The opinion of the court was delivered by: OBERDORFER
Plaintiff, a former official of the National Security Council (NSC), brought this action under the Freedom of Information Act
against NSC and named defendants to compel public release of two lists of NSC documents.
One of the lists whose release is sought is a compilation of the number and exact title of each National Security Study Memoranda (NSSM) issued since January 20, 1969. The other is a similar compilation with respect to National Security Divisional Memoranda (NSDM).
The plaintiff served at NSC when it originated this system of Presidential decision-making by memorandum and had a major role in developing it. The primary function of these memoranda is to gather information and recommendations for the President of the United States on current foreign policy and national defense issues and to record and communicate the President's decision to responsible officials. Prior to filing this action plaintiff had requested defendants to furnish to him a list of the titles of memoranda prepared during and subsequent to his tenure at NSC. No lists had been prepared contemporaneously with the memoranda. In response to the request, however, NSC prepared such lists and, then, perceiving security considerations with respect to them, classified each as "Secret," pursuant to Executive Order number 11652, dated March 8, 1972.
In addition, some of the individual titles on the lists were also classified as "Secret."
Defendants advised plaintiff that release of the lists, and especially the individually classified titles, would reveal sensitive information as to the timing and focus of United States foreign policy, which could "reasonably be expected to cause serious damage to the national security." Accordingly, defendants refused to release the lists so classified. Plaintiff appealed this decision administratively, which appeal was denied by Henry Kissinger, then Assistant to the President for National Security Affairs. Plaintiff then initiated this action. He seeks in this suit production of the two lists, qua lists, and not the underlying memoranda.
Defendants have moved for summary judgment, asserting that there are no material facts in dispute and that the lists are specifically exempted in full from disclosure, unclassified titles included, by §§ 552(b) (1) and (b) (5) of FOIA. 5 U.S.C. § 552(b) exempts from release matters that are:
(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;
(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency . . . .
Plaintiff in turn has moved for partial summary judgment, asserting that:
1. these titles are not part of the deliberative process, but rather represent final agency determinations on either the subject to be studied or the conclusions to be drawn from the studies, and thus are not within the scope of the (b) (5) exemption, and
2. the titles on the two lists which are not individually classified are not within the (b)(1) exemption and must be released pursuant to the directive of the last paragraph of § 552(b):
Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.
Plaintiff has also moved for a release of the lists to him under a protective order to enable him to frame his arguments regarding the releasability of the unclassified titles and the lack of proper classification of the titles which are individually classified. Plaintiff asserts that he is an expert in national security and suggests that the Court avail itself of his expertise as to whether ...