The opinion of the court was delivered by: GREEN
This is an action arising under the Freedom of Information Act (hereinafter FOIA), 5 U.S.C. § 552 (Supp. V 1975). Plaintiffs, St. Louis Post-Dispatch, a daily newspaper, and Richard B. Dudman, the paper's Washington Bureau Chief, seek to compel disclosure of certain documents described as "any investigatory files" which defendants have retained in the past ten years pertaining to plaintiff Dudman personally or to the Washington Bureau of the St. Louis Post-Dispatch.
In particular, Mr. Dudman requested permission to view "whatever investigatory file led to the issuance of a subpoena on 13 August 1971 by the United States District Court for the District of Massachusetts for certain telephone records of my home telephone and the telephone of this bureau." Plaintiff Dudman's letter of February 19, 1975 to the Attorney General of the United States.
Mr. Dudman has been associated with the St. Louis Post-Dispatch since 1949 and became Bureau Chief of the paper's Washington Bureau in 1969. He has written numerous articles on foreign policy issues; interviewed foreign officials, including those representing Communist bloc countries; traveled abroad on assignment, including to China and Hanoi; arranged a trip to St. Louis for some Chinese journalists; and has given speeches about his experiences and observations in Indochina.
In June 1971, the St. Louis Post-Dispatch came into possession of copies of the Pentagon Papers, some of which it printed. Thereafter, Mr. Dudman learned that a Boston grand jury investigating the Pentagon Papers leak had subpoenaed the long distance call records of both his home telephone and the Washington office of the Post-Dispatch. Neither he nor the newspaper had any notice of the subpoenas. Mr. Dudman has also learned that the Post-Dispatch was among the newspapers on the 1971 White House "enemies list".
A substantial amount of material relating to these events has previously been released in whole or in part to plaintiffs. However, defendants are withholding 92 documents, or portions thereof, and claim they are exempt under 5 U.S.C. § 552(b) 1, 2, 3, 5, 6, 7(C), 7(D) and 7(E). Defendants have divided these documents into three categories: A. the Dudman main file (22 documents); B. the Dudman "See Reference" file (58 documents which mention Mr. Dudman but are contained in files of other subjects); and C. the St. Louis Post-Dispatch (12 documents).
In addition, defendants have provided the Court with document-by-document summaries of the factual descriptions of each document as those facts relate to the exemptions claimed and which have been presented in several affidavits and depositions, allegedly in conformance with the requirements of a detailed justification, itemization and indexing. Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (1973).
Of the aforementioned 92 documents, plaintiffs have withdrawn their request for 22 of them,
and with regard to two additional documents,
defendants have agreed to disclose those portions which plaintiffs seek.
This matter is currently before the Court, as to the remaining 68 documents, on defendants' motion for summary judgment; plaintiffs' opposition thereto, cross-motion for summary judgment, and motion for in camera inspection; and supplemental memoranda of both parties.
Defendants contend that there are no genuine issues as to any material fact and that they are therefore entitled to summary judgment as a matter of law. Plaintiffs, in both their opposition to defendants' motion and their cross-motion for summary judgment, allege that defendants have failed to carry their burden of proof that the documents being withheld fall within the claimed exemptions and that there are no segregable portions which can be released.
Plaintiffs concur in defendants' statement of material facts as to which there is no genuine issue for purposes of their cross-motion but simultaneously in their opposition claim that there are genuine issues of material fact which can only be resolved through in camera inspection.
The Court need not address this dispute in order to make a determination as to plaintiffs' request for in camera inspection. In camera inspection has clearly been recognized as appropriate in order to "resolve fundamental issues in contested cases," and to aid the Court in fulfilling its "congressionally imposed obligation to make a de novo determination of the propriety of a refusal to provide information in response to an FOIA request." Phillippi v. CIA, 178 U.S. App. D.C. 243, 546 F.2d 1009 (1976). See, Department of the Air Force v. Rose, 425 U.S. 352, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976). Additionally, the defect inherent in in camera review; namely, that it "is necessarily conducted without benefit of criticism and illumination by a party with the actual interest in forcing disclosure", is remedied here by the public justification, itemization and indexing
of the documents which will aid the Court in focusing "on the issues identified and clarified by the adversary process." Phillippi, supra citing Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (1973).
The Court certainly is not of the opinion that in camera inspection is required in every FOIA case. "This is clearly not what Congress intended, nor what this Court has found to be necessary." Weissman v. CIA, 565 F.2d 692 (D.C.Cir. 1977, as amended, April 4, 1977). Nonetheless, it is necessary to determine the need for in camera inspection on a case by case basis. Plaintiffs have made a credible challenge to some of the defendants' claimed exemptions, and fairness dictates that the Court in this case determine de novo the applicability thereof, by means of in camera inspection of a few representative documents bearing in mind, of course, that the agency's affidavits will be accorded substantial weight where national security exemptions are claimed. 93d Cong., 2d Sess., Senate Report No. 93-1200, at 12 (The Conference Report).
Accordingly, the Court will inspect in camera the following documents: A-2, A-3, A-4, A-5, A-9, A-12, A-15, A-21, A-22, B-1, B-5, B-25, B-30, B-47 and C-4. The defendants shall submit these documents to the Court no later than five (5) days following the filing of this memorandum and accompanying order.
With respect to the five CIA documents
for which defendants claim Exemptions (b)(1), (3) and (6),
the Court is of the opinion that further justification, itemization and indexing are required. Vaughn v. Rosen, supra. For example, each claimed exemption should be cross-referenced to the applicable deleted portion of each document. Where the justification refers to "the names of other individuals in a context in which their privacy would be affected", the agency should be able to provide more detailed information.
The Court will reserve final judgment with respect to the pending motions until it has had the opportunity to conduct in camera inspection of the documents requested and review the additional justification, itemization and indexing of the CIA documents.
JUNE L. GREEN U.S. District Judge
MEMORANDUM OPINION [September ...