judge, and TAMM and LEVENTHAL, Circuit Judges.
Opinion Per Curiam.
Opinion filed by WRIGHT, Chief Judge, concurring in the remand.
PER CURIAM:
This appeal presents the question whether the district court erred in dismissing a lawsuit under the Freedom of Information Act (FOIA) upon the basis of affidavits supplied by an official of the Central Intelligence Agency (CIA). We find there was error and remand.
I. PROCEDURAL BACKGROUND OF LITIGATION.
Plaintiffs (appellants) Ellen Ray and William Schaap sent identical letters to the CIA requesting “a copy of any file you may have on me.” The CIA replied that while it did not have files on plaintiffs, there were documents in CIA files that referred to plaintiffs. The CIA refused to release those documents, and after administrative appeals were exhausted, plaintiffs brought this action under the FOIA. The CIA subsequently released portions of the withheld documents, and the government then moved for summary judgment, relying principally on affidavits of one Eloise Page. The critical affidavit, set out in the appendix, purports to describe the documents at issue and the grounds for the government‘s claims of exemption.1
The district court granted the government‘s motion for summary judgment and denied plaintiffs’ motion for in camera inspection.2 It found that the withheld documents were exempt from disclosure under the FOIA on the basis of Exemption 1 alone, Exemption 3 alone, or the two exemptions coupled together. As to Exemption 1,
In a key passage, the district court‘s opinion stressed that “there has been no credible challenge to the veracity of these averments [in the affidavits] and nothing appears to raise the issue of bad faith.” In denying in camera inspection, the district court relied on Weissman v. CIA, 184 U.S. App. D.C. 117, 565 F.2d 692 (1977). Specifically, the court found with respect to Exemption 1 that
[t]he affidavits in this record are specific and detailed. The record further indicates that the Agency dealt with plaintiffs’ requests in a conscientious manner and released segregable portions of the material. No abuse of discretion has been shown.
Memorandum Opinion at 3.
Regarding Exemption 3, it ruled:
With respect to documents withheld under exemption 3, in camera inspection is seldom, if ever, necessary or appropriate. * * * Exemption 3 differs from other FOIA exemptions in that its applicability does not depend on the factual content of specific documents.
Id. at 4.
On appeal, the government insists that the pertinent documents are exempt under Exemption 1 and are also exempt under Exemption 3.5 Plaintiffs assert that discovery and in camera inspection by the district court was required, because documents 2 through 10 contain segregable material that is not exempt, and because neither document 2 nor document 10 is exempt under Exemption 1.
II. RELEVANT CONSIDERATIONS IN FOIA CASES INVOLVING NATIONAL SECURITY ISSUES.
The FOIA was passed in 1966, as an amendment to the Administrative Procedure Act, in order to increase disclosure of government information to the American people. Agencies were required to disclose all records that did not come within one of nine explicit exemptions specified by Congress.6 In the event of agency nondisclosure, the Act provided for court review. In any such case, “the court shall determine the matter de novo . . . and the burden is on the agency to sustain its action.”7
A. Judicial Interpretations and Legislative Modifications.
In EPA v. Mink, 410 U.S. 73, 81-84, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), the Court considered Exemption 1, which at that time covered matters “specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy.”
In 1974 Congress overrode a presidential veto and amended the FOIA for the express
Furthermore, the 1974 revision changed the FOIA language describing the role of a reviewing court considering any claim of exemption. It provided that “the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action.”
Exemption 3 originally exempted matters “specifically exempted from disclosure by statute.”
provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.”
B. The Nature of De Novo Review.
Procedures to be observed
In Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (1973) cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974), this court sought to cope with the difficulty of providing de novo review of exemptions claimed by the government. It initiated procedures designed to mitigate the administrative burden on the courts and ensure that the burden of justifying claimed exemptions would in fact be borne by the agencies to whom it had been assigned by Congress.
The court took its cue from a portion of the Supreme Court‘s Mink opinion that was not overruled by Congress—the portion discussing how a court should proceed when there is a factual dispute concerning the nature of the materials being withheld.11 “Expanding” on the Supreme Court‘s “outline,” the court established the following procedures: (1) A requirement that the agency submit a “relatively detailed analysis [of the material withheld] in manageable segments.” “[C]onclusory and generalized allegations of exemptions” would no longer be accepted by reviewing courts. 157 U.S. App. D.C. at 346, 484 F.2d at 826. (2) “[A]n indexing system [that] would subdivide the document under consideration into manageable parts cross-referenced to the relevant portion of the Government‘s justification.”
In proposing the 1974 amendments, the Senate Committee outlined the ruling in Vaughn and added, “The committee supports this approach. . . .”13
The judicial function as emphasized by 1974 amendments
In some of the decisions involving national security issues, there has been confusion about the nature of the evidentiary burdens and the scope of the district judge‘s discretion. This uncertainty is due to a misunderstanding of the legislative history of the 1974 amendments.14 There were differences in 1974 between the Senate Committee and the House, between the Senate and its Committee, and between the Legislative and Executive Branches. For an authoritative exposition of the purpose and effect of the 1974 amendments, it suffices for present purposes to quote a few key paragraphs of the Conference Committee report:15
The conference substitute follows the Senate amendment, providing that in determining de novo whether agency records have been properly withheld, the court may examine records in camera in making its determination under any of the nine categories of exemptions under section 552(b) of the law. In Environmental Protection Agency v. Mink, et al.,
The original opinion in Weissman stated that Congress had recognized the lack of judicial expertise by indicating “that the court was not to substitute its judgment for that of the agency.” Weissman v. CIA, supra, slip op. at 10 (preamendment version). In fact, Congress expressly refused to approve such deference.
In Bell v. United States, 563 F.2d 484 (1st Cir. 1977), the First Circuit relied in part on a portion of a Senate Report, S.Rep. No. 93-854, 93d Cong., 2d Sess. 16 (1974), that describes a provision in the Senate Bill as reported from committee that was later deleted on the floor of the Senate because it was considered too deferential to the agencies. To the extent that any language in Bell is inconsistent with the approach outlined in this opinion, we must respectfully decline to depart from our understanding of the mandate of Congress.
The result in Bell may be justified on the particular circumstances of that case. It was a suit to release over 500,000 documents gathered by the Allied Intelligence Service during World War II under the ULTRA program. The Secretary of Defense had exempted these documents from the automatic declassification schedule pending completion of a specific program designed to review individually the classification of all the documents by 1980.
* * * * * *
When linked with the authority conferred upon the Federal courts in this conference substitute for in camera examination of contested records as part of their de novo determination in Freedom of Information cases, this clarifies Congressional intent to override the Supreme Court‘s holding in the case of E.P.A. v. Mink, et al., supra, with respect to in camera review of classified documents.
However, the conferees recognize that the Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects might occur as a result of public disclosure of a particular classified record. Accordingly, the conferees expect that Federal courts, in making de novo determinations in section 552(b)(1) cases under the Freedom of Information law, will accord substantial weight to an agency‘s affidavit concerning the details of the classified status of the disputed record.
