*1 al. Cary et John SIMS INTELLIGENCE AGENCY
CENTRAL al., Appellants.
et 79-2203, 79-2554.
Nos. of Appeals, Court
United States
District of Columbia Circuit. May
Argued 29, Sept.
Decided
563 (FOIA).1 response Information Act to a persons for the of and request citizen names who conducted scientific and institutions with or behavioral research under contracts two Agency asserts by funded the disclosure statutory exemptions from Ex- Invoking requirements of the FOIA. 3,2 claims that the re- emption exempted quested “specifically material by of the Na- the terms disclosure” The cites Act.3 also Security tional “personnel which shields similar files the disclosure medical files and clearly constitute a unwar- which would Kimmel, Justice, Dept, of Atty., Michael privacy[.]”4 of personal invasion ranted C., Daniel, Alice Washington, D. with whom applicability denied District Court Gen., Ruff, F. U. S. Atty. Charles C. Asst. exemption to the facts issue either Kopp, Atty., Dept, of Atty., and Robert E. summary judgment appel- granted Justice, C., Washington, D. were on the re- documents.5 In requested lees who brief, appellants. for analysis of the the District Court’s viewing C.,D. Levy, Washington, Paul Alan issue we are presented David Alan B. Morri- whom C. Vladeck and court reached unable to conclude brief, son, C., were on the Washington, D. through application prop- decision appellees. er standard. We therefore remand legal proceedings. With the case for additional WRIGHT, MIKVA, Judge, Chief Before 6, the regard decision of MARKEY,* Circuit Chief Judge, affirmed, although, as ex- District Court is United Court of Customs and Judge, States below, we with the court’s plained differ Appeals. Patent issue analysis presented. of the by the court filed Chief Opinion J. SKELLY WRIGHT.
Judge AND PROCEDURAL I. FACTS BACKGROUND part by filed Chief Opinion dissenting Judge MARKEY. A. Facts WRIGHT,
J. Chief Judge: SKELLY spon- 1966 the Between 1953 and concerning “chemi- extensive research sored appeal two issues presents This concern- cal, ca- radiological materials biological, and ing the Intelli- obligations Central (CIA) opera- in clandestine gence Agency pable employment under' the Freedom * Act, 403(d)(3) 102(d)(3) Sitting designation pursuant § to 28 U.S.C. 50 U.S.C. § (1976). (1976), 293(a) the Director of Cen- which authorizes § Intelligence protect “intelligence sources tral 1. 5 U.S.C. 552 § from unauthorized disclosure^]” and methods persons argues and institu- The CIA 552(b)(3) (1976). Exemption 2. 5 U.S.C. § who the research involved in tions conducted withholding authorizes of documents that con- within case are sources” “specifically exempted cern stat- matters meaning of statute. requirements ute” from the disclosure (quoting provi- FOIA. See 30 infra text 552(b)(6) (1976). 4. 5 U.S.C. full). sion in Court, Security opinion as amended 3. National the District Act ch. 5. The 13, 1979, F.Supp. (1947) (codified reported August Stat. scattered sections (D. U.S.C.). 1979). 5 & relies on D.C. The abuses associated with MKULTRA Code- human behavior.”6 control tions to publicity broad as a result of in- achieved MKULTRA, pro- research CIA’s named published reports by vestigations subprojects undertaken gram included Presi- executive commission chaired Vice records document on a contract basis. CIA congres- Rockefeller10 and a dent Nelson at least 80 institutions participation of *3 by Frank sional committee led Senator Because the CIA and 185 researchers.7 Nonetheless, the details of the Church.11 through a front largely funded MKULTRA At the history mysterious. remain project’s participating of the organization, many in- Helms, Richard direction of then Director apparently had no dividuals and institutions destroyed most of its substantive CIA with the knowledge of their involvement project to the pertaining records Agency.8 depended Investigative efforts therefore documents, of the basis available On 1977, In how- testimony. on oral largely originally conceived appears that the CIA 8,000 ever, pages located some response pos- as a defensive MKULTRA documents related previously undisclosed and the by sible use the Soviets Chinese of fiscal project.12 Consisting mostly to the as instru- biological agents chemical and records, material had and financial the new brainwashing.9 interrogation ments who the search of the archivists escaped Later, however, Agency expanded In addition to purge. conducted the earlier scope program to include efforts subprojects, of 149 general descriptions develop biological agents chemical and per- names of new contained the documents by use the CIA. At least some of the who had contracted sons and institutions subprojects biological tested chemical and undertake research. them by administering
substances to human data, CIA project Upon discovery subjects. subjects Some of the volunteered Turner notified Sen- Director Stansfield for their experimental role. Others were Intelligence, on ate Select Committee unwitting participants, may who never joint hearing at a of the Select he testified have known what happened them. At Intelligence on and the Subcom- Committee persons least two died as the result of Research of mittee on Health and Scientific The experiments. MKULTRA extent on Human Re- the Senate Committee possible damage to the health of others provided subsequently The CIA sources. unknown, remains because CIA records fail summary first with the Joint Committee experimental identities of all of the docu- reports copies disclose and then with Although the CIA’s rec- subjects. ments themselves. Report ings”); Report 6. Final the Commis- the Select Committee to the President Study Operations Respect Governmental Within the United States sion on CIA Activities Activities, 94-755, Intelligence Rep. (1975) (hereinafter S. No. cited as “Rockefel- 226-228 Sess., Cong., (1976) 94th (footnote 2d Book I at 389 Report”). ler Commission omitted) (hereinafter cited Report”). “Church Final Committee Report, supra 10. The Rockefeller Commission 9, completed in 1975. note was appellants 7. Brief for at 10. Report, supra Final 11. The Church Committee appellants 8. Brief for at 10. ' 6, discovery by compiled prior was 9. For an account of MKULTRA research and subject of the documents that are abuses, generally see Church Committee Final present request. documents of the were, Those FOIA 6, 385-422, 471-472, Report, supra note re- however, to the Joint made available printed Appellant in Addendum to Brief for comprised the Senate Se- Senate Committee 12-51; Hearings Joint Before the Senate Com- Intelligence and the Sub- lect Committee Intelligence mittee on and the Subcommittee on Research of committee on Health and Scientific Health and Scientific Research of the Senate on Human Resources. the Senate Committee Resources, “Project Committee on Human MKULTRA, Hearings, supra See note 9. Joint Program CIA’s Research Modification,” Cong., Behavioral (Aug. 95th 1st Sess. appellants at 12. 