The opinion of the court was delivered by: ROBINSON, JR.
This case arises under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, et seq. (1976). Plaintiffs challenge the withholding of various documents by a number of government agencies to whom FOIA requests were submitted during the months of August through October, 1979. Although a great amount of information was released to plaintiffs pursuant to these requests, hundreds of pages of documents have been withheld in part or in full under Exemptions 1, 3, 4, 5, 6, 7(A), 7(C) and 7(D). 5 U.S.C. § 552(b) 1, 3, 4, 5, 6, 7(A), 7(C), and 7(D) (1976).
After conducting a de novo review of the agency action herein pursuant to the standards established by the Court of Appeals,
this Court concludes that, with minor exceptions, the defendants have exercised the various exemptions from disclosure properly, and in so doing have provided a sufficiently detailed index and description of the documents in question to satisfy the requirements of Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974).
A. Exemption 1, 5 U.S.C. § 552(b)(1).
Exemption 1 protects from mandatory disclosure all matters which are:
(A) specifically authorized under criteria established by an Executive Order to be kept secret in the interests of national defense or foreign policy and (B) are in fact properly classified pursuant to such an Executive Order.
To support an Exemption 1 claim, the agency has the burden of demonstrating that the document in question was properly classified under both the procedural and substantive criteria contained in the governing Executive Order. Lesar v. United States Department of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472, 483 (D.C.Cir.1980). In addition, "substantial weight" is to be accorded the agency affidavits in the context of Exemption 1, since it has been recognized that the Executive departments responsible for national defense and foreign policy matters have "unique insight" into potential adverse consequences of disclosure.
Indeed, plaintiffs do not quarrel with the classification, but instead generally assert that there are segregable portions of the reports which contain purely factual data which should be excised and released. However, the Yeates affidavit makes perfectly clear that such portions are in fact not segregable. Each document is described as a "totally integrated intelligence product" of which no part can be released without tending to reveal the nature of the communication as well as the present interception capabilities of the NSA. The release of this information would impose irreparable harm upon the information gathering capability of the NSA since a foreign power might, through access to the information, be able to defeat the interception operation at that location.
In the instant case, the Yeates affidavit is both detailed and specific to the extent that it may be without revealing the protected information. As the Court of Appeals held in Hayden v. National Security Agency, 608 F.2d 1381 (D.C.Cir.1979), the affidavit supplied in the context of Exemption 1:
must provide specific information sufficient to place the document within the exemption category, (and) if this information is not contradicted in the record, and if there is no evidence in the record of agency bad faith, summary judgment is appropriate without in camera review of the documents.
608 F.2d at 1387.
Plaintiffs have presented no evidence of agency bad faith nor have they contradicted, with any degree of certainty, the clear statements made by the NSA in support of its decision to withhold. Bald assertions by the plaintiffs that portions of the reports are segregable cannot support their request for in camera inspection nor will it defeat the CIA's Motion for Summary Judgment. The application of Exemption 1 in this circumstance is well founded; thus, summary judgment in favor of the CIA is appropriate.
B. Exemption 3, 5 U.S.C. § 552(b)(3).
Exemption 3 has been invoked in a number of contexts and in conjunction with various statutes. The exemption provides that disclosure is not required under the FOIA of matters which are:
specifically exempted from disclosure by statute (other than section 552b of this title), provided that such 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....
This exemption has been construed to require the withholding statute to either incorporate a Congressional mandate of confidentiality which is absolute and without exception or alternatively provide a formula or certain criteria for withholding whereby an administrator can determine precisely whether disclosure would pose the hazard that Congress foresaw. American Jewish Congress v. Kreps, 187 U.S. App. D.C. 413, 574 F.2d 624, 628-629 (D.C.Cir.1978). Since Exemption 3 has been utilized in conjunction with a number of withholding statutes, each is treated separately below.
Defendant CIA alternatively relies on Exemption 3 in connection with 18 U.S.C. § 798, 50 U.S.C. § 403(d)(3) and the National Security Act of 1959 (Section 6, Public Law 86-36). Exemption 3 is clearly applicable and vis-a-vis Public Law 86-36 was properly employed.
Section 6(a) of Public Law 86-36 provides that:
(except) as provided in subsection (b) of this section, nothing in this Act or any other law ... shall be construed to require the disclosure of the organization or any function of the National Security Agency, of any information with respect to the activities thereof, or the names, titles, salaries, or number of the persons employed by such agency. (emphasis added).
This statute has already been firmly established as an Exemption 3 statute since it specifies the matters which must be withheld and contains the proper Congressional mandate that confidentiality is absolute and without exception. Hayden v. National Security Agency, 608 F.2d 1381 (D.C.Cir.1979), Founding Church of Scientology v. National Security Agency, 197 U.S. App. D.C. 305, 610 F.2d 824 (D.C.Cir.1979). In Hayden, the Court concluded that Congress was fully aware of the "unique and sensitive activities" of the NSA which require "extreme security measures". 608 F.2d at 1390, citing S.Rep.No.284, 86th Cong., 1st Sess. 3 (1959). The Court further held that the showing which the agency must make with respect to the application of Exemption 3 is factually less demanding than that which is required under Exemption 1, and that for Exemption 3's purpose, the initial affidavit describing how the release of the reports would reveal the nature of the NSA's intelligence activity was fully sufficient. Such disclosure is expressly prohibited by Public Law 86-36 and therefore the FOIA has no application.