The legislative history underscores that the intent of Congress regarding de novo review stood in contrast to, and was a rejection of, the alternative suggestion proposed by the Administration and supported by some Senators: that in the national security context the court should be limited to determining whether there was a reasonable basis for the decision by the appropriate official to withhold the document.16 In proposing a “reasonable basis” standard, the Administration and supporting legislators argued that de novo responsibility and in camera inspection could not properly be assigned to judges, in part because of logistical problems, and in part because of their lack of relevant experience and meaningful appreciation of the implications of the material involved.17 Those who prevailed in
The salient characteristics of de novo review in the national security context can be summarized as follows: (1) The government has the burden of establishing an exemption. (2) The court must make a de novo determination. (3) In doing this, it must first “accord substantial weight to an agency‘s affidavit concerning the details of the classified status of the disputed record.”20 (4) Whether and how to conduct an in camera examination of the documents rests in the sound discretion of the court, in national security cases as in all other cases.21 To these observations should be
Notes
information being withheld, and that once the description was prepared the Agency realized that there were, indeed, at least some segregable portions that could be released. See Affidavits of Robert S. Young, August 13, 1976, JA 27-30, and Eloise Page, August 13, 1976, JA 31-41, with attachments, JA 42-53 (portions released).
In part, the foregoing considerations were developed for Exemption 1. They also apply to Exemption 3 when the statute providing criteria for withholding is in furtherance of national security interests.
In camera inspection
In the case at bar, the district court observed: “With respect to documents withheld under exemption 3, in camera inspection is seldom, if ever, necessary or appropriate.”23 The legislative history does not support that conclusion. Congress left the matter of in camera inspection to the discretion of the district court, without any indication of the extent of its proper use. The ultimate criterion is simply this: Whether the district judge believes that in camera inspection is needed in order to make a responsible de novo determination on the claims of exemption.
In camera inspection requires effort and resources and therefore a court should not resort to it routinely on the theory that “it can‘t hurt.” When an agency affidavit or other showing is specific, there may be no need for in camera inspection.
On the other hand, when the district judge is concerned that he is not prepared to make a responsible de novo determination in the absence of in camera inspection, he may proceed in camera without anxiety that the law interposes an extraordinary hurdle to such inspection. The government would presumably prefer in camera inspection to a ruling that the case stands in doubt or equipoise and hence must be resolved by a ruling that the government has not sustained its burden.
The issue of bad faith merits a word. The memorandum of the district court noted that there was no evidence of bad faith on the part of the Agency‘s officials. Where the record contains a showing of bad faith, the district court would likely require in camera inspection. But the government‘s burden does not mean that all assertions in a government affidavit must routinely be verified by audit. Reasonable specificity in affidavits connotes a quality of reliability. When an affidavit or showing is reasonably specific and demonstrates, if accepted, that the documents are exempt, these exemptions are not to be undercut by mere assertion of claims of bad faith or misrepresentation.
In camera inspection does not depend on a finding or even tentative finding of bad faith. A judge has discretion to order in camera inspection on the basis of an uneasiness, on a doubt he wants satisfied before he takes responsibility for a de novo determination. Government officials who would not stoop to misrepresentation may reflect an inherent tendency to resist disclosure, and judges may take this natural inclination into account.
III. RULINGS FOR THE CASE AT BAR
Two affidavits were executed by Eloise Page, Chief, Operations Staff of the Directorate of Operations of the CIA. The first is a general statement about the dangers at large of disclosure, background and local color rather than any attempt to link these concerns with specific documents. It is of little aid in the task of deciding whether the nine specific documents now sought come within the claimed exemptions.
Page‘s second affidavit, set out in the appendix, purports to link specific exemptions to specific documents. A glaring defect is that it lumps the exemptions together and fails to identify whether different exemptions are claimed as to different parts of each document. The statement for document 2 reads:
This document is a three-page memorandum the subject of which is “Rennie Davis and Friends.” It is essentially the debriefing report of a sensitive intelligence source. The majority of the information concerns individuals other than the plaintiffs. This document has been denied in its entirety, primarily to protect intelligence sources and methods since the release of any meaningful portion would disclose the identity of the source, and further, to protect cryptonyms, names of CIA personnel and CIA organizational data. Thus exemptions (b)(1), (b)(3) and (b)(6) apply.
The statement for documents 3, 4 and 5 reads:
These documents are one-page cables from an overseas CIA installation which advise Headquarters of the receipt of documents and information from a foreign intelligence service and which concern the plaintiffs and other individuals. They are denied in their entirety pursuant to Freedom of Information Act exemptions (b)(1), (b)(3) and (b)(6).
In reviewing the judgment on documents 2-6, we encounter a complex of difficulties. Exemption 3 permits a withholding under the provisions of
As to Exemption 1, the information that document 2 relates to “Rennie Davis and Friends,” might be some indication that it was reasonable for the official involved to have classified it in the first instance. But that mere reference is not enough information to permit a judge to make an independent ruling that the classification was proper.
Finally, what overhangs and in a sense pervades this case, more vivid as to document 2 but implicit as to the other documents, is the real possibility that what animates the CIA‘s broadsword withholding is the fact that the documents contain commentary on a group of persons, with the CIA‘s position being that Exemption 6 prohibits any revelation from its files about individuals other than appellants. We discuss Exemption 6 further below. It suffices here to say that we do not have any analysis of Exemption 6 by the district court, and the problem is complex.
Overall, we have a critical problem of segregability, that some portion of the document(s) may be exempt, but that the FOIA might contemplate disclosure in part. The difficulty arises from the CIA‘s proffer of multiple exemptions for each withheld document, and is maintained by the district court‘s conclusory rulings.
Documents 7-9
Page‘s affidavit describes document 7 as follows:
Document No. 7 is a three-page cable from CIA Headquarters to the Director, FBI, which provides information on an individual under investigation for the bombing of the United States Capitol on March 1, 1971. It is the report of a highly sensitive, foreign intelligence source.
Page‘s affidavit identifies documents 8 and 9 as intra-agency cables concerning the same matter. It continues: “Each of these documents contains a single, peripheral and non-substantive reference to the Plaintiff Schaap. In each case, that portion has been provided to the plaintiff.”
Documents 7-9 identify a particular subject: information concerning an individual under investigation for the 1971 bombing of the Capitol. There are manifest disclosure problems under Exemption 6 in view of the privacy interests of that individual, as well as under Exemptions 1 and 3. However, the CIA affidavit does not specifically claim that all of the documents (7-9) are exempt under Exemption 6, and that there are no other portions that may be reasonably segregable. And the district court‘s ruling was solely on Exemptions 1 and 3.
Apparently the only direct reference to Schaap in these three documents is the material that CIA has furnished to him, a bare mention of his name and address in document 7, plus the information in documents 8 and 9 that he is a partner in a law firm that has represented the Black Panther party. The CIA does not take the position that the furnishing of these references is fully responsive to Schaap‘s request. It has properly refrained from an approach whereby FOIA applications are read technically and narrowly, like a common law pleading.
However, the CIA again has not been responsive to the requirement that it provide specific affidavits that segregate each of its claims. The “exemption by document” approach has been rejected by our opinions, notably Vaughn, 157 U.S. App. D.C. at 345-46, 484 F.2d at 825-26, and Mead Data Central, Inc. v. Dept. of the Air Force, 184 U.S. App. D.C. 350, 367-70, 566 F.2d 242, 259-62 (1977). The agency may not rely on that approach even in a national security context. The agency must provide a reasonable segregation as to the portions of the document that are involved in each of its claims for exemption. As indicated in Mead, it is important that the affidavit indicate the extent to which each document would be claimed as exempt under each of the exemptions. The courts cannot meaningfully exercise their responsibility under the FOIA unless the government affidavits are as specific as possible.
Document 10
The withholding of document 10 cannot be disposed of on the basis of Exemptions 1 and 3, as the district court held. The government concedes that some of the information in that document is not within the ambit of those exemptions. It argues instead that there is justification for withholding under Exemptions 6 and 7. However, the district court did not rule on these exemptions. We think that their applicability should be considered in the first instance by the district court and remand for that purpose.
