Before ROBB, WALD and MIKVA, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia (D.C. Civil No. 78-0330).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE ROBB
This is an appeal from a summary judgment for the Central Intelligence Agency in a Freedom of Information Act , 5 U.S.C. § 552 (1976), suit brought by Nathan Gardels, a student at the University of California (Los Angeles). As required by Local Rule 1-9(h) of the United States District Court for the District of Columbia, the government accompanied its motion for summary judgment with a Statement Of Material Facts As To Which There Is No Genuine Issue. However, because we believe the government's Rule 1-9(h) Statement was insufficient, we reverse the summary judgment on procedural grounds and express no opinion on the merits. A review of the procedural history demonstrates the need for full compliance with the local rule before the District Court may consider disposition of the case by summary judgment.
In May 1976 Gardels requested disclosure of documents pertaining to "all past and present contractual arrangements or agreements and personnel relationships" between the CIA and persons at the eleven campuses of the University of California. (J.A. at 11) A reformulated request dated December 13, 1976, sought disclosure of only those responsive documents retrievable through five named divisions of the CIA *fn1 and those documents gathered for use by the Senate or House Select Committees on Intelligence. The named divisions were selected because they had been mentioned in the Report of the Senate Select Committee *fn2 as having campus contacts.
In letters to Gardels dated July 11, 1977 and November 2, 1977 the CIA released 21 documents in their entirety, 176 documents with deletions, and withheld 12 documents entirely. The released documents dealt with what the CIA characterizes as overt contacts between the Agency and the University of California. In addition, the Agency informed Gardels in the November letter that it could neither confirm nor deny the existence of any additional responsive documents "which reveal any covert CIA connections with or interest in" the University of California. (J.A. at 29) The CIA justified this refusal on the basis of exemptions 13 and 34 in the FOIA, contending first, that such records, if they existed, would be properly classified, and, second, that the fact of the existence or nonexistence of such records pertained to intelligence sources and methods, which the Director of CIA must protect from unauthorized disclosure pursuant to 50 U.S.C. §§ 403(d)(3) and 403g (1976).
Gardels filed suit in the District Court challenging the Agency's decisions to delete portions of documents, to withhold some documents, and to refuse to confirm or deny the existence of other documents. The District Court, following Vaughn v. Rosen, 157 U.S. App. D.C. 340, 347, 484 F.2d 820, 827 (1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974), directed the CIA to file the detailed index and justification for withholding some documents and deleting portions of others. The court also ordered the CIA to file the detailed public affidavit required by Phillippi v. CIA, 178 U.S. App. D.C. 243, 247, 546 F.2d 1009, 1013 (1976), explaining its refusal to confirm or deny the existence of responsive documents pertaining to covert contacts.
The CIA responded by filing the affidavit of F.W.M. Janney, Director of Personnel of the CIA (the Vaughn index), and the affidavit of John F. Blake, then Deputy Director for Administration of the CIA and Chairman of its Information Review Committee (the Phillippi affidavit). The Janney affidavit explained the reasons for deleting portions of the Office of Personnel records that were released to Gardels and for withholding some of the requested documents entirely. These documents are not at issue in this appeal. The Blake affidavit dealt with the reasons why the CIA could neither confirm nor deny the existence of documents pertaining to covert CIA contacts with the University of California. The principal justification offered in the affidavit was that public confirmation of the existence of covert contacts at universities would lead to "active and abrasive campaigns to discover and expose the individuals concerned on at least some of the campuses ...." (J.A. at 38) Alternatively, said Blake, public denial of covert contacts at a particular university could result in the ultimate identification, through a process of elimination, of those universities at which the CIA has covert contacts. It is the accuracy and adequacy of these justifications which Gardels challenges on appeal.
Gardels initially tested the assertions in the Blake affidavit by submitting interrogatories, which Blake answered on behalf of the CIA on August 15, 1978. Shortly thereafter the CIA moved for summary judgment. Attached to the motion for summary judgment were the required Rule 1-9(h) Statement and the affidavits of Gene F. Wilson and Michel Oksenberg. Wilson holds an executive position in the Office of Personnel of the CIA and served as Information and Privacy Coordinator for the Agency from 1975 to 1978. His affidavit dealt with the documents addressed in the earlier Janney affidavit, which are not at issue in this appeal. Oksenberg is currently a staff member of the National Security Council and a professor on leave from the University of Michigan who voluntarily and publicly disclosed that he had had a confidential relationship with the CIA before joining the NSC staff. His affidavit offered an academic's perspective on the likely consequences of disclosing any information that could lead to the identification of other academics who have had confidential relationships with the CIA.
Gardels opposed the CIA's summary judgment motion by filing a Rule 1-9(h) Statement Of Material Facts As To Which There Are Genuine Issues and an affidavit from his attorney pursuant to Rule 56(f), Fed.R.Civ.P., explaining why he thought further discovery was needed. Gardels also filed an affidavit by Morton Halperin in which Halperin discussed his effort to encourage colleges and universities to adopt guidelines "prohibiting or severely restricting covert relations" with the CIA. (J.A. at 72) On October 13, 1978 Gardels filed a second set of interrogatories.
On October 18, 1978 the District Court, sua sponte, ordered the CIA to submit all documents responsive to Gardels' request to the court for in camera inspection. The CIA moved for reconsideration on the ground that this order required it to do what it alleged it could not do confirm or deny the existence of the documents. The District Court denied the motion to reconsider but granted the CIA's motion for certification of the order for immediate interlocutory appeal under 28 U.S.C. § 1292(b) (1976). In a per curiam order this Court indicated the desirability of creating "as complete a public record as is possible" before proceeding with in camera inspection of confidential information and deferred consideration of the application to appeal pending the completion of discovery in the District Court. CIA v. Gardels, No. 78-8090, Order of March 26, 1979. On October 31, 1979 the District Court vacated its in camera inspection order. This court then granted the CIA's motion to withdraw its application for interlocutory appeal.
Following the remand from this court, Gardels' second set of interrogatories was answered by Don I. Wortman, Blake's successor at the CIA, and Gardels deposed Blake, Oksenberg, and Wortman. On January 4, 1980 the District Court granted the CIA's ...