12. Brief for 1977) (hereinafter cited as “Joint Hear- provided the extent of the information researchers in- participating ords listed them, brought this FOIA action stitutions, requested appellees Admiral Turner (cid:127) as confiden- on November treat the names the Committee has honored this re- tial. Committee April opinion dated a memorandum quest. that the District Court held insti- not, did as asserted tutions and researchers Litigation Request and B. FOIA withholding under qualify they did not consti- follow- 3 because August aIn letter dated the mean- tute sources” within congressional hear- ing the conclusion of 403(d)(3). regard With Sidney ing Dr. M. 50 U.S.C. ings, John C. Sims and court re- argument, and a attorney phy- respectively Wolfe— supplemen- submit that the group quested parties the Nader Public employed sician possible tal on the relevance under the Freedom memoranda request Citizen—filed *4 by the CIA to express implied promises list the names of Information Act for a the confidentiality had the re- who con- maintain of institutions researchers had The pro- whose work it funded.15 the MKULTRA searchers ducted research under to letters to MKUL- court asked the CIA draft gram, any existing as revealed in also soliciting to submis- the researchers and institutions According TRA documents.13 CIA, obligations Agency understandings with the the their sions filed the court On 1979the scope appel- secrecy.16 May to maintain within the documents memorandum, an a total of 265 names: CIA submitted further request lees’ contain a Turner,17and a draft by Admiral 80 and 185 indi- affidavit the names of institutions mailing to receipt of the of form letter suitable for Upon vidual researchers. Agency But the de- contacted each individual researchers. request, document the CIA ,on theo- ask clined assert reliance a contract of the institutions to if would to 80 withholding, and rear- ry identities. as its basis for consent to disclosure of their institu- that involved parallel gued position The made effort com- Agency no should be considered tions and researchers municate with the individual researchers. as matter law. institutions, agreed to disclo- sources” Of the Judge Ob- appel- August In an opinion sure. Their were revealed names both defenses.18 13,1978. rejected has erdorfer lees on June also holding that the prior to its examine the surviv- court adhered permitted appellees to not consti- did MKULTRA institutions researchers ing financial records because the per- “intelligence sources” subprojects undertaken the other tute that “its decision institutions, with their names had shown sons and but words, and re- treat MK-ULTRA institutions deleted. In other CIA continues ‘intelligence sources’ under to withhold the names of the research searchers application 403(d)(3) an overbroad authorize re- is not institutions declined term, susceptible administra- as well as the too lease of their identities names of the pass muster under of all list- tive discretion [FOIA of the individual researchers 19 Regarding Exemp- (b)(3).” Exemption] ed in files. Dissatisfied with MKULTRA Appendix imposes opinion printed Although in the 13. no burden of 14. The FOIA (App.) justification, appellees 85. at 81- Sims and Wolfe have argued identifying approach- App. 15. 84. possible ing it be individual researchers would great public to discover information of interest: 16. Id. experimentation, scope of MKULTRA research, findings substantive side Reprinted App. at 88 17. 97. drugs, various identities of effects of subjects. experimental appellees Brief for 1979) (D. F.Supp. D.C. Sims 18. 26-28. 13, 1979). (as Aug. amended Id. at 87. researchers, pa- individual and it filed no it could determined court tion Agency with- accept position could pers asserting the names in issue as to whether out additional protect the national properly be classified expec- any had reasonable “any researcher l.22 A final security would participation or her tation that his of the re- judgment ordering disclosure researcher any whether as to anonymous, November names was entered on searchers’ might interests which any privacy has other appeal This ensued. 1979.23 * * * or by disclosure compromised other ob- any whether researcher objection to disclosure OF ACT
jection or reason
II. FREEDOM
INFORMATION
Judge
name.”20
Oberdorfer
of his or her
Act, under
of Information
The Freedom
to communicate
again invited the CIA
arises,
with un
prescribes
which this case
apprise
researchers and
the individual
of the courts in
clarity
mistakable
the role
responses by October
court of their
exemption.
evaluating
agency claims
additional
gave
The court also
compel
is to
policy
The basic
of the Act
not to
rely
time to reconsider its decision
always
on the
disclosure. The burden
FOIA, which authorizes
Exemption 1 to the
right
of a
agency
support any
claim
properly
of documents that are
withholding
withhold,
552(a)(3) (1976), and
5 U.S.C. §
securi-
classified in order to
to undertake de
the courts are authorized
foreign policy.21
in defense or
ty interests
novo review
ap
constructions of
*5
pursue
sugges-
chose not
to
The CIA
agency
determina
plicable statutes and
tions of the District Court. The
fall within ex
particular
tions that
records
Exemption
to its view that
adhered
Id.24
emption
no communication with the
required
claim
classifications.
fact,
552(b)(1).
were
In
the lists
Id. at 89.
U.S.C. §
20.
classified, but
the defendant has
once so
1,
(1976),
552(b)(1)
Exemption
5 U.S.C. §
declassify
to
them so that
since elected
compulsory
from
disclosure matters
immunizes
(b)(1).
exempt
Nothing
are not now
that are:
(b)(3)
ruling
inapplicable
Court’s
(A) specifically authorized under criteria es-
to the
here at issue is intended to fore-
lists
by
kept
tablished
an Executive order to be
(or approve) new classification of the
close
secret in the interest of national defense or
foreign policy
(b)(1)
lists and resort to section
in order to
(B)
properly
are in fact
anonymity
protect any commitment to
made
pursuant to such Executive
classified
order[.]
by
any institution or research-
defendants to
12065,
Fed.Reg.