The applicability of Exemption 6 depends, as the Supreme Court, held in Department of Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976), on a particularized balancing of privacy interests and the “public‘s right to governmental information.” Id. at 372, 96 S.Ct. 1592 (quoting
The problem requires a balancing analysis. Before the district court considers the matter on remand, it will be able to obtain clarification as to CIA policy and approach.
* * * * * *
We remand for reconsideration of the CIA‘s exemption claims in light of clarification of the affidavits and for further proceedings not inconsistent with this opinion.
So ordered.
APPENDIX
SUPPLEMENTAL AFFIDAVIT
Eloise Page, being first duly sworn, deposes and says:
1. I am Chief, Operations Staff of the Directorate of Operations of the Central Intelligence Agency (CIA). I have personal knowledge of the facts set forth herein, which were obtained by me in my official capacity.
2. Pursuant to the above-captioned litigation, I have again examined documents number 1 through 10 and make the following additional statements as to their contents, the information withheld and the reasons therefore.
| Document Number | Statement |
|---|---|
| 1 | This document is a one-page dispatch from an overseas CIA installation to Headquarters. It transmitted a United States Army report which has been referred to the Department of the Army for their action and direct response to the plaintiff. This document has been provided to the plaintiffs with only minor deletions. The material deleted includes the location of CIA overseas installations, cryptonyms, a pseudonym and CIA organizational data. Thus exemptions (b)(1) and (b)(3) apply. |
| 2 | This document is a three-page memorandum the subject of which is “Rennie Davis and Friends.” It is essentially the debriefing report of a sensitive intelligence source. The majority of the information concerns individuals other than the plaintiffs. This document has been denied in its entirety, primarily to protect intelligence sources and methods since the release of any meaningful portion would dis- |
| Document Number | Statement |
|---|---|
| 2 (cont.) | close the identity of the source, and further, to protect cryptonyms, names of CIA personnel and CIA organizational data. Thus exemptions (b)(1), (b)(3) and (b)(6) apply. |
| 3, 4, 5 | These documents are one-page cables from an overseas CIA installation which advise Headquarters of the receipt of documents and information from a foreign intelligence service and which concern the plaintiffs and other individuals. They are denied in their entirety pursuant to Freedom of Information Act exemptions (b)(1), (b)(3) and (b)(6). |
| 6 | This document is a one-page dispatch which transmits to Headquarters the above-described matter received from a foreign intelligence service. It is denied in its entirety pursuant to Freedom of Information Act exemptions (b)(1), (b)(3) and (b)(6). |
| 7, 8, 9 | Document No. 7 is a three-page cable from CIA Headquarters to the Director, FBI, which provides information on an individual under investigation for the bombing of the United States Capitol on March 1, 1971. It is the report of a high sensitive, foreign intelligence source. Document No. 8 is a two-page cable from an overseas CIA installation to CIA Headquarters concerning the same matter. Document No. 9 is a two-page cable from CIA Headquarters to the same overseas CIA installation concerning the same matter. Each of these documents contains a single, peripheral and non-substantive reference to the Plaintiff Schaap. In each case, that portion has been provided to the plaintiff. The remainder of each document may not be released pursuant to Freedom of Information Act exemptions (b)(1), (b)(3) and (b)(6). |
| 10 | This document consists of a one-page memorandum which transmits a copy of a notebook containing a list of names. This list was secured by the United States Customs Service from an individual at a border checkpoint in a search incident to his arrest for importation of narcotics into the United States. The memorandum was provided to the Plaintiff Schaap with only minor deletions (names of CIA employees, organizational data concerning the CIA, name of a United States Customs Agent). Only that portion of the list containing plaintiff‘s name was provided. Thus exemptions (b)(1), (b)(3), (b)(6) and (b)(7)(F) apply. |
/s/ Eloise Page
ELOISE PAGE
J. SKELLY WRIGHT, Chief Judge, concurring in the remand:1
In passing the Freedom of Information Act (FOIA) the Congress made a national vice given the District Courts in earlier cases, such as Weissman v. CIA, 184 U.S. App. D.C. 117, 565 F.2d 692 (1977), are obvious and significant. Nevertheless, I am disturbed by the terse and at times conclusory fashion in which these important conclusions are rendered. The per curiam opinion fails, in my view, to address adequately the arguments that agencies have used and will no doubt continue to use in their attempts to undermine the positions the court now embraces. Furthermore, the court‘s discussion of the legislative history leaves out
Nevertheless, the federal bureaucracy has been extremely reluctant to embrace the principle of public disclosure on which the FOIA is founded and, with significant help from the federal courts interpreting the exemptions broadly, not narrowly, has succeeded in frustrating much of its implementation—so much so that Congress has repeatedly overruled court decisions restricting disclosure by amending the Act.3 It is against this legislative, judicial, and bureaucratic background, which will be out-
much of the information that District Courts should have before them when they structure their de novo reviews of FOIA claims. For these reasons, and because of the importance of the issues involved, I have decided to set forth in full my views on them and on their application to the facts of this case.
lined in detail herein, that I consider the issues which this case presents.
This case involves an area in which courts have been especially cautious in assuming the supervisory role assigned them by Congress: requests for information whose release would allegedly endanger national security. Appellants Ellen Ray and William Schaap, stating individually their belief that they might be among “the approximately 10,000 American civilians on whom [the Central Intelligence Agency (CIA)] had concededly maintained files,” sought from the CIA “any file you may have on me.”4 The Agency responded that although it did not have a “file” on either appellant it had located several documents that mentioned each of them. The CIA refused to release these documents, however, claiming they were exempt from disclosure under Exemptions 1 and 3 of the FOIA,
The letter to appellant Schaap illustrates the lack of specificity in the Agency‘s response:
The Agency does not have a file on you. A search of various indices has located eight Agency items which appear to pertain to you. Seven of these documents, which reference your foreign travel and association with other individuals, are classified properly and/or they contain information the disclosure of which would divulge intelligence sources and methods. Therefore, they cannot be released to you in accord with exemptions (b)(1) and (b)(3) of the Freedom of Information Act. One item is an inter-agency memorandum which is exempt under (b)(3) and (b)(5).
Letter from Young to Schaap, supra, at JA 18.
I. THE EVOLUTION OF FOIA REVIEW
In 1966 Congress amended the Administrative Procedure Act (APA) to increase disclosure of government information to the American people.10 Congress had determined that the previous “public information” section of the APA,
The Freedom of Information Act sought to remedy these defects by transferring from the agencies to Congress and the courts primary responsibility for determining whether information could be withheld. Several specific provisions accomplished this transfer: (1) agencies were required to disclose all records that did not come within one of nine explicit exemptions written by Congress;11 (2) courts were given authority to review de novo any denial of access “in order that the ultimate decision as to to the propriety of the agency‘s action is made by the court and [to] prevent [review] from becoming meaningless judicial sanctioning of agency discretion“;12 and (3) in any review proceeding an agency denying disclosure, rather than enjoying a presumption of correctness, was saddled with the burden of proving that its action was proper.13
A. Restrictive Interpretation and Corrective Legislation: Mink and Robinson
The ambitious scheme established by the FOIA was not without its difficulties. The agencies were quick to discover ambiguities in the language of the nine exclusive exemptions, and courts have often proved too sensitive to the potential burdens of de novo review and to their alleged lack of expertise. Indeed, in two of its first FOIA cases the Supreme Court interpreted the two exemptions relied on by the District Court in this case in ways that restricted the reviewing court‘s role and preserved the discretion of the withholding agency. In each case Congress soon reversed the Court‘s interpretation by legislation.
