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AGEE v. CIA

July 17, 1981

Philip AGEE, Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY, Federal Bureau of Investigation, National Security Agency, Department of State, Department of Justice, Defendants



The opinion of the court was delivered by: GESELL

MEMORANDUM

This Memorandum resolves the Central Intelligence Agency (CIA) aspect of this Freedom of Information Act suit which involves several sensitive agencies. *fn1"

 Agee, a former CIA official residing in Germany, requested through his attorney access to and copies of all files and records in the possession of the CIA pertaining to, referring to, or in any way related to himself. This request has necessitated expensive and time-consuming documentary retrieval and analysis by numerous CIA personnel. The CIA has located approximately 8,699 CIA documents responsive to Agee's request. The Agency has refused to release 8,175 documents in their entirety, and released most of the remainder only in part, claiming exemption under sections (b)(1), (b)(3), (b)(5) and (b)(6) of the Freedom of Information Act, 5 U.S.C. § 552 (1976).

 The CIA submitted public and in camera affidavits to support its claim of exemption. Motions were then filed by both sides and issues were briefed. In addition, the Court has conducted a random in camera review of the documents. This review, which occurred mainly at CIA headquarters because of the volume and sensitivity of the material, was designed to inspect examples of documents in all categories, to explore special situations reflected in the public filing, and to test the practicability of further indexing, the possibility of segregation and, of course, the validity of the method and standards used by the Agency in designating material for exemption. The matter is now ripe for decision.

 Agee's request, in effect, sought the entire record of his employment, including covers arranged and missions assigned, and, more significantly, full documentation of an extensive, on-going counterintelligence effort which the CIA mounted against Agee following his resignation. The CIA began this investigation because of clear indications that Agee had embarked on a deliberate program to disparage the Agency by revealing sensitive information and compromising agents still active in the field, all in breach of his employment contract. No purpose would be served by elaborating on the details of Agee's post-resignation conduct because no basis exists under FOIA for differentiating between applicants on the basis of their character or motives. *fn2" See Moorefield v. United States Secret Service, 611 F.2d 1021 (5th Cir. 1980).

 Understandably, the Agency has sought to protect its sources of information, its counterintelligence methods and specific information relating to its day-to-day efforts to thwart Agee's persistent campaign directed against it. In opposing disclosure the Agency relies primarily on exemption (b)(1), which covers material classified pursuant to an Executive Order (in this case Executive Order 12065, 43 Fed.Reg. 28,949 (1978)) and on exemption (b)(3), which exempts information barred from disclosure by other statutes (in this case the National Security Act of 1947, 50 U.S.C. § 403(d)(3) (1976), and the Central Intelligence Act of 1949, 50 U.S.C. § 403g (1976)). A few documents are also claimed to be exempt either in whole or in part under (b)(5) or (b) (6).

 Vaughn v. Rosen Index

 As a threshold matter, Agee challenges the sufficiency of the index supplied by the CIA. Rather than prepare a traditional index as outlined in Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C.Cir.1973), the Agency has provided public affidavits indicating why the papers withheld are believed to be protected under the exemptions claimed. In addition, as to each document withheld in whole or in part an index is furnished listing one or more of the following categories that are deemed to apply to each individual document:

 
A. Name or other personal identifier of an intelligence source, exemptions (b) (1) and (b)(3).
 
B. Circumstantial information which, in combination with other information, could lead to the identification of an intelligence source, exemptions (b)(1) and (b)(3).
 
C. Information acquired as a consequence of a liaison arrangement with a foreign intelligence or security service with an understanding that the information is to be kept in confidence, exemptions (b)(1) and (b)(3).
 
D. Information revealing the existence of a liaison arrangement with a foreign intelligence or security service which includes an understanding that the existence of the liaison arrangement is to be kept in confidence, exemptions (b)(1) and (b)(3).
 
E. Information confirming the existence of a CIA station in an identified location abroad, exemptions (b)(1) and (b)(3).
 
F. Information identifying a CIA staff employee, exemption (b)(3).
 
G. Information identifying a CIA organizational component, exemption (b)(3).
 
H. A pseudonym or a cryptonym, exemptions (b)(1) and (b)(3).
 
I. Filing instructions and information processing, storage and retrieval markings, exemption (b)(3).
 
J. Information which is currently and properly classified, (e.g., foreign policy related, but not sources and ...

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