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MARKS v. CIA

November 3, 1976

John D. MARKS, Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY and William E. Colby, Director, Central Intelligence Agency, Defendants



The opinion of the court was delivered by: CORCORAN

 CORCORAN, District Judge.

 A. Background

 The plaintiff, John D. Marks, on October 20, 1975, brought this action pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (1970), as amended, 5 U.S.C. § 552 (Supp. IV 1974) [FOIA]. He seeks disclosure of "all files, dossiers, communications, computer printouts and other documents" concerning him which defendant Central Intelligence Agency [CIA] then, or in the past, maintained.

 Forty-one documents were identified by the CIA as responsive to Marks' FOIA request. According to affidavits filed by the defendants, these materials were largely generated in the course of a national security intelligence investigation of the plaintiff, a former State Department employee with access to classified materials. That investigation was undertaken by the Office of Security, CIA, "when it learned that he [Marks] planned to publish a substantial quantity of classified information and when it was reported by sources that he was contacting present and former government employees in sensitive positions in an attempt to secure specific classified information from them." Twenty-seven of the items identified have been released to the plaintiff in their entireties or with uncontested deletions. Consequently, fourteen documents remain in issue, viz., Documents Nos. 6, 7, 10, 14, 16, 19, 20, 21, 22, 23, 25, 26, 27 and 29. *fn1"

 Presently before the Court are plaintiff's motion for in camera review and defendants' motion for summary judgment.

 B. In Camera Review

 Addressing first the motion for in camera review of the records in question, the Court rejects as unpersuasive plaintiff's suggestion that the various affidavits submitted in support of defendants' summary judgment motion are insufficiently detailed under the standards articulated 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). The Court of Appeals concluded in the Vaughn case that in order to test properly the classification of claims to exemptions under the FOIA, the government must provide to the district court (a) a "relatively detailed" analysis, in manageable segments, specifying the justifications for refusing to disclose information and (b) an itemization and indexing which would "correlate statements made in the Government's refusal justification with actual portions of the document." *fn2" 157 U.S.App.D.C. at 346-48, 484 F.2d at 826-28.

 For the purposes of this litigation, defendants have numbered and concisely identified relevant agency records and exemptions invoked in the affidavit of Robert S. Young. A reasonably detailed statement of the nature of information relied upon as justification for non-disclosure of all or specific segments of each document, correlated to the numbering system of the Young affidavit, is contained in the affidavits of Robert W. Gambino and Charles W. Briggs. After careful review of these submissions and comparison with defendants' answers to interrogatories, the CIA's letters to plaintiff, and portions of the ten articles in issue which have been released to Marks, we are satisfied that the defendants' efforts to itemize and index relevant materials and to justify nondisclosure with reference to particular information are sufficient under the Vaughn criteria. Accordingly, in camera review is unnecessary *fn3" and the motion therefore is denied.

 C. Summary Judgment

 Turning to defendants' motion for summary judgment, we note that the CIA has invoked three FOIA exemptions with respect to the fourteen relevant documents, viz., 5 U.S.C. § 552(b)(1) [exemption 1], (b)(3) [exemption 3], and (b)(7) [exemption 7]. Marks has challenged the latter two exemptions as unavailable to the CIA as a matter of law.

 (1) Exemption 3 -- 5 U.S.C. § 552(b)(3)

 Section 552(b)(3) provides that the FOIA's mandatory disclosure provisions do not apply to matters which are "specifically exempted from disclosure by statute." The defendants claim this exemption upon the authority of section 102(d)(3) of the National Security Act of 1947, 50 U.S.C. § 403(d)(3) [NSA], or section 7 of the Central Intelligence Agency Act of 1949, 50 U.S.C. § 403g [CIAA], or both. *fn4" Marks concedes that section 7 of CIAA falls within the purview of the exemption but contends that section 102(d)(3) of NSA does not. However, plaintiff fails to recognize that both the Senate and Conference Reports on the 1974 FOIA amendments explicitly state the Congressional intent that section 102(d)(3) of NSA shall be considered an exemption 3 statute. *fn5" S.Rep. No. 93-854, 93d Cong., 2d Sess. at 16 (1974); S.Rep. No. 93-1200, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.Code Cong. & Admin.News at p. 6290; see FAA Administrator v. Robertson, 422 U.S. 255, 95 S. Ct. 2140, 45 L. Ed. 2d 164 (1975); Weissman v. CIA, Civil Action No. 75-1583 (D.D.C. April 14, 1976); Phillippi v. CIA, Civil Action No. 75-1265 (D.D.C. ...


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