First, in EPA v. Mink, 410 U.S. 73, 81-84, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), the Court held that when an agency relied on Exemption 1, which at that time covered matters “specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy,”
The second Supreme Court case involved Exemption 3, which originally exempted matters “specifically exempted from disclosure by statute.”
the information should be withheld.16 As noted above, congressional concern about excessive agency discretion to withhold information had been a prime stimulus to enactment of the FOIA. Alarmed by the threat to the purposes of the FOIA created by the Robertson decision, Congress acted within 15 months to overrule the case by legislation.17 Exemption 3 now authorizes nondisclosure of matters “specifically exempted from disclosure by statute * * * * provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.”
B. Creative Judicial Responses: Vaughn v. Rosen
Not all judicial decisions involving the FOIA have suffered from the restrictive attitude apparent in the aspects of the Mink and Robertson cases overruled by Congress.18 Courts have sometimes shown a willingness to assume the initiative in developing creative solutions to the problems associated with de novo review of refusals to disclose information. In Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (1973), for example, this court acknowledged the difficulty of reviewing the record before it, but then attempted to do something to correct the situation. The Civil Service Commission had withheld documents totalling “many hundreds of pages” and had supported its action with an affida-
This court noted the irony that, while the FOIA placed an “overwhelming emphasis upon disclosure,” the facts relevant to judicial review of nondisclosure were totally within the control of the party refusing disclosure. Id., 157 U.S. App. D.C. at 343, 484 F.2d at 823. Even an in camera inspection by the court is an ex parte proceeding conducted without the adversarial assistance of the party seeking disclosure.20 Thus, although the statute specified that the agencies were to bear the burden of sustaining their refusals to disclose requested materials, the greatest burden was in practice being placed on the courts.
To bring practice more into line with the statutory mandate, this court initiated procedures designed to shift the burden of justifying nondisclosure back to the agencies and to give the party seeking disclosure a greater chance to participate in the review proceeding. The court took its cue from a portion of the Supreme Court‘s Mink opinion that was not overruled by Congress—the portion discussing how a court should proceed when there was a factual dispute concerning the nature of the materials being withheld.21 “Expanding” on the Supreme Court‘s “outline,” the court established the following procedures: (1) A requirement that the agency submit a “relatively detailed analysis [of the material withheld] in manageable segments.” “[C]onclusory and generalized allegations of exemptions” would no longer be accepted by reviewing courts, 157 U.S. App. D.C. at 346, 484 F.2d at 826. (2) “[A]n indexing system [that] would subdivide the document under consideration into manageable parts cross-referenced to the relevant portion of the Government‘s justification.” Id., 157 U.S. App. D.C. at 347, 484 F.2d at 827. This index would allow the District Court and opposing counsel to locate specific areas of dispute for further examination and would be an indispensable aid to the Court of Appeals reviewing the District Court‘s decision. (3) “[A]dequate adversary testing,” to be insured by opposing counsel‘s having the information included in the agency‘s detailed and indexed justification and by in camera inspection, guided by the detailed affidavit and using special masters appointed by the court when the burden was espe-
The Vaughn procedures were an innovative step toward making de novo review a reality, but even this court has recognized that they are no panacea. See, e. g., Cuneo v. Schlesinger, 157 U.S. App. D.C. 368, 374, 484 F.2d 1086, 1092 (1973) (Bazelon, J., concurring). Commentators generally have applauded the decision,23 but some have raised troublesome questions about whether the new procedures would be enough to achieve the “adversariness” and real de novo review required by the FOIA.24
C. Special Problems in Cases Involving National Security
While achieving the goals of the FOIA may well demand more than Vaughn requires, implementing even the minimal procedures outlined in Vaughn has proven difficult in cases that, like the one before us, involved claims of danger to national security. Persistent controversy has surrounded the question whether FOIA cases involving national security claims should be treated differently from other FOIA cases. Arguments have focused on the proper standard of judicial review and on the use of certain techniques—primarily in camera inspection—in the review process.
The Supreme Court sought to resolve this controversy when it held in Mink that courts could not question the substantive propriety of agency classifications in suits involving refusals to disclose based on Exemption 1 and that in camera inspection was therefore improper in such cases.25 In response to the Mink case, however, Congress specifically considered the standard of review and the propriety of in camera inspection in cases involving national security issues (primarily Exemption 1 cases) when it developed and passed the 1974 FOIA amendments. Provisions concerning these issues were a major focus not only of congressional debate on these amendments, but also of President Ford‘s veto message. As noted above,26 Congress overrode the President‘s veto and expressly provided for de novo review and permissive in camera examination in all FOIA cases, including those involving national security claims, thus rejecting the Nixon and Ford Administrations’ attempts to salvage the Mink case‘s special limits on the scope and methods of review in national security cases. Nevertheless, some recent court decisions reveal a confusion over several passages in the legislative history of the 1974 amendments,27
1. Legislative History of the 1974 FOIA Amendments
During committee consideration of the legislation that was to become the 1974 FOIA amendments, the Nixon Administration, asserting that the courts lacked the expertise to determine what information should be classified, vigorously resisted any attempt to overrule the restrictive holding of the Mink case.28 The House Committee on Government Operations nevertheless refused to accord special treatment to national security cases and reported a bill providing for de novo review and permissive in camera inspection in all FOIA cases.29 The full House overwhelmingly approved the reported bill with only a minor technical amendment.30
The bill reported by the Senate Committee on the Judiciary, on the other hand, reflected to some degree the influence of the Administration‘s arguments. It provided:
(ii) In determining whether a document is in fact specifically required by an Executive order or statute to be kept secret in the interest of national defense or foreign policy, * * * [i]f there has been filed in the record an affidavit by the head of the agency certifying that he has personally examined the documents withheld and has determined after such examination that they should be withheld under the criteria established by statute or Executive order referred to in subsection (b)(1) of this section, the court shall sustain such withholding unless, following its in camera examination, it finds the withholding is without a reasonable basis under such criteria.
views from the legislative history on the scope and methods of review in national security FOIA cases that had been expressly rejected in the actual statute passed over President Ford‘s veto. See Weissman v. CIA, D.C. Cir. No. 76-1566, decided Jan. 6, 1977, slip op. at 10-11 & n.10. The opinion had to be amended to correct this confusion. See Order, D.C. Cir. No. 76-1566, April 4, 1977. Unfortunately, some courts, including the District Court in this case, relied on the original version of Weissman before the amendments were published. See text and note at note 82 infra. The opinion of the First Circuit in Bell v. United States, 563 F.2d 484 (1st Cir. 1977), also indicates some confusion over the legislative history of the 1974 amendments. The First Circuit relied heavily on a portion of Senate Report No. 93-854, 93d Cong., 2d Sess. 16 (1974), that describes a provision in the Senate bill as reported from committee that was later deleted on the floor of the Senate because it was considered too deferential to the agencies. See 563 F.2d at 487; text and notes at notes 31-33 infra. The result in Bell may be justified by the particular circumstances of that case (a suit to release over 500,000 documents gathered by the Allied Intelligence Service in World War II under the ULTRA program which the Secretary of Defense had exempted from the automatic declassification schedule pending completion of a specific program designed to review individually the classifications of all the documents by 1980). To the extent that any language in Bell is inconsistent with the approach outlined in this opinion, I must respectfully decline to depart from my understanding of the unambiguous mandate of Congress.
