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KANTER v. DEPARTMENT OF STATE

July 25, 1979

BURTON W. KANTER, Plaintiff,
v.
DEPARTMENT OF STATE, Defendant.



The opinion of the court was delivered by: OBERDORFER

MEMORANDUM

Plaintiff brings this suit to compel disclosure of certain documents under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552.

 Plaintiff's FOIA request concerns complaints made by the government of the Bahamas regarding an Internal Revenue Service ("IRS") investigation of American taxpayers' use of the Department of State to release all records relating to "the filing of a protest by the government of the Bahamas regarding the attempts by United States agents to suborn the loyalty of Bahamian subjects." See Exhibit A to Plaintiff's Complaint (Jan. 17, 1978).

 Defendant has identified twenty-two documents responsive to plaintiff's request. The Department initially released seven of these documents and withheld the remainder in whole or in part, claiming applicability of various exemptions under FOIA. Upon further review by defendant's "Committee on Classification Policy," two more documents were released to plaintiff. The documents were reviewed a final time early this year pursuant to Executive Order 12065, *fn1" and portions of seven of the remaining thirteen documents were disclosed.

 I.

 On June 20, 1978, defendant moved for summary judgment. In support of its motion, it filed an affidavit by John Bushnell that described the withheld materials and listed the FOIA exemptions claimed for the undisclosed documents. Plaintiff opposed the motion, arguing that neither Bushnell's affidavit nor defendant's points and authorities established the applicability of any FOIA exemptions. Plaintiff then moved for In camera inspection of the documents. The Department of State resisted this motion and submitted an additional affidavit to justify nondisclosure of the documents in question.

 On December 5, 1978, the Court filed a Memorandum and Order that granted plaintiff's request for In camera inspection of the disputed documents. The Court noted that the Bushnell affidavit was insufficiently detailed to justify application of the (b)(1) national security exemption to nine of the withheld documents. In reaching this conclusion the Court relied on the recent Court of Appeals opinion in Ray v. Turner, 190 U.S.App.D.C. 290, 587 F.2d 1187 (1978), which outlined the standards of review for claimed (b)(1) exemptions. The court also requested delivery of those documents for which exemptions (b)(5) and (b)(7) were claimed; the court recognized the probable applicability of those exemptions, but it demanded In camera review to insure that defendant had disclosed all non-exempt, segregable portions of the documents.

 Defendant subsequently filed a public affidavit of Viron Vaky, further describing those materials claimed to be exempt under (b)(1). Defendant also submitted an In camera affidavit detailing the national security concerns related to release of the disputed documents; it submitted the documents themselves In camera, pursuant to the court's direction; and it participated in an In camera conference at which the Court probed defendant's justification for non-disclosure of the documents.

 Finally, on May 31, 1979, the Court ordered defendant to comply with § 3-303 of Executive Order 12065. That provision requires that officials who are reviewing documents for possible declassification or FOIA release must, in some cases, determine "whether the public interest in disclosure outweighs the damage to national security that might reasonably be expected from disclosure." *fn2" Defendant responded with a supplemental affidavit by Viron Vaky in which Mr. Vaky confirmed that he had balanced the public interest against the damage to national security and found that the documents still at issue in this litigation should not be disclosed. *fn3" See Affidavit of Viron Vaky (July 2, 1979).

 II.

 Defendant primarily relies on FOIA exemption (b)(1) to withhold requested documents from the plaintiff. Defendant specifically alleges applicability of (b)(1) to nine of the thirteen documents that have been withheld in whole or in part. *fn4"

 After careful review of the relevant legal standards, and after close scrutiny of defendant's affidavits, and of the documents themselves, the Court finds that (b)(1) properly exempts the materials in question from release under FOIA.

 A. The (b)(1) Exemption

 5 U.S.C. § 552(b)(1) states that FOIA disclosure requirements do not apply to matters that are:

 As the test of the exemption makes clear, the classification scheme established pursuant to an Executive Order is the starting point for determining whether (b)(1) applies. The Court must analyze whether the documents in question fall within the classification categories of the relevant Executive Order, and whether the information is in fact "properly classified" under the Order. *fn5" In making this determination, the Court acts De novo; it does not give undue deference to agency decisionmaking, although it may acknowledge the agency's "unique insights into what adverse ...


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