(July
accompanying
Executive
Order
ers. The effective date of the
3, 1978), currently permits
1,
of in-
classification
order has been set forward to October
categories:
permit
formation within three
the defendant
to
order
possibility
applied
of classi-
“Top
reexamine and act on the
Secret” shall be
1-102.
information,
fying the names of institutions and research-
disclosure
the unauthorized
expected
reasonably
otherwise be disclosable and
of which
could be
ers which would
grave damage
opposition
exceptionally
cause
to the na-
to in-
amend the motion and
security.
(b)(1),
tional
voke
if it should elect to do so.
applied only to
1-103. “Secret” shall be
18,
CIA,
F.Supp.
supra
at 88
Sims v.
information,
disclosure of
the unauthorized
(footnote omitted).
reasonably
expected to cause
which
could be
security.
damage
serious
to the national
Response to Plaintiffs’ Motion
22. Defendant’s
applied to
1-104. “Confidential” shall be
Order,
113,
App.
Final
for Issuance of a
information,
the unauthorized disclosure
27, 1979).
(Nov.
114-115
reasonably
expected
which
could be
to cause
damage
security.
identifiable
to the national
Reprinted App. at 117.
28950,
Id. at
§§ 1-102-1-104. The court’s invi-
Exemption
tation to the CIA to cite
1 could
authority
given
de
to review
were
24. Courts
scarcely
explicit:
have been more
any
“in
of access
order
novo
denial
objec-
policy
The Court also notes that the
propriety of the
as to the
ultimate decision
agency’s
might very
tives which concern the Director
by
made
the court and [to]
action is
by classifying
well be accommodated
the lists
meaningless
becoming
prevent
from
[review]
pur-
of names of institutions and researchers
agency
judicial sanctioning
S.
discretion.”
suant to Executive
so that the
Order
Cong.,
Rep.
1st Sess. 8
No.
89th
exempt
by
lists would be
disclosure
After the Robertson Court
agency
by statute.”29
by an
weighing claims asserted
In
language encompassed
secur-
stat-
with national
held that
connected
intimately
as
natural
may
agency
feel a
discretion
de-
granting
courts
broad
ity as the
ute
deference.
with some
should
proceed
whether
disposition
termine
however,
context,
Con- withheld,
Congress,
delicate
concerned that
Even in this
basic
FOIA
pur-
has indicated
gress
threatened
construction
Court’s
must be en-
of maximum
policy
FOIA,
quickly
amended
poses
the courts.25
by
cases
appropriate
forced in
3 now
nondis-
authorizes
Act.
exempted
“specifically
of matters
closure
Freedom
In-
amendments
Two
only where the
statute”
from disclosure
Act,
response
adopted
formation
both
“(A) requires
provision either
exempting
Court,
Supreme
by the
deferential decisions
pub-
from the
matters be withheld
that the
concern-
intent
signal congressional
clearly
discre-
as to leave no
lic in such a manner
amendment
The first
ing
judicial
role.
particu-
issue,
(B)
establishes
on the
tion
Mink,
410 U.S.
to EPA
responded
withholding
par-
or refers to
833-34,
119 lar criteria
81-84,
35 L.Ed.2d
93 S.Ct.
to be
types of matters
nondis-
ticular
Court affirmed
(1973),
withheld[.]”30
in which the
the “national
closure under
its claim
the CIA rests
case
bar
In the
FOIA, solely on
exemption to the
security”
must,
withhold,
specif-
on
right to
of a
Exemp-
affidavit.
the basis of
provided by the FOIA.
exemptions
ic
“specifically
matters
tion 1 then covered
FOIA.
exempt
from the
Con-
CIA is
kept
se-
order
required
Executive
requirements
that the
has determined
gress
national defense
in the interest
cret
by the
security are satisfied
of national
the Court con-
foreign policy,”26
exemptions
created
specific structure
judicial
withholding
provision
strued
statute.
of executive
propriety
to test the
authority
statutory framework
Within the
Congress
years
Within two
classifications.
or all of the nine
rely
is entitled to
modified,
As
by legislation.
reversed Mink
cases
previous
exemptions.
FOIA
that,
requires
now
in order
*6
has
this court
brought before
exemption,
for
qualify
1,
Exemption
per-
frequently on
relied most
pursu-
classified
properly
must “in fact [be]
*
* *
in order to
to
classified
taining
matters
Its
Executive order.”27
ant
to
security.31 But
the national
determination
judicial
terms thus demand
or
exemption,
to that
is not limited
documents
of the relation of various
case.
particular
it in a
required to invoke
and,
review
security
accordingly,
one.
it in this
to invoke
It has chosen not
agency
records
order
courts
propriety of classification.28
determine the
docu-
claimed for
protection
Denial of
not, of
does
exemption
one
ments under
similarly
nullify the
moved
Congress
similar mate-
course,
or
that
same
mean
Court in
Supreme
decision rendered
if
from disclosure
exempt
Robertson,
rial would not be
v.
422
FAA Administrator
U.S.
and its
invoked
exemption were
255,
2140,
(1975). another
exemption
“intelligence
hold constitute
sources” within
has
on two
this case the CIA
based
claim
meaning
403(d)(3).32
of Section
among
the nine:
Ex-
exemptions
Although we have never before been
emption
exception
specifically
for matters
3
term,
cases
asked
construe this
our
make
protected
by statute and
6
guidelines
within
clear
which construc
personnel
shield for
and similar files.
of exempting
Exemp
tion
statutes under
proceed.
tion must
“The words of the
III. EXEMPTION 3
precedents
statute and the relevant
estab
A.
Issue Presented
are exempt
lish
kinds of matters that
procedural steps that
necessary
are
consistently
This court
held
that Sec
Turner,
exemption.”
v.
required
Ray
102(d)(3)
Security
tion
the National
Act
C.J.,
supra,
(Wright,
587 F.2d
con
1947,
403(d)(3)
(1976),
50 U.S.C.
which
Moreover,
curring).
we must
care
take
authorizes
Director of
Intelli
Central
susceptible
expansive
terms
interpreta
gence
protect “intelligence
sources and
are
sensitivity
tion
construed “with
disclosure,
methods” from unauthorized
“es
”
Congress
foresaw.’
