The opinion of the court was delivered by: GESELL
This Freedom of Information Act (FOIA) case is before the Court on cross-motions for summary judgment following remand by Amended Judgment of the United States Court of Appeals dated July 19, 1982, Holy Spirit Assoc. for the Unification of World Christianity v. CIA, 205 U.S. App. D.C. 91, 636 F.2d 838 (D.C. Cir. 1980), cert granted, 455 U.S. 997, 101 S. Ct. 1626, 71 L. Ed. 2d 858 (1982). It concerns communications between the CIA and congressional committees investigating "Koreagate," a matter involving possible threats to national security.
After examining some of the documents this Court originally ruled that a congressional exemption should be granted. The congressional committees had deposited certain congressional files pertaining to the investigation in the CIA's custody under seal and it appeared there was a similar intent to protect the apparently duplicate material, in the possession of the CIA but not under seal, which is at issue in this case. However, the Court of Appeals ruled that absent a more positive indication that Congress intended to retain custody of the duplicates the congressional exemption would not be allowed and remanded to the District Court for consideration of the applicability of other exemptions. Further exemptions have now been claimed by CIA and further public affidavits and briefs have been filed. The Court has also had the benefit of in camera affidavits and has carefully read in camera each of the 39 documents still withheld in order better to understand the issues.
The communications at issue were almost entirely based on classified material. Since the communications were with committees themselves highly conscious of security considerations the Agency mistakenly considered its contacts and deliberations with the committees were fully immune from disclosure. Accordingly, the communications themselves were not originally classified by the CIA and, of course, congressional letters based on classified data could not be classified by Congress. Invoking its statutory authority under the National Security Act of 1947, 50 U.S.C. § 403(d) (3), and Executive Order No. 12356, 47 Fed. Reg. 14874 (1982), the Agency has now classified much of the material withheld. It has done this in good faith to protect methods, sources and the release of information which when read even by one as inexperienced in such matters as the Court demand withholding.
All claims of exemption
under exemptions 1, 3 and 6 are sustained for reasons stated in the in camera affidavit. The Court also finds that the Vaughn v. Rosen affidavits are as explicit and detailed as the circumstances outlined in the in camera affidavits and the text of the disputed papers permit.
Much of the material is also claimed to be exempt under exemption 5. To the extent this claim overlaps material properly claimed to be covered by exemptions 1, 3 and 6 that claim need not be and has not been reviewed. There remain 19 documents, however, which are withheld in whole or in part in reliance solely upon exemption 5.
Two present no difficulty in applying exemption 5. No. 55 is an internal CIA deliberative document partially covered by other appropriate exemptions. No. 61 consists primarily of an internal CIA memorandum prepared for the Deputy Director to aid his briefing of a congressional committee which contains information otherwise exempt, except for attachments. One attachment is No. 4 which for reasons indicated later must be released. Other attachments have been released.
consist of communications to the CIA from the House Select Committee on Intelligence, the House International Relations Committee or the House Standards of Official Conduct Committee. These documents request information from the CIA relating to the congressional inquiries or seek advice concerning the content of proposed committee reports. In some instances portions have been excised where necessary to protect sources or methods of the Agency and withholding has been approved under other exemptions as previously indicated.
The five remaining documents
are purely internal congressional working papers which somehow reached CIA agency files. These reflect the internal workings of Congress. Some few portions have also been withheld under other appropriate exemption claims as previously discussed.
It appears from the remand, although not with certainty, that this Court was directed to consider the constitutional protection of the legislative process under the Speech and Debate Clause, Art. 1, Sec. 6, Cl. 1, at least as to some of the documents. 636 F.2d at 843. The Clerk of the House of Representatives made certain representations in this regard by letter to the CIA dated April 24, 1979, which is attached to this Memorandum, and has filed a memorandum in these remand proceedings as amicus. The parties have briefed the Speech and Debate Clause issue
which the Court now considers as it relates to the 17 documents covered in whole or in part only by a claim for exemption under 5.
These documents are in the custody of the CIA. The Court of Appeals found that there was insufficient proof that Congress intended to maintain control of them. Thus the issue is posed whether the CIA, which communicated with committees of the House on legislative matters clearly comprehended within the Speech and Debate Clause, may, at the request of the Clerk of the House of Representatives, assert that constitutional protection to prevent release of the communications where a member of the general public seeks through FOIA to subject that legislative process to examination.
The Speech and Debate Clause was designed to preserve legislative independence. There can be no dispute that while Congress is performing legislative acts its "deliberative and communicative" functions are protected as a matter of constitutional certainty ...