The opinion of the court was delivered by: FLANNERY
FLANNERY, District Judge.
This matter comes before the court on the parties' cross motions for summary judgment. Plaintiffs in this action seek certain documents withheld by defendant agency pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Former employees of the CIA, plaintiffs seek disclosure of certain portions of the CIA's Headquarters Regulations concerning hiring or discharging of employees and vacancy notices of the CIA relating to job descriptions for which plaintiffs potentially could qualify.
Defendants have withheld the documents at issue on the basis of exemptions (b)(3) and (b)(2). The validity of these claimed exemptions is before the court now for purposes of the cross motions for summary judgment.
Defendants contend that the documents at issue are exempted from disclosure by 5 U.S.C. § 552(b)(3), which provides:
This section does not apply to matters that are . . . specifically exempted from disclosure by statute . . . .
Defendants argue that 50 U.S.C. § 403g constitutes an applicable statute for purposes of claiming a (b)(3) exemption. Section 403g provides:
In the interests of the security of the foreign intelligence activities of the United States and in order further to implement the proviso of section 403(d)(3) of this title that the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure, the Agency shall be exempted from the provisions of section 654 of Title 5, and the provisions of any other law which require the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency : Provided, That in furtherance of this section, the Director of the Bureau of the Budget shall make no reports to the Congress in connection with the Agency under section 947(b) of Title 5. [Emphasis supplied]
Since exemption (b)(3) incorporates a Congressional determination that certain materials should not be subject to mandatory disclosure, this court's role in determining the propriety of a statute in a (b)(3) exemption claim is limited. As Justice Stewart stated in Administrator, Federal Aviation Administration v. Robertson,
As matters now stand, when an agency asserts a right to withhold information based on a specific statute of the kind described in Exemption 3, the only question "to be determined in a district court's de novo inquiry is the factual existence of such a statute, regardless of how unwise, self-protective, or inadvertent the statute might be." [Citation omitted].
Although this court previously has concluded that section 403g is a (b)(3) exemption statute,
that conclusion should be reexamined in light of the Court of Appeals recent decision in Phillippi v. CIA, 178 U.S.App.D.C. 243, 546 F.2d 1009 (D.C.Cir. 1976). In Phillippi the Court of Appeals addressed the question of whether section 403g is a (b)(3) statute in the context of advising the district court on further proceedings in that case necessitated by the appeals court's reversal and remand. Slip opinion, at 12 n.14. In response to the CIA's contention that section 403g "allows the Agency to refuse to provide any information at all about anything it does", the court stated:
We do not think that § 403g is so broad . . . . Section 403g is intended "further to implement the proviso of section 403(d) * * * that the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure * * *." This limited purpose is explicitly recognized in the congressional reports cited above, and there is no indication that the section is to be read as a provision authorizing the Agency to withhold any information it may not, for some reason, desire to make public. Moreover, the wording of the section strongly suggests that the authority it confers is specifically directed at any statutes that would otherwise require the Agency to divulge information about its internal structure. The legislative history of the section supports this limited interpretation. See S.Rep.No.106, 81st Cong., 1st Sess. 4 (1949); H.R.Rep.No.160, 81st Cong., 1st Sess. 4 (1949).
Id. While the court certainly here narrows the scope of the potential application of section 403g as a (b)(3) exemption statute, this opinion in no way casts doubt on the conclusion that section 403g qualifies as a (b)(3) statute, particularly in light of the Court of Appeals' confirmation that section 403(d)(3) constitutes a (b)(3) statute. See id. Of course, section 403g cannot be invoked to protect all activities of the CIA, only those directly concerning the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency. The possibly limited purposes surrounding the enactment of section 403g do not operate to exclude its applicability to another statute (FOIA) that potentially mandates disclosure of material explicitly protected by section 403g. The conclusion that ...