‘hazardfs]
particular
withholding
tablishes
criteria for
Founding
Scientology
Church of
v. Nat’l
particular
types
refers to
of matters to
Security
824, 829 (D.C.
F.2d
Agency, 610
Cir.
qualifies
withheld”
thus
with
as a
1979) (brackets
original), quoting
Ameri
holding
E.g.,
statute under
624,
can
v.
Congress Kreps,
Jewish
574 F.2d
CIA,
Goland v.
(D.C.
F.2d
Cir.
(D.C.
1978). In
to carry
Cir.
order
out
1978),
denied,
cert.
445 U.S.
100 S.Ct.
“Congress’
loophole
intent
close the
cre
CIA,
63 L.Ed.2d
(1980);
Marks v.
Robertson,”
Founding
ated
Church of
(D.C.
1978).
B. CIA Agency’s areas to lose confidence the for a stan- argues the appeal On this promises and hence to break contact with it. “intelligence which the term dard under individual, “any is source” defined mean Statutory The Context C. pro- is entity engaged or medium that arguments prof assessing the vide, with sub- in fact the CIA provides, be mindful that fered the CIA we must rela- having a rational stantive information of the Robertson the “unmistakable thrust” national securi- the nation’s external tion to “is that amendment the FOIA to assure that Agency candidly The concedes ty.” se policy governmental basic decisions definition, apply which would this is a broad Legislative rather crecy made Pravda and periodicals including even to — branch,” American Jew than the Executive which culls it the New York Times —from Kreps, supra, 574 F.2d Congress ish foreign its view of information that informs n.33; Founding Church of 628 & see Scien policy nations their intentions.34 and Security Agency, supra, 610 tology v. Nat’l construction of the supports The CIA its 827-829, responsi and that is the F.2d primarily through Act an Security National “to bility of courts under FOIA appeal policy considerations.35 impermissibly agencies that do insure complexity of its Agency argues that interpretations expand by unreviewed expansive defi- necessary mission makes ‘particular types Congress of matters’ enough encompass those nition broad Turner, disclosure,” Ray v. exempted from agents who assistance to clandestine give C.J., (Wright, con supra, 587 F.2d at intelligence who devices and those develop Taking seriously responsibil curring). rely, techniques agents even on which we are Congress, ities in us vested provide if do not the CIA themselves Congress agree the CIA that unable to foreign about directly with information sources” to intended term that governments. Noting Although legislative broadly. refer so drugs, like all mind-altering about research history sparse, the mosaic relevant de- leading development investigative Congress’ reflects statutory enactments rationally vices related to technology, discrimination in sensitivity to the need for thereto, threats security national of matters ex identifying particular types may hesitate Agency worries scientists sensitivity This empted from disclosure. to undertake in the research for seen, in the Freedom can be future, or exposure of researchers’ Act,36 but also in relation Information them to sur- might expose foreign identities Security Act37 the National ship between also veillance or interference. Agency Act38 Intelligence and the Central anal- argues responsibilities include suggestion relationship —a that belies as well as of secret informa- ysis collection the term “intelli Congress intended tion, not, consistent with and that it should con gence to receive an elastic sources” com- security, the demands of vital secrets preserve struction order pelled public to make names those protection. otherwise lack that would publications that it persons even those *8 Congress of en- Agency purpose consults. the insists that a Finally, principal 1947, Security Act of power weakening acting standard to withhold the National to uni- 403(d)(3) appears, of its was may one area activities which Section 1947, 343, appellants Security of ch. 33. Brief for 37. National Act (codified (1947) in scattered sections Stat. 496 U.S.C.). of 5 reply & 50 appellants for at 5. 34. See brief Intelligence 25-28; Agency ch. Act of 38. Central generally appellants at brief 35. See for (codified (1949) at 50 reply appellants § 63 Stat. brief for 3-9. (1976). 403a-403j U.S.C. §§ (1976). 36. 5 U.S.C. § compatible under a fy single position appellees the armed forces Secre- the on this appeal. tary part of Defense. As of an overall the establishment of provide effort “to for Against background, this the Central In- procedures and for integrated policies the telligence particu- Agency Act and departments, and agencies, functions of the Act, larly 403g Section 7 of 50 U.S.C. § relating to Government national securi- (1976), significance. assumes As it some ty[,]”39 Code, appears Act created National Securi- in the United States Section 403g, implement “in order ty Intelligence further Council and the Central [protection proviso of intelligence Agency. The vests in the sources] statute CIA re- 403(d)(3),” of section recites in greater de- correlating for and sponsibility evaluating tail specific kinds of information that are intelligence generated, through its statutorily exempt from disclosure: “[T]he facilities, through own also but those of exempted shall from the provi- agencies. states, other government It then * * * * * * any sions law[s] without further elucidation or definition of require which or publication terms, that “the Director of Central Intelli- functions, names, of the organization, offi- gence responsible shall be for protecting titles, salaries, personnel cial numbers of intelligence and sources methods from un- employed by Agency[.]”41 authorized disclosuref.]”40 specificity 403g We believe the Section context, phrase “intelligence important case for two reasons. sources and is ambiguous. methods” It First, parade suggests of horri- support would CIA’s construction that if bles feared its definition is the identity of anyone providing informa- not accepted simply would not occur. Sec- tion rationally related to national security is tion 403g provides specific protection for ipso protected. facto Yet the Act’s under- most of the and CIA activities contractual lying purpose safeguarding national se- relationships about which the curity gives equal plausibility to the infer- expressed greatest concern. This conclu- ence persons regard- are intended to be sion strengthened by the fact protected ed as intelligence sources only if Agency may it has not always though cho- — nondisclosure of their identities would itself sen to do so in this case—invoke justifiable national security justify nondisclosure material it grounds probably construction properly classify pro- most decides to order to —the Security appropriate existing agencies 39. National Act of 1947 § where U.S.C. and fa- Provided, § cilities: That shall have police, subpena, powers, no law-enforcement Security 102(d), 40. National Act § U.S.C. internal-security functions: Provided fur- 403(d) (1976), powers recites the and duties ther, departments agen- That and other of the CIA as follows: cies of the shall Government continue to col- purpose coordinating For the the intelli- lect, evaluate, correlate, and disseminate de- gence activities several Government partmental provided