18, 1982, there was further extensive discussion of these subjects at joint public hearings held by the Subcommittee on International Security and Scientific Affairs and the Subcommittee on International Economic Policy of the House Committee on International Relations. The allegedly verbatim reproduction of the Morgan Memorandum in NuclearFuel was again included in the published transcript of these hearings.
In the course of these proceedings, several members of Congress expressed concerns about the classification of the Morgan Memorandum, to which several Nuclear Regulatory Commissioners responded publically. Moreover, the IAEA itself responded publically to the Memorandum, conceding that many of Morgan's criticisms of nuclear safeguards were well-founded. On March 10, 1982, at the request of Representative Ottinger, Emanuel Morgan replied to the IAEA's comments, and in so doing he publically admitted writing a report on IAEA safeguards. On March 28, 1982, plaintiff filed this action seeking a Court Order directing defendant to disclose the Morgan Memorandum and the other documents withheld from disclosure.
II. THE MORGAN MEMORANDUM MUST BE DISCLOSED.
As defendant has repeatedly argued, the unauthorized publication of a classified document does not require either declassification or disclosure of the document under the Freedom of Information Act. See Miller v. CIA, No. 82-1100 (D.D.C. Dec. 22, 1982), app. filed, No. 83-1108 (Jan. 21, 1983); Murphy v. FBI, 490 F. Supp. 1138 (D.D.C. 1980); Safeway Stores, Inc. v. FTC, 428 F. Supp. 346 (D.D.C. 1977). This is because confirmation or denial that an unauthorized publication is authentic can cause harm beyond that caused through the unauthorized publication itself. See Stein v. United States Department of Justice, 662 F.2d 1245 (7th Cir. 1981); Military Audit Project v. Casey, 211 U.S. App. D.C. 135, 656 F.2d 724 (D.C. Cir. 1981). Accordingly, whether or not the Morgan Memorandum was published verbatim in NuclearFuel is not dispositive of this case, and the Court shall make no comment on that question.
The question that is dispositive is whether the Morgan Memorandum is "properly classified," so that, under 5 U.S.C. § 552(b)(1), it need not be disclosed. The document is classified as "Secret," which requires a determination that "unauthorized disclosure . . . reasonably could be expected to cause serious damage to the national security." Executive Order 12065, § 1-102. There are several possible bases for such a determination. One is that the substance of the document is so sensitive that its disclosure would cause damage to the national security. Another is that confirmation or denial of the existence of the document is so sensitive that its disclosure would cause damage to the national security.
Plaintiff argues, based on the examination of the document by several elected officials and at least one NRC Commissioner, that there is nothing in the substance of the Morgan Memorandum that, if disclosed, would damage national security. This is also consistent with what officials of defendant have said. When asked by Representative Ottinger at one of the Congressional hearings, defendant's chief classification official stated publically that the basis for classification of the Morgan Memorandum was not its content but rather the fact of the Memorandum's existence. Accordingly, the Court concludes that nondisclosure of the Memorandum cannot be premised on a concern that disclosure of its substance will cause damage to the national security.
The critical issue therefore is whether national security will be damaged if it is disclosed that the Memorandum exists. Defendant argues vigorously that confirmation or denial of the existence of the Memorandum will damage national security, citing a long line of cases already noted above. Stein v. United States Department of Justice, 662 F.2d 1245 (7th Cir. 1981); Military Audit Project v. Casey, 211 U.S. App. D.C. 135, 656 F.2d 724 (D.C. Cir. 1981); Phillippi v. CIA, 211 U.S. App. D.C. 95, 655 F.2d 1325 (D.C. Cir. 1981); Knopf v. Colby, 509 F.2d 1362 (4th Cir.), cert. denied, 421 U.S. 992, 44 L. Ed. 2d 482, 95 S. Ct. 1999 (1975). Plaintiff counters, however, that these cases are distinguishable from the instant one because defendant here, unlike the defendants in the cases cited, has not in fact refused to confirm or deny the existence of the relevant document. Plaintiff contends, and the Court agrees, that the Morgan Memorandum unquestionably exists. Morgan himself submitted a sworn affidavit to the Court stating that he wrote a report on IAEA safeguards for Commissioner Gilinsky. The "Morgan Memorandum" was a major topic of discussion at no less than three Congressional hearings. The IAEA, the target of the Memorandum, publically responded to Morgan's criticisms.
Even more importantly, though, defendant itself did not refuse to confirm or deny the existence of the Memorandum in its response to plaintiff's Freedom of Information Act request. Rather, defendant plainly stated that a "report prepared by Emanuel R. Morgan" was responsive to plaintiff's request for the "'Morgan Memorandum' dealing with international safeguards." Furthermore, the statements of both NRC staff and two NRC Commissioners confirmed the existence of the Morgan Memorandum in the course of the public Congressional hearings. Accordingly, the Court concludes that nondisclosure of the Morgan Memorandum cannot be based on defendant's inability to confirm or deny its existence, and that therefore the Memorandum must be disclosed.
III. THE OTHER DOCUMENTS WITHHELD FROM DISCLOSURE NEED NOT BE DISCLOSED.
Although the Court holds that the Morgan Memorandum itself must be disclosed, the same is not true of the other documents withheld from disclosure by the NRC. Plaintiff argues, without citing any basis for its view, that these documents were classified because the Morgan Memorandum was classified, and that therefore these documents should be disclosed if the Morgan Memorandum is disclosed. However, it has never been alleged that the basis for classification of these other documents was that confirmation or denial of their existence would cause damage to the national security. Accordingly, the Court cannot, contrary to plaintiff's contentions, order these documents disclosed on the same ground as the Morgan Memorandum itself.
Indeed, defendant has stated publically that two of the four documents were classified because they contained information obtained through sensitive intelligence and diplomatic channels. As even plaintiff concedes, information exchanges between government intelligence agencies are "historically among the most sensitive of matters." See Plaintiff's Response to Defendant's Notice of Submission of March 25, 1983. Therefore such information is properly exempt from disclosure under the Freedom of Information Act. See Afshar v. Department of State, 702 F.2d 1125, 226 U.S. App. D.C. 388 (1983).
As to the other two documents, defendant has stated publically that these were classified because they explain why the Morgan Memorandum was classified. From this description alone, it is clear that these documents were classified because of concerns about disclosure of their substance, not because disclosure of their existence might damage national security. Although the Court concludes that the Morgan Memorandum itself should not be classified, that does not mean that documents explaining all the reasons behind the decision to classify it must also be disclosed. Plaintiff has offered no other ground for release of these additional documents, and therefore they need not be disclosed.
For all of the foregoing reasons, the Court shall enter an order granting plaintiff's motion for summary judgment as to the Morgan Memorandum, and granting defendant's motion for summary judgment as to the other documents withheld from disclosure. In order to preserve defendant's right of appeal as to the Morgan Memorandum, the Court shall stay disclosure of the Memorandum for 60 days or, if defendant files an appeal, until defendant has exhausted all available avenues of appeal.
For the reasons stated in the accompanying Memorandum Opinion, it is, by the Court, this 19 day of May, 1983,
ORDERED that plaintiff's motion for summary judgment is granted as to the Morgan Memorandum, and it is
FURTHER ORDERED that defendant's motion for summary judgment is granted as to the other documents withheld from disclosure, and it is
FURTHER ORDERED that disclosure of the Morgan Memorandum is stayed for 60 days or, if defendant files an appeal, until defendant has exhausted all available avenues of appeal.