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HAYDEN v. NSA

April 27, 1978

THOMAS E. HAYDEN and JANE S. FONDA, Plaintiffs,
v.
NATIONAL SECURITY AGENCY, et al., Defendants



The opinion of the court was delivered by: CORCORAN

 I. Introduction

 Plaintiffs bring this consolidated action *fn1" pursuant to the Freedom of Information Act (FOIA) 5 U.S.C. § 552 et seq., seeking disclosure of all records pertaining to them in possession of the National Security Agency (NSA). Defendants have filed a Motion for Summary Judgment *fn2" alleging that the information is exempt from disclosure under 5 U.S.C. § 552(b)(1) and 5 U.S.C. § 552(b)(3). Plaintiffs have filed a Cross-Motion for Partial Summary Judgment and In Camera Review Subject to Protective Order. *fn3"

 II. Background

 Following exhaustion of their administrative remedies, plaintiffs filed actions on February 20, 1976. A motion to consolidate was granted May 11, 1976.

 Thereafter, plaintiffs filed a Vaughn4 motion seeking a more detailed justification, itemization and indexing of the documents sought to be withheld. Defendants responded with an affidavit from Norman Boardman, Information Officer of defendant NSA. Finding this affidavit insufficient under Vaughn, we granted plaintiffs' Vaughn motion on January 12, 1977.

 Defendants then responded with their Motion for Summary Judgment and an alternative Motion for Leave to Submit Classified Affidavits for in camera examination. In support of the motions defendants submitted a second Boardman affidavit as well as an affidavit by Charles A. Briggs, Chief of the Information Service Staff of the Central Intelligence Agency (CIA).

 Plaintiffs opposed both of defendants' motions and filed a Cross-Motion for Partial Summary Judgment and a Motion for in camera review of the documents with plaintiffs' counsel present.

 On April 18, 1977, we granted defendants' Motion for Leave to Submit Classified Affidavits for in camera examination, whereupon defendants submitted a third Boardman affidavit in camera. It is twenty pages in length and is classified "Top Secret."

 Neither this last "Top Secret" Boardman affidavit nor defendants' pleadings contend that any of the documents are exempt from disclosure because of the substantive information which they contain. Rather, it is defendants' contention that the documents at issue are exempt under 5 U.S.C. § 552(b)(1) and (b)(3) because disclosure would reveal the means by which the information was acquired, thereby revealing intelligence sources and methods, and the manner in which NSA functions.

 We turn our attention to these contentions.

 III. Exemption Under 5 U.S.C. § 552(b)(1)

 Exemption (b)(1) exempts from the disclosure obligations of the FOIA matters that are:

 
(b)(1)(A) specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and (B) are in fact ...

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