intelligence: And fur- departments agencies in the interest of ther, Intelligence That the Director of Central security, duty national it shall be the responsible protecting shall be intelli- Agency, under the direction of the National gence sources methods from unauthor- Security Council— disclosure; ized (1) Security to advise the National Council (4) perform, the benefit of the exist- concerning intelligence in matters such activ- ing intelligence agencies, such additional departments ities of the Government services of concern as the common National agencies security; relate national Security Council determines can be more ef- (2) to make recommendations to the Na- ficiently centrally; accomplished Security tional Council for the coordination (5) perform such other functions and intelligence depart- such activities of the intelligence affecting duties agencies related to the na- ments and of the Government security Security tional security; as the National relate to the Coun- (3) may intelligence to correlate cil time direct. evaluate time to *9 relating security, provide to the national 403g (1976). 41. 50 appropriate for the U.S.C. § dissemination of such in- telligence using within the Government perform needs security. to its intelli- in national specific tect a interest Second, congression- a 403g gence effectively, yet evinces function could not Section 403(d)(3) origi- as al awareness that Section to reasonably expect guar- obtain without to not and was intended nally written is anteeing confidentiality of those who Congress recog- endlessly expansive. provide it. 403(d)(3) require would nized that Section limiting ex- interpretation construction and D. on Remand Issues withhold; to otherwise it ecutive discretion Application of this standard will entail “implement” no to would have felt need for complex of determinations number listing specific mat- original proviso this must be remanded to the which case exempted from disclosure under Sec- ters distinct, yet Conceptually District Court. 403g. tion if not identical factual implicating similar congressional of action the As a result concerns, these include definition “intelligence in Section meaning of sources” involved and class or “kind” of information all 403(d)(3) unambiguously encompasses assessment of the likelihood persons and entities within the classes to would undermine CIA access to listing 403g. pre- In order Section that kind. serve, limit, range of matters yet also to requisite de inquiries to these look, we additionally protected, must in the factual, and, will be heavily terminations history, to the legislative absence of clear recently em opinion by Judge Wilkey an and valid congressionally pur- mandated courts should accord “substantial phasized, Intelligence Agency, poses of the Central weight” allegations to factual functioning Congress whose effective security. area of national CIA in the 403(d)(3) promote. to sought in Section 144, 148 Halperin (D.C. v. 629 F.2d Cir. out, Congress set chartering In the CIA less, 1980). no but also Congress intended itself, to as an end in protect secrecy no more. for effective collection and provide but of Information amending Freedom intelligence pertinent analysis foreign provide the Mink case and Act to reverse security. Secrecy concerns of national for de novo review in the District Courts seems to have been a concern insofar information un- classify decisions agency it pertinent protection was security exemption, Con- der the national Analysis there- security. national should weight carefully considered gress practical necessity
fore focus on the of se- which determinations were entitled. agency crecy. In order to avoid an overbroad dis- classifica- agency called proposal One standard, see Church cretionary Founding security context to tions in the national Scientology Security Agency, Nat’l judicial scrutiny: subject only to minimal at time yet 610 F.2d same determining courts would be limited underlying concerns Con- basis” whether there was a “reasonable 403(d)(3) interpreted must be gress, Section a docu- to withhold agency decision functional terms: an Congress explicitly rejected source” is a ment.42 person pro- or institution vides, provided review was provided, engaged or has been De novo position.43 provide every the CIA with information of kind case. Judiciary language reported was delet- 43. The “reasonable basis” The bill the Senate prescribed pursuant ed bill to an amend- Committee would have this stan Senate Cong., (b)(2), ment introduced Senator Muskie. See dard. S. 2d 93d Sess. reprinted Cong.Rec. 17022-17032 Senator Ervin in Staffs of Senate Committee on the following supported Judiciary with the the Amendment and House Committee on Govern Operations, remarks: ment and Amendments of 1974 Act Freedom of Information (Pub. 93-502), L. provides a court bill The [unamended] Texts, History, though Legislative Source Book: cannot finds it was even reverse Documents, (Committee wrong classifying Other the docu- Print security, 1975) (hereinafter Book”). being affecting cited as ment as one “Source *10 emerges clearly intent determined whether within
Congressional they fall of the Conference Commit- report exempting from the ambit of one or another statute. weight” stan- spe- tee to which the “substantial Construction of statutes is an area of report recognized judicial competence. Agency interpre- traced.44 cial dard can be departments responsi- not, context, that “the Executive tations should in this receive and foreign policy any weight” ble for national defense more “substantial than their insights into what ad- unique matters have intrinsic merit commands. might verse occur as a result of affects [sic ] Halperin again case is illustrative. a classified public exposure particular opinion section of the court’s settled One Accordingly, “expect[ed] it was record.” attor- point private the narrow of law that courts, making in de novo that Federal de- who work contract for the CIA neys 552(b)(1) in section cases under terminations necessarily pertaining in matters clandes- law, will ac- Freedom of Information “personnel tine activities em- constitute to an affi- weight agency’s cord substantial whose names are ployed by Agency” concerning davit the details of the classified exempt from disclosure under record.”45 But disputed status id., 629 403g. and Section See F.2d at 151. reiterated its Conference Committee inten- legal Before narrow conclu- reaching this judicial
tion to authorize de novo
decisions.
court,
parts
opinion,
sion the
in other
of its
specified
And it
burden remains
“[t]he
weight
Agency’s
accorded substantial
on the Government under this law.”46
assertion that disclosure of the names of
illustrates,
Halperin
As the
case
the “sub-
attorneys
exposure
such
would lead to
Id.,
weight”
likely
intelligence
stantial
formula is most
573
its
After the District Court rendered
deci-
provi
this
under
justify nondisclosure
to
opinion
Judge Robinson’s
sion in this case
carry each of
must
sion,
Government
the
of
City
in Board of Trade of
for this court
First,
must es
agency
the
burdens.
three
Trading
Futures
Chicago
Commodity
v.
in fact
file is
requested
the
that
tablish
392,
(D.C.Cir.