S. 2543, 93d Cong., 2d Sess., § b(2), reprinted in Staffs of Senate Committee on the Judiciary and House Committee on Government Operations, Freedom of Information Act and Amendments of 1974 (P.L. 93-502): Source Book: Legislative History, Texts, and Other Documents (Committee Print 1975) (hereinafter cited as Source Book), at 282 (emphasis added). The Committee Report accompanying the bill explained:
This standard of review does not allow the court to substitute its judgment for that of the agency—as under a de novo review—but neither does it require the court to defer to the discretion of the agency, even if it finds the determination not arbitrary or capricious. Only if the court finds the withholding to be without a reasonable basis under the applicable Executive order or statute may it order the documents released.
S.Rep. No. 93-854, 93d Cong., 2d Sess. (1974), reprinted in Source Book, supra, at 188.
This partial victory for the Administration‘s viewpoint was short-lived. When the bill reported by the Committee reached the Senate floor, Senator Muskie, challenging the “outworn myth that only those in possession of military and diplomatic confidences can have the expertise to decide with whom and when to share their knowledge[,]” introduced an amendment to delete the provision establishing a special “reasonable basis” standard of judicial review in national security cases.31 The Muskie amendment passed easily32 despite continued arguments from Administration supporters that requiring de novo review with
After the Senate had passed the amended version of its bill, the Senate and House bills were referred to a Conference Committee to iron out the differences. During the Conference deliberations. President Nixon resigned and was succeeded by President Ford, who wrote to the Conference Committee to express his reservations about certain aspects of the proposed legislation. President Ford objected in particular to placing the burden on the government to justify its classification of documents in a de novo proceeding. His proposed alternative indicated the areas of controversy:
I could accept a provision with an express presumption that the classification was proper and with in camera judicial review only after a review of the evidence did not indicate that the matter had been reasonably classified in the interests of our national security. Following this review, the court could then disclose the document if it finds the classification to have been arbitrary, capricious, or without a reasonable basis. * * *
Letter from President Gerald R. Ford to Honorable William S. Moorhead, August 20, 1974, reprinted in Source Book, supra, at 380.
The Conference Committee did not adopt the President‘s proposal. Instead it followed the language of the Senate bill pro-
The conference substitute follows the Senate amendment, providing that in determining de novo whether agency records have been properly withheld, the court may examine records in camera in making its determination under any of the nine categories of exemptions under
section 552(b) of the law. In Environmental Protection Agency v. Mink, et al., 410 U.S. 73 [93 S.Ct. 827, 35 L.Ed.2d 119] (1973), the Supreme Court ruled that in camera inspection of documents withheld undersection 552(b)(1) of the law, authorizing the withholding of classified information, would ordinarily be precluded in Freedom of Information cases, unless Congress directed otherwise. H.R. 12741 amends the present law to permit such in camera examination at the discretion of the court. While in camera examination need not be automatic, in many situations it will plainly be necessary and appropriate. Before the court orders in camera inspection, the Government should be given the opportunity to establish by means of testimony or detailed affidavits that the documents are clearly exempt from disclosure. The burden remains on the Government under this law.
S.Rep. No. 1200, supra, at 9.
With regard to Exemption 1 in particular, the Conference combined the language of the House and Senate bills to ensure that “[w]hen linked with the authority conferred upon the Federal courts in this conference substitute for in camera examination of contested records as part of their de novo determination in Freedom of Information cases, [the new language of Exemption 1] clarifies Congressional intent to override the Supreme Court‘s holding in the case of E.P.A. v. Mink, et al., supra, with respect to in camera review of classified documents.” Id. at 12. Then, without shifting the burden of proof or weakening the requirement of de novo review or curtailing the propriety of in camera examination, the Conference Report added the following qualification with respect to judicial review in cases involving national defense and foreign policy matters:
However, the conferees recognize that the Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects [sic] might occur as a result of public disclosure of a particular classified record. Accordingly, the conferees expect that Federal courts, in making de novo determinations in
section 552(b)(1) cases under the Freedom of Information law, will accord substantial weight to an agency‘s affidavit concerning the details of the classified status of the disputed record.
Id.
This qualification was apparently designed to allay the fears expressed by President Ford, but the President was unwilling to accept legislation that still clearly placed the burden on the government under a de novo standard of judicial review. The President therefore vetoed the bill after both Houses of Congress had passed the Conference version.34 In his veto message the President offered a final proposal, quite similar to the bill originally reported by the Senate Committee on the Judiciary and rejected by the full Senate:
I propose, therefore, that where classified documents are requested the courts could review the classification, but would have to uphold the classification if there is a reasonable basis to support it. In determining the reasonableness of the classification, the courts would consider
Message from the President of the United States Vetoing H.R. 12471, H.Doc. No. 93-983, 93d Cong., 2d Sess., reprinted in Source Book, supra, at 484.
The debate on whether to override the President‘s veto rehearsed for one last time the arguments over the need for and the danger of de novo judicial review in cases involving issues of national security. In the wake of Watergate the sentiments of both Houses of Congress were perhaps most succinctly summarized by Senator Baker:
In short, recent experience indicates that the Federal Government exhibits a proclivity for overclassification of information, especially that which is embarrassing or incriminating; and I believe that this trend would continue if judicial review of classified documents applied a presumption of validity to the classification as recommended by the President. De novo judicial determination based on in camera inspection of classified documents—as provided by the Freedom of Information Act amendments passed by the Congress—insures confidentiality for genuine military, intelligence, and foreign policy information while allowing citizens, scholars, and perhaps even Congress access to information which should be in the public domain.
In balancing the minimal risks that a Federal judge might disclose legitimate national security information against the potential for mischief and criminal activity under the cloak of secrecy. I must conclude that a fully informed citizenry provides the most secure protection for democracy.
Source Book, supra, at 460-461.35 The House overrode the President‘s veto by a vote of 371 to 31;36 the Senate followed by a vote of 65 to 27.37
2. Basic Principles Governing Judicial Review of FOIA Cases Involving National Security Claims
The basic thrust of the amendments is clear on the face of the bills passed by both Houses of Congress and the statute passed over the President‘s veto: claims of exemption from
a. De Novo Review With the Burden on the Government and Permissive In Camera Inspection.
The appropriate standard of review was at the core of the controversy between Con-
The statutory requirement that review be de novo is intended to “prevent it from becoming meaningless judicial sanctioning of agency discretion.” S.Rep. No. 813, supra, at 8. Congress feared more than “bad faith” in the exercise of agency discretion to withhold government information. Even “good faith” interpretations by an agency are likely to suffer from the bias of the agency, particularly when the agency is as zealous as the CIA has been in its responsibility to protect “national security.”40 Being aware of the dangers of relying too much on agency “expertise,” Congress required the courts to take a fresh look at decisions against disclosure as a check against both intentional misrepresentations and inherent biases.
