The opinion of the court was delivered by: PARKER
Plaintiffs Sam and Juene Jaffe have brought this proceeding under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to secure from the Central Intelligence Agency (CIA) and the Department of Justice "all files or records pertaining to Sam and Juene Jaffe."
This case has a long and painful history which will not be detailed at this point. A few facts, however, stand out. Since November 1976, the FBI has, on six separate occasions, offered affidavits justifying the withholding of material from the plaintiffs. A total of eleven affidavits have been filed, many of which incorporate by reference explanations and statements contained in earlier affidavits. As the plaintiffs have noted, wending one's way through this mass of material is a tedious and extremely time-consuming exercise. Nonetheless, by comparing various editions of the Bureau's justifications and descriptions of withheld documents, the plaintiffs have pointed to several examples which they maintain clearly indicate that the agency was not fulfilling its obligation under the FOIA in good faith. As a result, they moved to compel compliance with the Act and for sanctions against the Bureau.
At this point the proceeding was referred to a Magistrate for a report and recommendation on the exemption (b)(1) claims.
After careful review and consideration, the Magistrate concluded that several matters in the public record created substantial doubt as to the good faith of the FBI exemption claims.
He then recommended that the Court undertake an in camera review of the documents. This the Court has done and its conclusions are set out below, first, as to the material withheld in the interest of national defense or foreign policy under section 552(b)(1) (national security or exemption (b) (1) material), and then as to the remaining exemptions.
The bulk of the material not released to the plaintiffs is withheld under exemption (b)(1), 5 U.S.C. § 552(b)(1). The exemption protects materials that are:
(A) specifically authorized under criteria established by Executive Order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive Order.
The affidavit of Special Agent Jerry Graves
provides the most recent agency descriptions and justifications for withholding classified information.
After reviewing the Graves affidavit, the Magistrate concluded that it failed to "provide a sufficient basis on which ... (to) make a responsible de novo ruling on the claims of exemption" and recommended in camera review of the documents.
Plaintiffs objected to this course, arguing that it denied them the opportunity to participate fully in the litigation. Instead they renewed their motion for sanctions and asked that more detailed justifications be ordered. In the interim, plaintiffs also deposed the affiant and have filed the transcript of his testimony with the Court. Based on the Magistrate's recommendation and the entire record, the Court determined that in camera inspection was warranted. The documents were provided to the Court on July 1, 1980.
After examining the documents and then reviewing the Bureau's affidavits and the Graves deposition, the Court determines that there are several grounds for denying the defendants' motion for summary judgment. First, the Graves affidavit has serious shortcomings. As the Magistrate noted, it does not significantly increase the amount of justifying information available to the Court or to the plaintiffs. Second, the agency continues to withhold entire paragraphs as exempt, even when there are reasonably segregable portions of the paragraphs which contain no classified information and which can be released without harm to the national security. Third, the in camera inspection has revealed a number of inconsistent classification and withholding practices which are not explained by anything offered in the Graves affidavit or any of the prior agency submissions. Finally, as in camera inspection suggests and the Graves deposition confirms, Special Agent Graves lacked sufficient background in either counterintelligence investigations or foreign affairs to make the type of informed judgments concerning material in the Jaffe file which he offers as justifications for nondisclosure in his affidavit.
1. As Magistrate Kennedy pointed out, the Graves affidavit fails to provide descriptions of deletions which are sufficiently precise to allow a Court to make the required de novo determinations.
In many cases the additional descriptive material provided is trivial, and in no way describes the substance of what has been withheld. The problem presented by this inadequacy is partially alleviated by the Court's decision to examine the documents in camera. But an inadequate affidavit also reduces the ability of the requester to participate in the litigation, and throughout this proceeding, plaintiffs have been handicapped by the Bureau's refusal to provide adequate descriptions. They have therefore asked that the Bureau be required to file further affidavits. The agency, however, has represented that it cannot provide anything beyond the descriptions and justifications in the Graves affidavit without revealing sensitive material. After reviewing the documents in camera, the Court holds some doubts about the Bureau's position; some material seems susceptible to more detailed description, or even release, without harm.
Nonetheless, a sufficient number of records appear sensitive enough to require that any further descriptions be made in camera.
2. The defendants have employed exemption (b)(1) to withhold entire paragraphs from documents, even where the paragraph includes segregable non-exempt information.
When questioned on this point at his deposition, Graves could provide no written authority for the practice of withholding entire paragraphs. He responded that it was a "general policy" to classify by paragraph, and that he had been directed to do so.
This practice clearly ignores the statutory instruction that an agency release "reasonably segregable" non-exempt material. 5 U.S.C. § 552(b); see Department of the Air Force v. Rose, 425 U.S. 352, 374, 96 S. Ct. 1592, 1605, 48 L. Ed. 2d 11 (1976). Under the plain language of the statute, the reasonably segregable requirement applies to classified information withheld pursuant to exemption (b)(1). Church of Scientology v. Department of the Army, 611 F.2d 738, 743-44 (9th Cir. 1979); Founding Church of Scientology v. Bell, 195 U.S. App. D.C. 363, 603 F.2d 945, 950-51 (D.C.Cir.1979) (rejecting agency efforts to classify and withhold entire documents because they contained some sensitive information). The determination that material should be released therefore turns not on the agency's classification practices, but on whether unclassifiable material may be broken out from sensitive matters and released. Agent Graves specifically testified that this type of segregation and release was possible in this case.
After the deposition, the government filed two affidavits to support its position that classification of entire paragraphs is proper.
While these affidavits, and the authorities they cite, establish that the defendant here is required to classify documents at least down to the paragraph level, they do not rule out classification in smaller units. Considering the FOIA requirement that "reasonably segregable" non-exempt portions be released, the Court questions whether an agency's classification practices and policies can be interposed to withhold non-exempt, unclassified information simply because it appears in the same paragraph as classified information.
More importantly, the Bureau's practice in this case of withholding entire paragraphs on the basis of exemption (b)(1) is seriously undermined by its inconsistent application, both in this proceeding,
as well as in two other FOIA matters currently before this Court.
The material withheld in each instance is usually an individual's name or other identifying information. The agency plainly has no inflexible rule or uniform practice on withholding entire paragraphs when only a portion of that paragraph contains classified material. There is nothing in the record to indicate why less-than-paragraph withholding cannot be used, particularly when only a single name or identifying sentence is classified. Special Agent Graves admitted it was possible in a number of situations, and the agency's own affidavits indicate it is practical. The Bureau will therefore be required to follow consistently the same practice in this proceeding that it has employed intermittently in this and other FOIA actions before this Court and to release to the plaintiffs reasonably segregable, non-exempt portions of those paragraphs currently withheld under exemption (b)(1).
3. The Court's instruction to the defendants to release additional non-exempt material from classified paragraphs should not be interpreted as in any way approving all of the classification decisions. In camera review raised doubts about the propriety of many of these determinations, doubts which the affidavits do little to resolve. The Court will point to but a few examples.
In document 75, the Bureau has classified and withheld the following paragraph on page one:
The Graves affidavit describes the material contained in this paragraph by stating:
the classified information contained in paragraph 1 assesses the information furnished by plaintiff in October 1959, regarding his recent contacts with foreign officials of foreign counterintelligence interest to the FBI.
The same affidavit justifies withholding this information by stating that it "is classified "Confidential' in that it would reveal the FBI's interest in a specific foreign relations matter." The "identifiable damage" that could reasonably be expected to result from release or a more detailed ...