Comm’n,
F.2d
396-400
627
“personnel,”
classified
appropriately
the fea-
1980),
and clarified
analyzed
has
Second, it must
“medical,” or “similar.”
to
possess
must
meet
a document
tures that
of
information
that release
the
demonstrate
threshold,
of
requirements
the
definitional
privacy interests
violate substantial
would
Exemption 6. Had
a “similar” file under
Finally,
involved.
or
person
persons
the
of
of
thé benefit
Judge
had
this
Oberdorfer
met,
are
two burdens
if the first
but
concluded, as
might well have
opinion, he
on
balancing test
prescribes
the statute
do,
requested
CIA records
we
the
prevail.
also
must
agency
which the
“personnel
be considered
this case cannot
disclosure,
the
must
to resist
order
eligible
similar files”
and medical files [or]
person
interest in
the substantial
show that
withholding.
for
public
the
outweighed
not
privacy
al
by Congress to
6
intended
Exemption was
v.
Dep’t of Air Force
in disclosure.
interest
public
from
individuals
protect
1604,
1592,
352, 373,
Rose,
96 S.Ct.
425 U.S.
lives, whether the
of their
“intimate details
NLRB,
(1976);
v.
450
Getman
48 L.Ed.2d
files,
personnel
medical
disclosure be
1971).
670,
(D.C.
674-677
Cir.
F.2d
files,
files.” Board
or
similar
other
of names of
list
Although finding
Commodity
v.
Chicago
City
Trade of
comprised “similar
researchers
individual
Comm’n,
627 F.2d
Trading
Futures
6,
District Court
the
files” under
Housing
v.
399,
Alliance
quoting Rural
right to
claimed
rejected
Government’s
73, 77
498 F.2d
Dep’t
Agriculture,
U.S.
determining that
CIA had
withhold
EPA, 484 F.2d
1974);
v.
(D.C. Cir.
see Robles
satisfy the
requirement
third
failed
843,
Although
(4th
1973).
opin-
Cir.
The court noted that
nondisclosure.48
the ex-
Housing stated
ion in Rural
information the
supplied
not
Agency had
broadly
indi-
emption
phrased
“is
embarrassing
assess-
essential
accurate
range
court deemed
from a wide
viduals
involved.49
the context
privacy
disclosures,”
interests
F.2d at
ment
that the
recognition
information the Govern-
the court’s
And without such
makes clear
is con-
the statute
balancing
which
could not
disclosures with
prevail
ment
matters of
involving
cerned are those
test.
it
Kleppe,
invited
to invoke
for its claim
Ass’n
Nat'l Parks
Conservation
1976);
(D.C.
Robert
re-
547 F.2d
685 n.44
Cir.
individual
communicate with
the CIA to
Defense,
Dep’t
F.Supp.
son v.
information as
searchers
elicit “additional
(D.
1975).
any
any
D.C.
ex-
has
reasonable
researcher
whether
participation
pectation
would
his or her
opinion
Any ambiguity in the court’s
arises
any
anonymous,
has
researcher
as to whether
inquiries
third
are so
because the second and
might
any
privacy
interests which
other
intimately
Although the court’s
connected.
participation
compromised
disclosure of
public
conclusion that the
interest
in disclosure
any
any
project
whether
researcher
outweighs
privacy
interest
in nondisclosure
objection
objection
dis-
other
or reason
clearly
weighing of the relevant
assumes some
Believing it
Id.
his
her name.”
closure of
interest,
privacy
the Dis-
unclear whether
justify
possible
might
its
somehow
that the CIA
trict
case decided
second is-
Court
the basis of facts devel-
claim on
person-
sue —whether
was an invasion of
there
communications,
suggested
oped from the
privacy sufficiently deep
quali-
al
and severe
date of
the effective
District
deferred
Court
“clearly
fy
unwar-
circumstances
nearly
give
two months
order
disclose
merely
might
have as-
ranted.”
The court
develop
facts and
elicit more
arguen-
time to
CIA
sumed the existence of such an interest
CIA,
legal arguments
how-
based thereon.
do and
found that
interest
to be overrid-
then
ever,
the re-
supra
to communicate
den. See
chose
Sims v.
legal
merely repeated
F.Supp.
theo-
at 89.
searchers.
It
urged
ries
earlier.
Although
the District Court held that
provided adequate
support
had
factual
commodity futures
Chicago.51
nature. Because of its
market
personal
intimate
nature,
re-
personal
intimate
part
inquiry
plywood
As
of its
into the
status,
chil-
legitimacy
“marital
garding
futures contract
solicited
Commission
dren,
children,
fathers of
medi-
identity of
suggestions
persons
criticisms
condition, welfare payments,
cal
alcoholic
contract,
some of
trading under
at least
*12
family fights, reputation, and
consumption,
responded
understanding
whom
with the
Exemption
so on” falls within the ambit
kept
that their identities would be
confiden-
contrast,
Id. By
Judge
6.
as
Robinson tial. The
Commission therefore asked
case,
Chicago
in
Board of
stated
Trade
sugges-
respond
complaints
Board to
to
and
627 F.2d at
the decisions of
court
issuing
tions that it identified
as
that
have established
information connected
Arguing
“trade sources.”
that
it could not
relationships does not
professional
with
suggestions
the criticisms and
with-
assess
exemption.
qualify for the
sources,
knowing their
the Board refus-
out
NLRB,
example,
supra,
In Getman v.
respond
question
to
until
names in
ed
we ordered disclosure of a list of names and
de-
were
The
still
released.