In order to take the “fresh look” required for de novo review, a District Court must not only be aware of the relevant provisions in statutes and Executive orders, but must also know enough about the specific factual situation involved to enable it to decide for itself whether the materials are properly exempt from disclosure. The government, which bears the burden of proving that any exemption applies, can provide the District Court with the information necessary for its de novo determination in several ways. The Conference Report, in a passage responding in part to President Ford‘s objections, suggests that an agency should first be given “the opportunity to establish by means of testimony or detailed affidavits that the documents are clearly exempt from disclosure.”41 These methods of supplying the relevant data also comport with the concern of this court in Vaughn to get as much information as possible into the public record in order to aid the adversary proc-
By expressly endorsing in camera examination as a technique in the de novo review of all claimed exemptions, Congress rejected the various arguments that had been raised against this technique in the hearings and during the debates. The most frequently voiced objection to in camera inspection was the familiar argument against de novo review mentioned above: that judges lack the knowledge and expertise to evaluate the effects of releasing allegedly sensitive documents. Congress responded to this concern by noting that the reviewing court would have the benefit of the agency‘s affidavits—possibly including additional in camera affidavits “in some cases of a particularly sensitive nature“—when making its in camera examination44 and by expressing its expectation that the reviewing court would accord “substantial weight” to agency affidavits reflecting special knowledge or expertise.45 Congress steadfastly refused, however, to modify the language of the statute endorsing permissive in camera inspection in national security cases because of a fear of judicial incompetence that it considered “unfounded.”46
Opponents of in camera examination also warned that court personnel and procedures presented a high risk of unauthorized leaks. In response to this fear the Senate Report suggested initiation of reasonable precautions, including “limiting access by court personnel to those obtaining appropriate security clearances” or appointing a “special master who may be required by the court to obtain such security clearance as had been previously required for access to the contested documents.”47
Congress likewise recognized and encouraged the development of flexible responses to eliminate a third objection to in camera examination: the potential burden on the courts. The Senate Report approved Vaughn‘s suggestion that special masters be appointed in cases involving numerous documents.48 Courts have also avoided the
Finally, in camera examination has been criticized because it is conducted ex parte, without the benefit of an adversarial proceeding. The Senate Report recognized this deficiency and encouraged such procedures as requiring Vaughn indices and affidavits in addition to in camera examination and even allowing plaintiffs’ counsel to have access to the contested documents in camera under special agreement “whenever possible.”50 Notably, the party usually opposing in camera inspection is not the plaintiff seeking disclosure, but, as in this case, the agency seeking suppression—even from the court. Since the purpose of in camera inspection is to allow the court to determine the facts de novo without revealing the requested documents to the plaintiff, as a true adversary proceeding would require, it is difficult to imagine a legitimate reason for the agencies’ resistance to this technique that is essentially designed for their benefit. It goes without saying that covering up an agency‘s “mistakes” is not an acceptable reason for denying disclosure under the
Congress’ resistance to these objections and its encouragement of flexible responses to overcome them reflect its recognition that the possibility of an in camera inspection is “in many situations” essential to de novo review and is an indispensable incentive to assure the accuracy of agency affidavits and testimony.51
Although Congress refused to alter the statutory provisions calling for de novo review with the burden on the government and permissive in camera inspection, the Conference Committee did include language in its report designed to assuage the President‘s “unfounded”52 fears without compromising on these fundamental issues. These passages are a legitimate part of the legislative history and should influence the conduct of the courts to the extent that they are compatible with the fundamental directions on the face of the statute itself. One such passage, providing that agencies should be given the chance to prove that requested materials are “clearly exempt” using detailed affidavits or testimony, has already been discussed.53
A second passage, located in a portion of the Report referring to Exemption 1, expresses the Committee‘s recognition that agencies “responsible for national defense and foreign policy matters have unique insights into what adverse effects might occur as a result of public disclosure of a particular classified record” and the Committee‘s expectation “that Federal courts, in making de novo determinations in
As a practical matter, I cannot imagine that any Federal judge would throw open the gates of the Nation‘s classified secrets, or that they would substitute their judgment for that of an agency head without carefully weighing all the evidence in the arguments presented by both sides.
Source Book, supra, at 449. This logical interpretation of the Conference Report passage is perfectly consistent with the actual words of the 1974 amendments.
It is important to recognize the limits, as well as the value, of this language in the Conference Report. Stretching the Conference Committee‘s recognition of the “substantial weight” deserved by demonstrated expertise and knowledge into a broad presumption favoring all agency affidavits in national security cases would contradict the clear provisions of the statute and would render meaningless Congress’ obvious intent in passing these provisions over the President‘s specific objections. An affidavit explaining in detail the factors about particular material that have convinced the agency that the material should be classified should and will be quite influential with a reviewing court. On the other hand, an affidavit stating only in general or conclusory terms why the agency in its wisdom has determined that the criteria for nondisclosure are met should not and cannot be accorded “substantial weight” in a de novo proceeding. To substitute a presumption favoring conclusory agency affidavits for the courts’ responsibility to make a de novo determination with the burden on the government would repeal the very aspects of the 1974 amendments that made it necessary for the Congress to override the President‘s veto.
3. Summary
Congress has already reversed overly restrictive judicial interpretations of the
D. Outline of the Review Process
My examination of the provisions and purposes of the
1. Requirements of Index and Detailed Affidavits
As outlined in Vaughn, the court should require the agency to support its claim of exemption with (1) an index dividing the material into manageable segments and identifying what parts of it are withheld under which exemptions, and (2) detailed affidavits describing the matters withheld and giving any other evidence relevant to the particular exemptions claimed. To enhance the adversary process, the affidavits should be as detailed as possible without revealing the information claimed to be exempt.56 This requirement may be modified, but only under extreme circumstances.57
2. Questions for the Court
Once the index and affidavits have been submitted, the court must undertake several different types of inquiry.
a. The Legal Issues.
The court must first determine the legal criteria for applying the exemption claimed by the agency. The words of the statute and the relevant precedents establish the kinds of matters that are exempt and any necessary procedural steps that are required for exemption. This aspect of the court‘s inquiry is fully open and adversarial.
The court must then determine the facts of the particular case: the nature of the matters withheld and other relevant issues, such as the purposes for which the information was created,58 whether requisite procedures were followed,59 and the possible effects of disclosure.60 Deciding these issues may be difficult because of the absence of normal adversary procedures. The court may rely on affidavits and testimony, whose usefulness is directly related to their detail; discovery, which may be particularly useful in determining whether requisite procedures have been followed; and in camera inspection. The court‘s task will be easiest where the parties stipulate to the relevant facts.61 Adequately detailed affidavits and opportunities for discovery may encourage such stipulations. When factual issues are disputed, the burden of proof is on the government. If the burden cannot be clearly met by detailed affidavits and testimony, or when there is any indication of bad faith on the part of the agency, the court may not, in my view, sustain the agency‘s action without conducting an in camera inspection of the matters withheld. A court may appoint a special master or inspect portions of the record at random when the burden of inspection is significant.
c. Application of Law to Facts.
Finally, the court must decide whether the claimed exemption applies on the facts of the particular case. The statutory language and relevant precedents will often provide a clear answer, but, inevitably, some cases will present ambiguities that must be resolved. When such ambiguity is present courts should be guided by
With this framework in mind, I now turn to the particular circumstances of this case.
