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SERBIAN EASTERN ORTHODOX DIOCESE v. CIA

October 20, 1978

SERBIAN EASTERN ORTHODOX DIOCESE FOR the UNITED STATES OF AMERICA AND CANADA et al., Plaintiffs,
v.
CENTRAL INTELLIGENCE AGENCY et al., Defendants



The opinion of the court was delivered by: PRATT

MEMORANDUM OPINION

This Freedom of Information Act (FOIA) matter is before the Court upon the parties' cross motions for summary judgment. In 1975, plaintiffs requested that defendant Central Intelligence Agency (CIA) furnish documents "pertaining to the investigation not only locally, but nationally, of the controversy in the Serbian Orthodox Church, and more particularly any interference or infiltration of the Yugoslav Government or any of its authorities and agents and their relationship and activities Vis a vis (plaintiffs)."

 In our Memorandum Opinion of July 13, 1978, we granted defendants' motion for summary judgment with respect to 22 of the disputed documents, fifteen of which had been previously released In toto and seven of which were protected from disclosure by exemption 3, 5 U.S.C. § 552(b)(3) and exemption 1, 5 U.S.C. § 552(b)(1).

 After considering defendants' Vaughn itemization of the remaining 63 documents in dispute, we concluded that a determination that these withholdings were justified by exemptions 1, 3 and 6, 5 U.S.C. § 552(b) could not be made by reliance Solely upon defendants' affidavit and itemization as then submitted. With respect to documents withheld under exemption 1, we stated that we were unable to evaluate the justifications advanced by the defendants without more specificity with regard to the "dates of classification, the number of any classifying officer or the portions appropriately classified." Serbian Eastern Orthodox Diocese for the United States of America and Canada v. C.I.A., No. 77-1412 at 9 (D.D.C. July 13, 1978). With respect to exemption 3, we noted that defendants had provided only conclusory justifications for withholding documents. With respect to exemption 6, we noted that defendants' affidavit presented no basis for balancing the competing considerations in an effort to determine whether disclosure constituted a "clearly unwarranted invasion of privacy." See Department of Air Force v. Rose, 425 U.S. 352, 373, 96 S. Ct. 1592, 48 L. Ed. 2d 11 (1976). Accordingly, in our Memorandum Opinion of July 13, 1978, we directed defendants to submit a more detailed Vaughn v. Rosen affidavit.

 On August 24, 1978, defendants, pursuant to our directive, supplemented their Vaughn affidavit with an extensive supplementary document index and affidavit (Supplemental Owen Affidavit). In addition, defendants filed copies of those documents remaining in dispute that had been partially released to the plaintiffs.

 Plaintiffs' position may be briefly summarized. Plaintiffs oppose the defendants' motion for summary judgment on the principal ground that defendants' Vaughn itemization is "non-specific, not properly indexed and vague." Plaintiffs also complain that when multiple exemptions are claimed for the same material, the Court is unable to determine which exemptions to apply to specific portions of these documents or whether non-exempt information may be segregable from these documents. Finally, plaintiffs assert that "When an agency cannot go beyond generalities in its affidavit for fear of revealing too much, De novo review requires the court to employ additional techniques such as In camera inspection." The plaintiffs accordingly request that they be given summary judgment or that the Court undertake an In camera review of the disputed documents.

 We first address the plaintiffs' suggestion that De novo review of these documents require that this Court employ "additional techniques, such as In camera inspection." We begin by noting that FOIA decisions involving national security issues have received special attention because of the problems encountered by trial courts, very mindful of their limitations in being able properly to assess matters bearing on national security and being aware of the damaging consequences that may arise from the disclosure of sensitive documents. Recently, however, the District of Columbia Court of Appeals has attempted to clarify the approach to be used while conducting De novo review in the national security context. Ray v. Turner (1978), 190 U.S.App.D.C. 290, 587 F.2d 1187. The Court of Appeals there set forth the following principles as the "salient characteristics" of De novo review in FOIA actions raising national security issues. These principles serve as guidelines in determining the propriety of In camera inspection in the instant case. The Court summarized these "salient characteristics" in the following language:

 
(1) The government has the burden of establishing an exemption. (2) The court must make a de novo determination. (3) In doing this, it must first "accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record." *fn1" (4) Whether and how to conduct an In camera examination of the documents rests in the sound discretion of the court, in national security cases as in all other cases. *fn2"
 
It is clearly established that In camera inspection is not automatic. Nevertheless, to rule for the Government without In camera inspection, the Court must be convinced that the affidavit is sufficiently detailed to indicate that classifications assigned to the documents are reasonable and proper and that the documents logically fall into the categories provided by the asserted exemptions. See Ray v. Turner, supra, at -- -, n.21 587 F.2d at 1194, n.21; Weissman v. CIA, 184 U.S.App.D.C. 117, 122, 565 F.2d 692, 697 (1977). It is necessary to determine, therefore, whether the affidavits and indices submitted by the defendants in this case, coupled with the documents released in part to the plaintiffs, provide this Court with the information required to make a De novo determination. See Ray v. Turner, supra, at -- -, 587 F.2d at 1195. In addressing this issue, it is necessary to examine the disputed documents in light of the qualifying criteria for documents withheld pursuant to exemptions 1, 3, and 6.
 
Exemption 1: Materials "(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."
 
In withholding documents under exemption 1, an agency need show only that proper classification procedures were followed and that by its sufficient description the document logically falls into the category of the exemption indicated. Weissman v. CIA, supra, 184 U.S.App.D.C. at 122, 565 F.2d at 697. The key requirement is that these documents be sufficiently described. See Ray v. Turner, supra, at -- -, n.22, 587 F.2d at 1195, n.22.
 
Defendants rely upon the protection of exemption 1 for portions of thirteen documents. In several instances, defendants declassified documents to make their release possible, segregating and deleting those portions that created the original need to classify the document. The supplemental and original Owen affidavits, coupled with the supplementary index, clearly set forth the procedures used in classifying and declassifying the various documents. Furthermore, the supplementary index explicitly details the substance of the information giving rise to "secret" classification in terms sufficiently specific to determine that such information logically falls within the "secret" classification alleged, yet in terms sufficiently general to avoid revealing the actual content of the information. We are satisfied that the defendants have met their burden of demonstrating that the information withheld pursuant to exemption 1 is properly subject to that exemption's protection.
 
Exemption 3: Materials "specifically exempted from disclosure by statute . . . provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for ...

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