Commission
persons eligible
addresses of
to vote in un-
informants,
of its
clined to reveal
names
elections,
representation
ion
asser-
despite
opinion
an
and
FOIA action ensued.
privacy
compro-
tions that
their
would be
court
by Judge Robinson this
concluded
Although holding explicitly only
mised.50
apply
6 did not
to the chal-
clearly
that release would not constitute a
records,
essentially
lenged
due to their
busi-
privacy,
unwarranted
invasion of
we
There
case
present
ness nature.
was
strongly suggested
requested
lists
interest,
privacy
implicated
a
“insofar as
of names and
qualify
addresses failed to
as
identifying
expose
release of
details would
“similar files.”
real
thrust of Ex-
“[T]he
sources,
occupations of these
rela-
their
wrote,
(6),”
emption
guard against
we
“is to
Board,
they per-
how
tionship to the
unnecessary
agen-
disclosure of files of such
workings
enterprise
market
ceive the
cies as the Veterans Administration or the
least
Department
part
Welfare
from which
derive
Selective Service
* *
“But,”
*.
Bureau of Prisons
The
at 399.
giving of
their livelihood.” 627 F.2d
very
names and addresses is
continued,
a
much lower
court
fact
“the
remains
degree of
We adhere Board Chicago in the the District Court that the CIA has failed developed emption developed Eschewing 6 was sug- case. justify of Trade nondisclosure. personal intimate details Court that com- gestions by the District re judgments and family life, not business researchers, municate with the individual Surely it was not intended lationships. their particularize has failed concern public matters of such clear shield establish the to disclosure or to objections entering into con the names of those in individ- likely consequences of disclosure government. federal tracts with the de- of a more cases. In the absence ual showing, we factual and conclusive tailed claim to invoke support To had hardly find that could of Air principally Dep’t the CIA relies personal privacy so an invasion of shown Rose, a case which the Force *13 “clearly as to count deep and severe of files sum- Court ordered release Supreme against the when measured unwarranted” proceedings against marizing disciplinary in full disclo- countervailing interest ap- public but Academy at Force cadets the Air lan- whose applying And in a statute sure. individual names therein. proved deletion of the bal- the court to tilt disciplinary guage “instructs holding pro- of that records disclosure,” v. in of Getman provi- the “similar files” ance favor ceedings triggered 674, 6, noted, NLRB, at we have to 450 F.2d the Court sion of of weight of “life- the claims factors, the possibility other accord substantial among possi- from disclo- These include long ensuing possible public profit. embarrassment” knowledge specific possibility argues public sure. The CIA increases in ble possible researchers identifi- projects of embarrassment CIA experimental present drug testing. in the brings requested the records victims of of additional cation holding of Rose. We cannot case within the agree. V. CONCLUSION Although threat of embarrassment herein, judg- For the reasons stated Rose, significant in see 425
was a factor vacated Court must be ment of the District 1606-07, 48 376-377, U.S. S.Ct. for further action remanded case 11, pains was also at L.Ed.2d the Court opinion. with this not inconsistent panels at the note that the records Academy judgments Air Force involved and remanded. Vacated person matters are intimate and about in of eth highest degree judgments al — MARKEY, dissenting in Judge, Chief There propriety
ical and individual honor. part: was no that “embarrassment” implication lu- Wright’s typically join Judge I Chief justify nondis alone would have sufficed court, dissenting, for the cid opinion Exemption 6 could not be Clearly closure. conclusion respect, only from the utmost invoked, Rose, to concerns under 3 is respect that a remand in of a contractor who would be embarrassed or advisable. necessary either responsibility shoddy disclosure of his No it reach the names work. more should filed Plaintiffs years enough. Three by the nature of con of those embarrassed 1977. After more request August, in their they tract work have undertaken.52 they filed suit in year delay, than a litigation, November, year 1978. After Moreover, we were to reach the even if now Septem- It is in 1979. prevailed in stage weighing privacy interest ber, sought is at ultimately that of balanc- 1980. The nondisclosure and (D.C. Cir. Comm’n, Trading 627 F.2d embarrassing 52. The that an disclosure fact might 1980). costly consequences was have business implicitly held irrelevent in Board of to be City Chicago Commodity supra. following Trade of Futures 53. See text imperative, Agency, prompt Absent some conduct years my least 14 old. view plaintiffs not be forced to return for is unnecessary should that remand and inadvisable. litigation further the district court. true that It is neither the courts, shirking I while none nor agree that the district court had the Nonetheless, statutory responsibilities their definition present available. FOIA, approach with sheathed the definition should the differences between here security swords when is in- Agen- our nation’s established and employed not, record, volved. The is not the EPA such as cy light are however, Here, spe- FAA. has compel remand. to refuse on na-
cifically declined present is broader in some definition tional security grounds. It is senses narrower in others.1 broad- Indeed, provided, has substituting “provides, declined dis- er in deference-in-depth provide” dained the shown been engaged or has the district court. It has to con- engaged provide, elected “is or in fact Agency’s interpretation front the with a provides.” courts broad It in eliminating narrower “medium,” of Exemption declining the district and in the broad supplanting additional grant court’s time to consider “substantive information” and “hav- terms theory, assert a contract the nation’s ing a rational relation to exter- *14 researchers, contact the and to a security” show facts nal national with more usable indicating interpretation that its “intelli- Agency “information of a kind the needs to gence sources” as here applied is not so its perform intelligence function effective- overbroad as amount adding to untrammeled is ly.” It narrower also in the emi- us, discretion. Before the Agency appropriate requirement that in- nently the presents policy questions properly more formation be of a kind the CIA “could not presented Congress. to the resulting reasonably The expect guar- to obtain without impression oblige. is one of anteeing confidentiality noblesse It the of those who injustice does the no Agency to remark that provide it.” one who appears to have down thrown a Agency’s effectively The definition reads gauntlet surprised should not be when it source” “information appears to picked Agen- have been The up. source,” requiring protection of all sources cy’s implicit supply invitation to a usable “rationally information all related” to source,” definition of “intelligence as that security.2 majority opinion national As the phrase is employed 403(d)(3), in Section has clear, secrecy’s makes that into maw sucks been well Judge Wright’s met Chief many many too sources of kinds too opinion. Agency’s information. That the definition