II. REVIEW IN THIS CASE
A. Adequacy of Index and Affidavits
An examination of the record in this case immediately reveals a problem: the CIA‘s affidavits are ambiguous about what exemptions apply to what portions of the withheld information. The affidavits specify that ten documents are involved, give a brief description of each document, and enumerate the exemptions pursuant to which each document has been withheld.64 One affidavit also explains the rationales of the exemptions relied on and describes the general types of materials for which each exemption is claimed.65 The affidavits do not, however, indicate what portions of each document are allegedly covered by each of the multiple exemptions listed as grounds for nondisclosure. For example, the affidavits assert that Document 2 has been withheld pursuant to Exemptions 1, 3, and 6; but the affidavits fail to specify whether any one of these three exemptions covers the whole document or whether, on the contrary, each exemption covers different parts and all three exemptions are thus necessary to justify withholding the entire document.66 The Agency‘s description of the document and its reliance on multiple exemptions based on quite different criteria suggest that the latter situation is more likely.67 The same problem infects the Agency‘s affidavits with respect to at least nine of the ten documents in this case.68
As the court‘s per curiam opinion briefly recognizes,72 the District Court‘s opinion does not reflect an adequate examination of either the law or the facts relevant to the CIA‘s claim based on Exemption 1. As a result of congressional amendments designed to override the restrictive holding of the Mink case, Exemption 1 now applies only if the District Court determines that (1) the material withheld is properly classifiable under the substantive criteria set forth in the relevant Executive order, and (2) the material has in fact been properly classified according to procedures outlined in the Executive order.73 The substantive and procedural criteria relevant to this case are established by Executive Order 11652 and a National Security Council directive of May 17, 1972.74 The threshold substantive test for determining whether material may be classified under Executive Order 11652 is “whether its unauthorized disclosure could reasonably be expected to cause * * * damage to the national security.” Procedural requirements cover such matters as the authority and identification of the original classifier, the proper time for classification, the conspicuous marking of classified material, the identification and segregation of nonclassifiable segments of classified material, and mandatory review and declassification at set time intervals.75 Failure to comply with proper procedures, just like failure to employ the proper substantive standard, can make Exemption 1 inapplicable. See Halperin v. Department of State, 184 U.S.App.D.C. 124, 565 F.2d 699 (1977).
In this case the government submitted affidavits of Eloise Page, Chief of the Operations Staff of the Directorate of Operations of the CIA, who swore that she had “determined that some of these documents, or portions thereof, may not be released because * * * [t]hey are currently properly classified pursuant to the criteria and procedures set forth in Executive Order 11652 * * *.” Affidavit of Eloise Page, August 13, 1976, JA 31. After describing in general terms some of the major substantive and procedural requirements for application of Exemption 1, Ms. Page asserted:
5. The determination was made by me that, in the case of each document, or portion thereof, which is withheld because it is currently and properly classified, release of that document, or portion thereof, at a minimum, could reasonably be expected to cause damage to the national security. In each case a document determined to contain classified information bears the appropriate markings on its face to evidence its classified status.
Id. at 33. On the basis of this statement and some general description of the types of information contained in the documents,76 the District Court concluded that “[t]he affidavits on file herein clearly show that the documents in question were properly classified under Executive Order 11,652,” and sustained the Agency‘s withholding of all the information on the basis of Exemption 1 alone.77
Second, appellants emphasize that summary judgment was granted before any discovery took place. Interrogatories and depositions are especially important in a case where one party has an effective monopoly on the relevant information. Discovery may be particularly useful to appellants in testing whether the procedural requirements of Exemption 1 have been met in this case.80
Finally, amicus draws attention to the conclusory nature of the affidavit, which often merely parrots the language of the statute or Executive order. According to amicus, the CIA has developed “standard form” affidavits to handle cases such as this one. The CIA replies that its standard language reflects the typical nature of
Faced with the conclusory affidavits produced in this case, appellants requested in camera examination, but the District Court denied appellants’ motion, citing this court‘s opinion in Weissman v. CIA, 184 U.S.App.D.C. 117, 565 F.2d 692 (1977). The version of the Weissman opinion relied on by the District Court was later amended after a motion for rehearing. Order, D.C.Cir. No. 76-1566, April 4, 1977. Passages in the original version that suffered from an excessive deference to agency “expertise” may explain the District Court‘s unacceptably deferential approach to this case.82 Today‘s per curiam opinion reaffirms Congress’ intent to require independent de novo review, per curiam, 190 U.S.App.D.C. at —, 587 F.2d at 1193-1194, and clearly holds that there is no presumption against in camera examination in national security cases, id., 190 U.S.App.D.C. at —, 587 F.2d at 1194-1195, thus reducing the likelihood of excessive deference in this case on remand and in future cases.
The per curiam also finds the District Court‘s approach to Exemption 3 unsatisfactory. Per curiam, 190 U.S.App.D.C. at —, 587 F.2d at 1196. Following its amendment in 1976 to overrule the result in Robertson, Exemption 3 applies to matters that are “specifically exempted from disclosure by statute,” but only if the exempting statute either leaves no room for agency discretion to determine whether the information is to be disclosed or establishes effective guidelines for agency discretion by specifying “particular criteria for withholding” or “particular types of matters to be withheld.”
Proper judicial review of an Exemption 3 claim involves several steps: (1) determining whether the alleged exempting statute qualifies under Exemption 3 as amended, see American Jewish Congress v. Kreps, 187 U.S.App.D.C. 413, 574 F.2d 624 (1978), (2) determining what matters the exempting statute covers—what substantive and procedural requirements must be met before it permits nondisclosure, and (3) determining the facts of the particular case and whether the specific information withheld qualifies for nondisclosure under the alleged exempting statute. As with review of other claimed exemptions, the courts must consider each of these questions de novo. See Brandon v. Eckard, 187 U.S.App.D.C. 28, 32-35, 569 F.2d 683, 687-690 (1977); S.Rep. No. 1200, supra, at 8-9.
The CIA‘s Exemption 3 claim in this case is based on the applicability of
Since the District Court‘s review of the CIA‘s affidavits in this case was based on the pre-amendment language of Exemption 3, it understandably does not demonstrate the kind of “hard look” necessary to assure adherence to congressional purpose. The District Court‘s extreme deference to the Agency‘s interpretation of what constitutes an “intelligence source or method” is evident in such passages as the following:
Affidavits on file herein state that documents 2 through 9 contain information regarding intelligence sources and methods. There has been no credible challenge to the veracity of these statements and nothing appears to raise the issue of bad faith. The Court therefore concludes that release of this information can reasonably be expected to lead to unauthorized disclosure of intelligence sources and methods, and that the Agency may rely on exemption 3 and
50 U.S.C. § 403(d)(3) to withhold this information.
Ray v. Bush, Civil Action No. 76-0903 (D.D.C. Jan. 25, 1977), at JA 66-67. This is hardly the de novo review mandated by Congress, with the government having the burden of proof.
The District Court denied appellants’ motion for in camera inspection with the comment that “[w]ith respect to documents withheld under exemption 3, in camera inspection is seldom, if ever, necessary or appropriate.” Id. at JA 68. The court apparently based this conclusion on language in cases under the pre-amendment version of Exemption 3 to the effect that in review of an Exemption 3 claim “the only question ‘to be determined in a district court‘s de novo inquiry is the factual existence of [a specific statute of the kind described in Exemption 3], regardless of how unwise, self-protective, or inadvertent the enactment might be.‘”86
This court today definitively rejects this position as inconsistent with the language and legislative history of the
An effective de novo review—using in camera inspection of material claimed to reveal “intelligence sources and methods” when appropriate—will achieve the goal Congress intended in amending Exemption 3. Courts will be able to insure that agencies do not impermissibly expand by unreviewed interpretations the “particular types of matters” Congress has exempted from disclosure. Although precedents detailing what may be withheld to protect intelligence sources or methods may not be possible, courts will be able to declare in published opinions what is not an acceptable interpretation of “protecting intelligence sources and methods.”89
D. Exemptions 6 and 7(F)
The CIA‘s affidavit also relied on Exemptions 6 and 7(F) to withhold certain parts of the documents sought by appellants.90 The Agency relied on Exemption 6, which exempts from disclosure “personnel and medical files and similar files the disclosure of which would constitute a clearly unwar-
As mentioned above, the District Court failed to reach these claims because it misinterpreted the Agency‘s ambiguous affidavit. The court‘s per curiam opinion remands for a more specific affidavit and recognizes that once the Agency has specified which material is allegedly exempt under which exemptions the District Court may well have to consider Exemptions 6 and 7. Per curiam, 190 U.S.App.D.C. at —, 587 F.2d at 1197.