In the instant case, the documents in question are of the same nature as those involved in Hayden, and that Court's application of Public Law 86-36 is therefore controlling. The Yeates affidavit states in no uncertain terms that disclosure of these documents would reveal information relating to the "activities" of the NSA, thus, summary judgment is appropriate for the CIA on the alternative grounds of Exemption 3.
2. Internal Revenue Code § 6103(a).
The Internal Revenue Service (IRS) has alleged that four documents are, in part, exempt from disclosure through Exemption 3 in conjunction with Internal Revenue Code § 6103(a). Section 6103(a) provides that:
(No) officer or employee of the United States ... shall disclose any return information obtained by him in any manner in connection with his service as an officer or an employee or otherwise under the provisions of this section.
Plaintiffs have not contested the application of this withholding statute, and it is apparent from the affidavit provided by the IRS that the names of third parties have been properly withheld. See Neufeld v. Internal Revenue Service, 646 F.2d 661 (D.C.Cir.1981) (return information includes any information that directly or indirectly identifies a particular taxpayer). Summary judgment is appropriate with respect to those portions of documents which are withheld as "return information" under IRC § 6103(a).
3. Rule 6(e), Federal Rules of Criminal Procedure.
Initially, the court must determine whether the withheld documents are grand jury material, and if so whether any exception would authorize disclosure. If an exception to the general ban on disclosure is applicable, the court must conduct a balancing test, weighing the interest in continued secrecy against the particular interest in disclosure. See, Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S. Ct. 1667, 60 L. Ed. 2d 156 (1979). Otherwise, the inquiry ends when the court concludes that the documents do in fact reflect matters occurring before the grand jury, and disclosure is prohibited. In re Grand Jury Impanelled October 2, 1978, 510 F. Supp. 112, 114 (D.D.C.1981).
Plaintiffs claim that many of the documents withheld are not within the scope of Rule 6(e) because they do not reflect matters which occurred before the grand jury. A related contention is that the defendants have not described the documents withheld in a manner sufficient to satisfy the Vaughn requirement. Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974). Also, Plaintiffs contend that even if the documents fall within the confines of Rule 6(e), the exception which allows disclosure "when so directed by a court preliminarily to or in connection with a judicial proceeding" is applicable. Rule 6(e)(3)(C)(i). It is alleged that the information withheld must be obtained to prevent injustice in two civil actions now pending in Massachusetts and Florida.
On November 4, 1974, Judge Charles Scott of the United States District Court for the Middle District of Florida (who presided over the grand jury investigation from which the sought-after documents were produced) authorized the United States Attorney to disclose grand jury material to agents and employees of the Customs Service and the Federal Energy Administration so they might assist the government in its efforts with respect to the grand jury investigation. The order authorizing disclosure specifically provided that the material "shall remain at all times under the aegis of the attorneys for the government." A similar order was issued with respect to the IRS on December 2, 1974.
Both the Customs Service and the IRS have withheld portions of documents under Rule 6(e) which contain information that was made available to them under the respective court orders. Given the wording of the orders as well as the context in which they were issued, it is evident that this information is material which directly arose from the grand jury investigation and is therefore expressly protected from further disclosure by that same order which provided access thereto. Defendants Custom Service and IRS have properly classified these documents as grand jury material.
The EOUSA has withheld a large number of documents or portions thereof under Exemption 3 in conjunction with Rule 6(e). Plaintiffs contend generally that many of the documents are not in fact grand jury material but instead are "letters, comments or other data which allegedly have some connection with grand jury material...." Plaintiff's interpretation of the scope of Rule 6(e)"s protection is too narrow. The interests of secrecy prevent not only disclosure of transcripts and documents which were directly involved in the investigatory process, but of all information "which would reveal the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of the jurors and the like." Fund for Constitutional Government v. National Archives and Records Service, 211 U.S. App. D.C. 267, 656 F.2d 856 (D.C.Cir.1981), Securities and Exchange Commission v. Dresser Industries, 202 U.S. App. D.C. 345, 628 F.2d 1368, 1382 (D.C.Cir.1980), cert. denied, 449 U.S. 993, 101 S. Ct. 529, 66 L. Ed. 2d 289 (1980). Thus, Rule 6(e) embodies a broad sweeping policy of preserving the secrecy of grand jury material regardless of the substance in which such material is contained.
The segments withheld by the EOUSA contain information which would identify the names of actual or potential witnesses; federal employees or agencies who had access to grand jury material; parties whose records were subpoenaed before the grand jury; the criminal violations which were under consideration; documents which were subpoenaed and/or presented to the grand jury; grand jury pleadings; considerations concerning the granting of witness immunity to certain witnesses; transcripts of grand jury testimony; and the substance of handwritten notes which discuss strategy, planning or specific occurrences before the grand jury. The Nellor affidavit demonstrates that the EOUSA carefully considered each and ...