The clarity applicability defi- unacceptable, however, that not is is alone suffi- nition record, to the facts of coupled with cient for remand here. basis convenience, juxta- having 1. For the definitions are substantive rational re- posed: to the lation nation’s external national securi- ty.” Present definition: ‘intelligence person source’ is a or in- “[A]n here 2. We not with deal provides, provided, stitution that has or has Exemption 1. Considerations se- engaged provide been the with infor- may go beyond curity inquiries on whether a Agency per- mation of a kind the needs to potential adversary may already have certain intelligence effectively, yet form its function information, encompass may inquiries reasonably expect could not to obtain with- adversary Agency the knows the whether knows, guaranteeing confidentiality out the of those adversary may whether the learn the provide who it.” and, Agency knowing, is interested Agency’s definition: course, adversary may whether the learn of the ‘intelligence generally “An source’ in- Agency’s source or of that certain in- sources dividual, entity engaged or medium that is formation. provide, provides, or in fact the CIA with is, declined the standard, promises by Agency. It that Application it definition, ask the my suggestion view district court’s not in does majority’s researchers, “conceptually dis- in connection with require determinations expected even confidential- by, or foreclosed whether made tinct” from those to do what Further, ity. party A to, remand enable district court. Agency ini- to do when specifically concerns iden- it had refused implicated factual I find court, thereby al- tially before the district tical. conduct of lowing to force the party necessary thought Presumably, remand my entirely view is in piecemeal litigation, show that the Agency to allow inappropriate. provided 185 researchers institutions record on Further, in the Agency needs to what there is of a kind “information Agency had indicates that subject effective- intelligence its function perform attempting prove expect good to obtain reason for not reasonably yet could ly, guaran- without a confidentiality of information unobtainable guaranteeing the without ap- all that But, confidentiality. From it.” as the record tee provide those who with- was obtained shows, already pears, established the information (re- implied. or guarantee, express information here involved out the “kind” of through a front modifying drugs). primarily dealt on behavior search data had promised If organization. need for the It has established claimed is, implicitly, it information, confidentiality, explicitly of such to counter use in the court below. so established potential adversaries and devel- could have drugs by not, response Whatev- it did even capacity own for their use. That op its invitation, be taken evi- morality court’s should er of the wisdom may said cannot do so on operation, and its dence that could program the MKULTRA need for the research data “to remand.3 Agency’s *15 function effective- intelligence perform weight” stan- the “substantial Though challenged been on this record. ly” has not initially phrased in relation dard was Hence, prove is unnecessary a remand declas- those here are classified records and that element of the standard. sified, present to base a necessary it That ground. whether on that question leaves refusal to remand That gave substantial Halperin a Agency the information was of kind the the court respecting assertion weight Agency’s to obtain to the reasonably expect “could not of the names confidentiality of the effect of disclosure guaranteeing the without might for the proof contract provide attorneys those who it.” Yet under a considering what if we were question precisely answer to that have relevance effect of disclo- showing” of the adamantly has refused to seek “factual Agency and this court The district court present, court twice sure here.4 though or the district showing, though effectively it have been denied Agency invited to do so. The here oppor- ample more than request Agency court’s for evi- has had refused the district rely on “substan- tunity make it and to express implied confidentiality dence names, holding gamesmanship, back some defenses Similarly, re- 3. reclassification through appeal, a Exemption post-appeal an while it tries out others liance on or similar judicial pro- required Agen- practice to obtain a actions in avoidance cy, impression playing defenses asserted. fast nouncement on the would create an could judicial process. here of two defenses courts’ treatment and loose with the With three easily reclassification, years a third. have included and more consider years consider reliance before the than two Agency may courts on be not here asserted 4. The presumed working basis for those to have no sound were under researchers institutions or contrary make the actions. A view would were otherwise with the contract judicial Agency appear engaged 403g “employees” to have 50 U.S.C. If, majority tial as the weight” standard. “inappropriate al.,
correctly says, Mary it would et P. LAFFEY any part for a court to abdicate of its presented when responsibility to decide” AIRLINES, INC., NORTHWEST showing, with such a factual even in the Appellant, standard, weight face of a substantial inappropriate would appear even more Association, Air Line Pilots an appellate court to remand when the dis- Non-Aligned Party. unequivocal- trict court was specifically 78-1365. No. ly showing.5 denied that Appeals, Court of United States join Hence I the conclusion that cannot District of Columbia Circuit. applied improper legal the district court standard to the 3 defense. That Jan. 1979. Argued Agency’s defense rested on the definition of Oct. Decided court, sources.” district viewing (a that definition overbroad standard), held
proper legal the defense in- same,
adequate. We do the same
ground. “provide guidelines” That we also others,
will helpful Agency, to the judicial interests of economy fu- however, Where, here,
ture cases. guidelines, cannot meet those in-
deed, try declined to meeting even them (in
when the words) district court different effort,
invited that I would not remand. I
would affirm judgment the district court’s
respecting *16 record, require It is true that should courts but the disclosure of the names of insti- impossible, predictions and that of what others tutions and who were researchers might sought impression if they working do here names were dis- were not for the necessarily speculative, Agency impede closed are willing- but the time cannot be assumed to my past. for those considerations is in view ness of work for the others to when Moreover, also, nothing remotely Presumably, of record asked to do hints so. those em- ploying will able to do obtain more FOIA to the names here repeat made, already than sought viability the bald assertions do not intend risk continued namely, by unnecessarily exposing these names will the statute those impede willingness public of others to work with the institutions researchers ridicule Agency. public today perceives solely ground caught up Whether on the were pariah knowledge as a is not established on without their MKULTRA.