The opinion of the court was delivered by: PRATT
This action is before this court on remand from the United States Court of Appeals for the District of Columbia for reconsideration of claims by the Central Intelligence Agency (CIA) that nine documents may be withheld in their entirety or in part from disclosure under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA).
In accordance with the remand from the Court of Appeals, we have instructed the CIA to file a new supplemental affidavit containing a more specific index and itemized justification of the withheld documents and portions of documents. We have also permitted the plaintiffs, Ellen L. Ray and William H. Schaap, to conduct a limited amount of discovery to assist in our review of the exemptions claimed by the CIA. Finally, we have directed the CIA to submit the nine documents to us for an In camera inspection. Plaintiffs have filed a motion for summary judgment which challenges the adequacy of the CIA's compliance with the FOIA standards set by the Court of Appeals. The defendants have filed a cross-motion for summary judgment. After our In camera inspection of these documents in conjunction with a supplemental CIA affidavit and one set of interrogatories answered by the CIA, we conclude that the CIA has properly determined that withheld documents and portions of documents are exempt from disclosure under the FOIA. We accordingly grant defendants' motion for summary judgment.
Exemption 1 exempts material that has in fact been properly classified under criteria established by an Executive order as material that should be kept secret in the interest of national defense or foreign policy.
Executive Order 11652 and the National Security Council directive of May 17, 1972
contain the applicable substantive and procedural criteria for the withheld documents in this litigation. Executive Order 11652 authorizes the withholding of documents if the "unauthorized disclosure (of these documents) could reasonably be expected to cause damage to the national security." A document which satisfies this substantive criterion must also satisfy procedural criteria including (1) classification by one possessing the requisite authority; (2) classification at the proper time; (3) classification by conspicuous markings; (4) identification and segregation of non-classified segments; and (5) the existence of procedures for review and declassification. See Ray v. Turner, 190 U.S.App.D.C. 290, 320-21, 587 F.2d 1187, 1217-18, concurring opinion of Chief Judge Wright (1978); Halperin v. Department of State, 184 U.S.App.D.C. 124, 565 F.2d 699 (1977).
Exemption 3 of the FOIA applies to matters which are "specifically exempted from disclosure by statute," but only if the exemption statute either leaves no room for agency discretion to determine whether the information is to be disclosed or if the exemption statute specifies " "particular criteria for withholding or particular types of matters to be withheld.' 5 U.S.C. § 552(b) (3) (1976)."
Ray v. Turner, supra, concurring opinion of Chief Judge Wright, 190 U.S.App.D.C. at 322, 587 F.2d at 1219. In the context of this Exemption, there are two applicable statutes which provide substantive criteria for determining whether document segments may be withheld. Under 50 U.S.C. § 403(d)(3), the Director of the CIA is authorized to protect "intelligence sources and methods from unauthorized disclosure." Under 50 U.S.C. § 403g, the CIA is exempt from any law "requiring "disclosure of the organizations, functions, names, official titles, salaries, or numbers of personnel employed by the Agency.' " The Court of Appeals has determined that both of these statutes fall within the coverage of Exemption 3. Ray v. Turner, supra, concurring opinion of Chief Judge Wright, 190 U.S.App.D.C. at 322-23, 587 F.2d at 1219-20; Goland v. CIA, No. 76-1800 (D.C.Cir. May 23, 1978).
The CIA has claimed that Exemption 6 of the FOIA is applicable to one of the documents, document 10, at issue in this litigation. There is a two-pronged test applicable to determine whether a document or document segment may be withheld under the authority of Exemption 6. First, the document must be part of a "personnel" file, a "medical" file, or a "similar" type of file. 5 U.S.C. § 552(b)(6). Second, the disclosure of such a file must constitute a "clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6).
A document segment satisfies the first part of this test if information about the identity of an individual may be disclosed by the release of a document. See Department of the Air Force v. Rose, 425 U.S. 352, 371, 96 S. Ct. 1592, 48 L. Ed. 2d 11 (1976). The second part of this test is met if the privacy interest of the individual outweighs the public's right to governmental information. Department of the Air Force v. Rose, supra, at 370-82, 96 S. Ct. 1592; Getman v. NLRB, 146 U.S.App.D.C. 209, 450 F.2d 670, 673-77 (1971).
D. Exemptions 7(C) and 7(F)
One portion of document 10 has been withheld under both Exemption 7(C)
and Exemption 7(F)
of the FOIA. These Exemptions, like Exemption 6, contain a two-part test for determining whether document segments may be withheld. For both Exemptions, documents may only be withheld if they can first be classified as "investigatory records compiled for law enforcement purposes." 5 U.S.C. § 552(b)(7). This test is met if the document focuses with "special intensity upon a particular party" for the purpose of determining whether a law enforcement proceeding should be brought. Center for National Policy Review on Race and Urban Policy Issues v. Weinberger, 163 U.S.App.D.C. 368, 502 F.2d 370, 373 (1974). See also Rural Housing Alliance v. United States Department of Agriculture, 162 U.S.App.D.C. 122, 498 F.2d 73, 79-82, Supplemented, 167 U.S.App.D.C. 345, 511 F.2d 1347 (1974). In order to meet the second part of the test for Exemption 7(C), the release of a document must result in "an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). This part of the test is virtually identical to the test for Exemption 6. See discussion at section I., C., Supra. In order to meet the second part of the test for Exemption 7(F), the release of a document must result in an unreasonable risk to the life or physical safety of law enforcement personnel. 5 U.S.C. § 552(b)(7)(F).
II. Coverage of FOIA Exemptions
Before conducting our In camera inspection of the nine documents, we first consider whether eight general types of information which the CIA alleges are contained in these documents fall ...