The opinion of the court was delivered by: OBERDORFER
Defendant voluntarily has responded to plaintiffs' FOIA request by releasing approximately two-thirds of the names of the institutions that were involved.
It is reluctant to disclose the names of the remainder of the cooperating institutions, claiming that they are "intelligence sources" within the meaning of 50 U.S.C. § 403(d)(3) and therefore exempt from disclosure by 5 U.S.C. § 552(b)(3). The defendant also declines to disclose the names of researchers, urging that they also are exempt "intelligence sources." Defendant finally claims that release of the individual names would invade the privacy of the individual researchers in contravention of 5 U.S.C. § 552(b) (6). Plaintiffs counter by alleging that the CIA's withholding of the names of the institutions and researchers is not warranted by FOIA exemptions. The parties have filed cross-motions for summary judgment that support their divergent views.
On April 12, 1979, this Court requested the parties to submit supplemental briefs addressing, Inter alia, the question whether a CIA promise of confidentiality to institutions and/or researchers participating in the MK-ULTRA program might create a contractual right of non-disclosure. The Court further requested the CIA to prepare a draft of a form letter to be sent to each institution and to each researcher whose name remained undisclosed, inquiring whether the addressee relied on any CIA commitment of anonymity in agreeing to participate in the MK-ULTRA program and whether the addressee still wished to remain anonymous.
In an accompanying Memorandum, the Court ruled that defendant had failed to establish that either the institutions or the individual researchers were "intelligence sources" as that term is used in 50 U.S.C. § 403(d)(3) for purposes of exemption under 5 U.S.C. § 552(b)(3). The Court hypothesized that the institutions and researchers might nevertheless have a common law or constitutional right to protection of their anonymity and that enforcement of such a right might have a side-effect beneficial to the public interest: protection of CIA anonymity commitments to persons with whom it established intelligence-related relationships.
The parties responded to these suggestions by briefs and, in the case of the defendant, with an extensive affidavit by CIA Director Stansfield Turner. Neither brief embraces the theory that there is any contract or constitutional right of the institutions or researchers that would bar disclosure of their names, if disclosure were required by FOIA. Indeed, defendant made no showing that the researchers and institutions in this case were given promises of confidentiality. See note 6, Infra. Instead, defendant's brief and Director Turner's affidavit renew the contention that the institutions and individual researchers participating in the project are intelligence sources and that the Director is required by the National Security Act to protect them from disclosure. See 50 U.S.C. § 403(d)(3).
Our Court of Appeals ruled, prior to 1976, that 50 U.S.C. § 403(d)(3), authorizing the Director to "protect . . . intelligence sources and methods," is "precisely the type of statute comprehended by (FOIA's) exemption (b)(3)." Weissman v. CIA, 184 U.S.App.D.C. 117, 120, 565 F.2d 692, 694 (1977). In 1976, however, Congress amended (b)(3) to narrow the class of statutes that qualify under the (b)(3) exemption. Congress was concerned that the Supreme Court's interpretation of the exemption in FAA Administrator v. Robertson, 422 U.S. 255, 95 S. Ct. 2140, 45 L. Ed. 2d 164 (1975), permitted agencies too much discretion in deciding the information that was subject to FOIA disclosure. Accordingly, Congress amended (b)(3) to permit the withholding of information that was exempted under certain statutes, but only if the protecting 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 withholding or refers to particular types of matters to be withheld.
The (b)(3) amendment, as explained in Ray v. Turner, 190 U.S.App.D.C. 290, 308, 587 F.2d 1187, 1191 (1978) (Wright, C. J., concurring), "removed the Robertson loophole by insuring that no agency could rely on an "exempting' statute unless the statute contained clear guidelines upon which a court could rely in reviewing the agency's refusal to disclose requested information."
Despite the 1976 stiffening of (b)(3), our Court of Appeals recently has ruled that the amendment was not intended by Congress "to upset the well-established Exemption 3 status" of 50 U.S.C. § 403(d)(3). Goland v. CIA, 197 U.S.App.D.C. 25, at 36, 607 F.2d 339 at 350 (D.C.Cir. 1978). In that case the Court of Appeals affirmed the withholding of certain classified portions of a 1948 statement by the then CIA Director. The Court emphasized that the passages in question were described in a "non-conclusory and detailed affidavit" that described, among other things, " "intelligence collection and operational devices . . . still utilized' and . . . "basic concepts of intelligence methodology' of which "the essential elements remain viable.' "
Despite Goland's identification of 50 U.S.C. § 403(d)(3) as a statute that qualifies for incorporation under the strict rules of FOIA's newly amended (b) (3) exemption, our Court of Appeals has warned on other occasions that § 403(d) (3)"s qualification under (b)(3) is not automatic. In Ray v. Turner, supra, for example, Chief Judge Wright noted that even though § 403(d)(3) falls under the (b)(3) exemption because it "refers to particular types of matters to be withheld,"
§ 403(d)(3)"s language regarding protection of "intelligence sources and methods" is "potentially quite expansive." Id. 190 U.S.App.D.C. at 321, 587 F.2d at 1220. He concluded that in order to fulfill Congress' intent to close the Robertson loophole, "courts must be particularly careful when scrutinizing claims of exemptions based on such expansive terms." Id.
Applying the learning of Goland, Ray, and The Church of Scientology to the case here, the Court first reaffirms that § 403(d)(3) generally qualifies for incorporation under the (b)(3) exemption because it "refers to particular types of matters to be withheld," Viz. "intelligence sources and methods." The Court also finds, however, that in the peculiar circumstances of this case, § 403(d)(3) does not "refe(r) to particular types of matters to be withheld" with sufficient precision to qualify for FOIA's (b)(3)(B) exemption. Defendant has failed to demonstrate to the Court either by detailed affidavits or by clear guidelines that its decision to treat the MK-ULTRA institutions and researchers as "intelligence sources" under § 403(d)(3) is not an overbroad application of the term, too ...