judicial administration of this important Act into the secrecy of chambers.
Congress was apparently sensitive to these subtle but fundamental considerations, for it left it in a court's discretion whether it would or would not engage in this ex parte procedure in chambers, 5 U.S.C. § 552(a)(4)(B). See H.Rep. No. 93-876, 1974 U.S.Code Cong. and Adm.News, p. 6273; Comment, Judicial Review of Classified Documents: Amendments to the Freedom of Information Act, 12 Harv.J. Legis. 415, 441-43 (1975).
The Court is aware of the holding 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), which contemplates a routine ex parte in camera proceeding for the resolution of Freedom of Information Act contests. This rule was modified by the Congress when it recognized that in camera proceedings are not mandatory but may be held only in the Court's discretion.
Ex parte in camera proceedings are unnecessary, at least in most instances. The Government in most if not all contested cases should be able to satisfy its exemption claim in open court with sufficient specificity that the availability or unavailability of the exemption can be determined in an adversary fashion without revealing facts in documents deemed exempt. In other Freedom of Information Act cases which have come before this Court, e.g., Washington Research Project, Inc. v. Department of Health, Education and Welfare, 366 F. Supp. 929 (D.D.C.1973), affirmed in part and reversed in part, 164 U.S.App.D.C. 169, 504 F.2d 238 (1974), cert. denied, 421 U.S. 963, 95 S. Ct. 1951, 44 L. Ed. 2d 450 (1975); Moss v. Laird, Civil Action No. 1254-71 (D.D.C. Dec. 7, 1971), satisfactory arrangements have been made at pretrial consistent with this approach suited to the needs of the particular case and the issues have been resolved through the traditional adversary process.
While more experience under the Act may be necessary to make all ex parte hearings useless, surely it can never be an abuse of discretion for a court to attempt resolution of these cases short of the in camera process. Should a particular situation arise where in camera review appears essential it will be time enough then to consider whether the rights of the person seeking information have been infringed and that the Act as thus applied is unconstitutional. Much will depend on the willingness of the Government agencies to avoid blanket boilerplate assertions of privilege and to develop types of indices and descriptions that enable a court to search out the truth in a public proceeding without destroying the secrecy which the Government considers it essential to maintain.
At least that is the course this Court intends to follow. In this instance the Government's submission is woefully inadequate. There is no public index. One conclusory representation is made in brief form. There is no indication of when or how the material sought was classified or of the timing, degree or extent of declassification or recent review. There is, moreover, no indication of any effort to separate classified and unclassified information within particular documents or files. Some documentation in the area has already been made public but no explanation is given why the papers released differ from other portions of the same or related papers being withheld. The nature of the security problem asserted is not explained even in broadest hypothetical terms. These and other defects pervade the matter. There is merely an attempt by in camera lawyers' papers classified as Top Secret to cut off the request for information at the outset. This will not do. The Court is entitled to be better informed on a public record and the plaintiff should be able to address more concrete issues. The Court will not receive or examine affidavits in camera at this stage. An adequate, complete affidavit justifying exemption shall be publicly filed reciting all pertinent facts short of those that reveal any fact which the defendants believe is protected by the exemption claimed.
The proposed ex parte in camera order is rejected without prejudice. The Government shall show further cause in fourteen days why exemption should be granted by appropriate public representations.
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