UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
April 27, 1978
THOMAS E. HAYDEN and JANE S. FONDA, Plaintiffs,
NATIONAL SECURITY AGENCY, et al., Defendants
The opinion of the court was delivered by: CORCORAN
MEMORANDUM AND ORDER
Plaintiffs bring this consolidated action
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
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.
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 properly classified pursuant to such Executive Order.
Defendants assert that Executive Orders (EO) 10501
specifically authorize them to withhold the requested documents and that such documents have been properly classified as either "Top Secret"
pursuant to the Executive Orders. Plaintiffs urge that to determine if the documents meet the criteria established in EO 11652 and whether they have been properly classified, this Court should conduct an in camera inspection of the documents with counsel present.
A. In Camera Inspection
The necessity for in camera inspection of documents was left to the discretion of the Court by Weissman v. CIA, 184 U.S. App. D.C. 117, 121, 565 F.2d 692, 696 (1977); and before the Court orders such inspection, "the Government should be given the opportunity to establish by means of testimony or detailed affidavits that the documents are clearly exempt from disclosure." Id. at 697. "It is only where the record is vague or the agency claims too sweeping or suggestive of bad faith that a District Court should conduct an in camera examination to look for segregable non-exempt matter." Id. at 698.
It was precisely because we found the record too vague and the agency claims too sweeping that we granted defendants' motion to submit a more detailed in camera affidavit. The twenty-page Boardman in camera affidavit which defendants most lately filed contains a summary of each document sought to be withheld, accompanied by a detailed explanation of intelligence sources, methods, or NSA modus operandi by which it was secured. The affidavit also lists the specific exemptions upon which defendants rely for each document. We view the contents of this affidavit to have remedied the vagueness and overbreadth of defendants' prior affidavits and, finding no suggestion of bad faith,
we conclude that an in camera submission of the documents themselves is unnecessary.
B. Agency Prerequisites for Asserting Exemption (b)(1)
In Weissman, supra 565 F.2d at 697 (as amended by the Court's Order of April 4, 1977), the Court established a bifurcated analysis which must be undertaken with respect to exemptions claimed under § 552(b)(1):
If exemption is claimed on the basis of national security the District Court must, of course, be satisfied that the proper procedures have been followed, and that by its sufficient description the contested document logically falls into the exemption indicated.
Accordingly, we move to consider whether the documents have been properly classified under EO 11652, and whether the affidavits submitted by defendants have established that the documents logically fall within the (b)(1) exemption.
(i) Document Classification
On this score, defendants have submitted an affidavit indicating: (1) that each portion of each document is classified Secret or Top Secret pursuant to Executive Orders 10501 and 11652;
(2) that each document has been reviewed by a duly authorized classification officer
and; (3) that each document has the appropriate classification markings.
We deem this affidavit as satisfying defendants' burden of demonstrating that the appropriate procedural steps were taken in classifying the documents. Klaus v. Blake, 428 F. Supp. 37, 38 (D.D.C. 1976).
(ii) Document Content
The defendants assert that the contents of the documents fall within the (b)(1) exemption which permits withholding of information which would compromise national defense or foreign policy of the United States. They place particular reliance on the Top Secret Boardman in camera affidavit. In evaluating this affidavit, we note that:
the legislative history of the 1974 amendments [to the (b)(1) exemption] makes clear that . . . 'substantial weight' is to be accorded to detailed agency affidavits setting forth the basis for exemption.
The conferees recognize that the Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse effects might occur as a result of public disclosure of a particular classified record. Accordingly the conferees expect that the federal courts, in making de novo determinations in section 552(b)(1) cases under the Freedom of Information Act, will accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record. S. Rep. 93-1200, 93d Cong., 2d Sess. 12 (1974). Weissman, supra at 697 n. 10 (as amended).
It would logically follow from this directive to accord "substantial weight" to an agency determination as to the classification of documents that we should give no less weight to an agency's stated reasons for refusal to release the contents of those documents, particularly when those stated reasons represent the conclusions of those who daily deal with the securing and evaluation of foreign intelligence and whose training and experience and intuition are focused upon and directed to those functions. Reading the Top Secret Boardman in camera affidavit in that light, we are satisfied that the release of the material either "could reasonably be expected to cause exceptionally grave danger to the national security"
or "could reasonably be expected to cause serious damage to the national security"
by revealing intelligence sources or methods or by revealing functions and activities of the NSA. Accordingly we hold that 5 U.S.C. § 552(b)(1) exempts from disclosure the documents sought by the plaintiff in this action.
IV. Exemption Under 5 U.S.C. § 552(b)(3)
As an alternative basis for withholding the requested documents, defendants assert that the documents are exempt under 5 U.S.C. § 552(b)(3). This exemption provides for nondisclosure of matters that are "specifically exempted from disclosure by statute." Defendants assert inter alia that Pub. L. No. 86-36, § 6, 73 Stat 63 (50 U.S.C.A. § 402 note) (1959) is such an exemption 3 statute and that the documents sought by plaintiffs fall within its purview. That section reads as follows:
Nothing in this Act or any other law (including but not limited to, the first section and section 2 of the Act of August 28, 1935 (5 U.S.C. § 654)) shall be construed to require the disclosure of the organization or any function of the National Security Agency, or any information with respect to the activities thereof, or of the names, titles, salaries or numbers of persons employed by such agency. (emphasis supplied).
Defendants contend that the release of the documents sought by plaintiffs would result in the disclosure of the organization, functions and activities of NSA. On the other hand, plaintiffs assert that Pub. L. No. 86-36 is not an exemption 3 statute and, alternatively, that if it is, it should be interpreted as having "the limited purpose of implementing any protection of intelligence sources or methods under exemption (b)(1) and Executive Order No. 11652."
The Courts have uniformly rejected plaintiffs' first assertion.
As to the alternative, it is true that one court has interpreted Pub. L. No. 86-36 to be limited in its scope.
But even if we were to accept this "limited scope" interpretation, we view the in camera Boardman affidavit as having established that withholding of the documents is necessary for the protection of intelligence sources, methods and activities. Accordingly, we would hold that the documents would be exempt from disclosure even under plaintiffs' "limited scope" interpretation of Pub. L. No. 86-36.
In view of the foregoing, we grant defendants' Motion for Summary Judgment on the issue of the release of the documents themselves.
However, plaintiffs have also expressed an interest in the number of documents being withheld and the number of pages included in each document in that "it might suggest the scope of the NSA's interceptions of communications by, to or concerning a political dissident, an issue of vast public interest in a democracy. . . ."
We fail to see how the revelation of this information could result in disclosing intelligence methods or sources of NSA functions and activities. Accordingly, defendants are ORDERED within 20 days of the filing date of this Memorandum and Order, to disclose to plaintiffs the number of documents being retained and relating to each of them and the number of pages included in each document.
In all other respects, plaintiffs' Cross Motion for Partial Summary Judgment and In Camera Review Subject to Protective Order should be, and the same hereby is denied.
It is so ORDERED this 27th day of April, 1978.