In ruling on an Exemption 6 claim, a court must determine de novo (1) whether the material requested falls within the type of matter covered by the exemption, i. e., “personnel and medical files and similar files,” and (2) whether disclosure would constitute a “clearly unwarranted invasion of personal privacy.” Unless the documents in question are indeed “personnel and medical files and similar files,” the latter inquiry becomes unnecessary. “Personnel” files, as the Supreme Court wrote in Department of the Air Force v. Rose, supra, ordinarily contain information such as “where [an individual] was born, the names of his parents, where he has lived from time to time, his high school or other school records, results of examinations, evaluations of his work performance.” 425 U.S. at 377, 96 S.Ct. at 1606. In that case the Court also provided an indication of what is intended by “similar” files, as it held Air Force Academy case summaries “relat[ing] to the discipline of cadet personnel” to be similar to personnel files in the sense intended by Congress in Exemption 6. Id. at 376-377, 96 S.Ct. at 1606. Moreover, the Court has stated, also in Rose, that it is “only the identifying connection to the individual that casts the personnel, medical, and similar files within the protection of [the] sixth exemption.” Id. at 371, 96 S.Ct. at 1604 (quoting the District Court in Rose). If material is found to fall within the language “personnel and medical files and similar files,” the second inquiry required by Exemption 6—whether disclosure would constitute a “clearly unwarranted invasion of personal privacy“—should be undertaken. This inquiry proceeds on a case-by-case basis, balancing the privacy interests of the individual against the public‘s right to governmental information. Id. at 370-382, 96 S.Ct. 1592; Getman v. NLRB, 146 U.S.App.D.C. 209, 212-216, 450 F.2d 670, 673-677 (1971).
Consideration of an Exemption 7(F) claim likewise requires a court to determine de novo (1) whether the material involved consists of “investigatory records compiled for law enforcement purposes”91 (emphasis added) and (2) whether its production would “endanger the life or physical safety of law enforcement personnel.” The District Court, of course, has not yet addressed any of these issues. If on remand it finds that both conditions for Exemption 6 or 7(F) are met with regard to any of the material for which these exemptions have been claimed, the District Court must also, as the per curiam indicates, per curiam, 190 U.S.App.D.C. at —, 587 F.2d at 1197, assure itself that any segregable material is released.
III. CONCLUSION
Effective de novo review by the courts is essential to assure that government agencies comply with Congress’ commitment to compel disclosure of information that is being “withheld only to cover up embarrassing mistakes or irregularities * * *.”92 My opinion in this case is an effort to consolidate some of the wisdom of prior cases and the legislative history regarding what courts must do to make de novo review a reality. The evolution of the review process must continue; additional creative innovations by counsel, the courts, and Congress are necessary to solve the problems that persist. For the time being, however, the courts can at least see to it that the progress that has already been made is not lost.
See EPA v. Mink, 410 U.S. at 92-94, 93 S.Ct. at 835; note 13 supra. At the time this court decided Vaughn Congress had not yet enacted the 1974 amendments to the FOIA, and both aspects of the Mink case were still good law.The bill provides that a court cannot reverse an agency even though it finds it was wrong in classifying the document as being one affecting national security, unless it further finds that the agency was not only wrong, but also unreasonably wrong.
* * * * * *
Why not let the judge determine that question, because national security is information that affects national defense and our dealings with foreign countries? That is all it amounts to.
If a judge does not have enough sense to make that kind of judgment and determine the matter, he ought not to be a judge * * *.
Id. at 17030.The conflict on this particular point boils down to one basic concern—trust in the judicial system to handle highly sensitive material.
* * * * * * * * *
I cannot understand why we should trust a Federal judge to sort out valid from invalid claims of executive privilege in litigation involving criminal conduct, but not trust him or his colleagues to make the same unfettered judgments in matters allegedly connected to the conduct of foreign policy.
As a practical matter, I cannot imagine that any Federal judge would throw open the gates of the Nation‘s classified secrets, or that they would substitute their judgment for that of an agency head without carefully weighing all the evidence in the arguments presented by both sides.
On the contrary, if we construct [constrict] the manner in which courts perform this vital review function, we make the classifiers themselves privileged officials, immune from the accountability necessary for Government to function smoothly.
Source Book, supra note 28, at 449. See also id. at 437-438, 459-460 (remarks of Sen. Kennedy), 466-467 (remarks of Sen. Cranston), 404-406 (remarks of Rep. Moorhead), 413 (remarks of Rep. Reid).Source Book, supra note 28, at 460. See also Zweibon v. Mitchell, 170 U.S.App.D.C. 1, 48-50, 516 F.2d 594, 641-643 (1975) (en banc), cert. denied, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976).We cannot accept the Government‘s argument that internal security matters are too subtle and complex for judicial evaluation. Courts regularly deal with the most difficult issues of our society. There is no reason to believe that federal judges will be insensitive to or uncomprehending of the issues involved in domestic security cases.
This is important:
If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probable cause for surveillance.
Another recent case also underscores the vital role that the threat of in camera inspection can play, perhaps especially with respect to the CIA. In that case, Goland v. CIA (D.C.Cir. No. 76-1800, decided May 23, 1978), plaintiffs “requested documents from the [CIA] relating to the legislative history of the Agency‘s organic statutes, slip op. at 2.” Not convinced of the thoroughness with which the Agency had searched for responsive documents, and questioning the Agency‘s refusal to make available concededly responsive materials, plaintiffs brought suit under the
Supplemental Affidavit of Eloise Page, supra note 8, at JA 62-63.This document is a three-page memorandum the subject of which is “Rennie Davis and Friends.” It is essentially the debriefing report of a sensitive intelligence source. The majority of the information concerns individuals other than the plaintiffs.
This document has been denied in its entirety, primarily to protect intelligence sources and methods since the release of any meaningful portion would disclose the identity of the source, and further, to protect cryptonyms, names of CIA personnel and CIA organizational data. Thus exemptions (b)(1), (b)(3) and (b)(6) apply.
Id. at JA. The Agency released most of Document 1, deleting only “the location of CIA overseas installations, cryptonyms, a pseudonym and CIA organizational data” on the basis of Exemptions 1 and 3. Id. at JA 62.These documents are one-page cables from an overseas CIA installation which advise Headquarters of the receipt of documents and information from a foreign intelligence service and which concern the plaintiffs and other individuals.
They are denied in their entirety pursuant to Freedom of Information Act exemptions (b)(1), (b)(3) and (b)(6).
Supplemental Affidavit of Eloise Page, supra note 8, at JA 63-64.This document consists of a one-page memorandum which transmits a copy of a notebook containing a list of names. This list was secured by the United States Customs Service from an individual at a border checkpoint in a search incident to his arrest for importation of narcotics into the United States. The memorandum was provided to the Plaintiff Schaap with only minor deletions (names of CIA employees, organizational data concerning the CIA, name of a United States Customs Agent). Only that portion of the list containing plaintiff‘s name was provided. Thus exemptions (b)(1), (b)(3), (b)(6) and (b)(7)(F) apply.