The opinion of the court was delivered by: PENN
This is an action filed pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, in which the plaintiff, a member of the United States House of Representatives, seeks to gain access to "all records which relate in any way to the publication of a book, "Chile's Marxist Experiment' authored by Robert Moss, and published in Britain in 1973 by David & Charles, and by Halsted Press and John Wiley & Sons, Inc. in the United States in 1974."
The defendant denied the request, relying upon Executive Order 11652, subsection 102(d)(3) of the National Security Act of 1947, 50 U.S.C. § 403(d)(3), as implemented by Section 6 of the Central Intelligence Agency Act of 1949, 50 U.S.C. §§ 403a-403j, and the FOIA, 5 U.S.C. § 552(b)(3).
Plaintiff filed an internal appeal which was denied. Plaintiff thereafter filed this action, having exhausted his administrative remedies.
The case is now before the Court on cross motions for summary judgment.
The defendant asserts that the information is exempt from disclosure pursuant to 5 U.S.C. § 552(b)(1) and (b)(3). Defendant also asserts that, not only is it not required to disclose the requested information, it is not even required to admit or deny that the information exists. In short, the Central Intelligence Agency (CIA) argues that it can neither confirm nor deny any CIA involvement with the book, Chile's Marxist Experiment. It contends that an admission or denial of involvement with the book would itself be a disclosure of classified information.
Plaintiff disputes the agency's argument and contends that the book, if there was an involvement by the CIA, was used for propaganda or other purposes, rather than as an intelligence source or method and that such involvement was therefore not for a purpose authorized by either the National Security Act or the Central Intelligence Act. Based upon this assertion, plaintiff argues that the CIA cannot properly assert either exemption.
This Court has given careful consideration to the arguments of the parties and concludes that plaintiff's argument must fail and that the CIA is entitled to summary judgment.
The agency's first contention is that the information is exempt pursuant to Section 552(b)(1). That section provides that information which is
(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) (is) in fact properly classified pursuant to such Executive order
is exempt from disclosure.
The standard that (the) court must follow in reviewing the agency's classification decision under Executive Order 12065 ... is whether the information fits within one of the seven enumerated categories and whether unauthorized disclosure of the material reasonably could be expected to cause the requisite potential harm.
Id. at 1334. See also Lesar v. U.S. Dept. of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472, 481, (D.C.Cir.1980).
The CIA has the burden of demonstrating the proper classification. Lesar v. U.S. Dept. of Justice, supra, at 481; Hayden v. National Security Agency Central Security Services, 197 U.S.App.D.C. 224, 608 F.2d 1381 (1979), cert. denied 446 U.S. 937, 100 S. Ct. 2156, 64 L. Ed. 2d 790 (1980). The agency may satisfy the burden by filing affidavits that set forth in detail the description of the information and documents, without of course revealing the information sought to be exempted from disclosure, and that give ample justification in support of the claim that the information is exempt from disclosure. "The court must accord "substantial weight' to these affidavits" if the agency files a motion for summary judgment and supports it with affidavits that demonstrate "that the information logically falls within the claimed exemption" (footnote omitted). Baez v. U.S. Dept. of Justice, ...