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JAFFE v. CIA

October 14, 1983

Sam and Juene JAFFE, Plaintiffs,
v.
CENTRAL INTELLIGENCE AGENCY, et al., Defendants



The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, District Judge:

 Seven years ago, plaintiffs Sam and Juene Jaffe commenced this proceeding under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1976), seeking all files or records pertaining to them in the possession of the Federal Bureau of Investigation (FBI) and the Central Intelligence Agency (CIA). The government has relied upon several FOIA exemptions pursuant to 5 U.S.C. § 552(b) to support the withholding of various documents and portions thereof: subsection 552(b)(1) -- national security and foreign policy information; (b)(3) -- material specifically exempted by statute; (b)(6) -- information in personnel, medical and similar personal files; (b)(7)(C) -- matters affecting personal privacy in the investigative records context; (b)(7)(D) -- information relating to law enforcement confidential sources; and (b)(7)(E) -- material which would reveal investigative procedures and techniques.

 The volume of relevant documents is unusually large. This fact, together with the FBI's reluctant and sluggish response during this litigation in processing the materials, has caused needless rounds of affidavit and document review in an unnecessarily protracted proceeding. On numerous occasions the FBI's submissions have been woefully inadequate. At present the Court has under consideration a number of public Vaughn1 affidavits, together with several comprehensive affidavits and unredacted copies of the actual documents for in camera inspection. The matter is now presented on cross-motions for summary judgment. The Jaffes contend that the FBI has still not demonstrated the adequacy of its search and the legal sufficiency of its exemption claims. The FBI contends that through its most recent set of affidavits, especially the in camera submissions, it has sustained its burden under FOIA.

 For the reasons set out below the Court determines that summary judgment should be entered for the government. The Court also determines that the Jaffes are entitled to counsel fees because they succeeded in securing numerous documents which were wrongfully withheld without reasonable justification and because they were put to unnecessary expenditure of resources, time and effort due to the government's intransigence.

 BACKGROUND

 Plaintiff Sam Jaffe is a journalist and media correspondent who held a variety of prominent positions in his field, including a post as the Moscow correspondent for the Columbia Broadcasting System (CBS). His position in Russia drew the interest of intelligence-gathering agencies of the United States, and Jaffe apparently provided information to American agencies on a confidential basis. That relationship spanned a number of years. At some point, however, the connection soured when the suspicion developed that Jaffe had actually become an agent for a foreign intelligence service. *fn2"

 Concerned that Jaffe's reputation may have been maliciously and falsely impugned, the Jaffes submitted FOIA requests in March 1975 to the Justice Department and the CIA for any records pertaining to themselves. The FBI and CIA processed the requests, retrieving those documents which were responsive to the inquiry and then analyzing the materials to determine whether they were exempt from release in whole or in part. After the FBI and CIA determined that certain documents were exempt, the plaintiffs sought judicial relief by filing the complaint in this proceeding on July 27, 1976, challenging the propriety of the defendants' withholding determinations.

 The years after the filing of the complaint and an initial motion of the plaintiffs for Vaughn indexing were consumed by disputes over the adequacy of the withholding justifications advanced by the FBI. The first six rounds of justifications, spanning three years, included some two dozen affidavits, as described in the Memorandum Opinion of this Court entered on August 11, 1981, in response to an FBI motion to extend the period for its compliance with an Order for release of information and justification. Jaffe v. Central Intelligence Agency, 520 F. Supp. 124 (D.D.C. 1981). The six rounds of justifications were characterized by the FBI's consistent inability to produce satisfactory explanations for its unacceptable conduct in assessing the documents and making FOIA withholding determinations. On one such occasion the parties informally agreed that certain affidavits were inadequate. On others, this Court and a United States Magistrate, upon careful review of the record in this proceeding, concluded that the government submissions were grossly insufficient. The government's justifications were found to suffer from serious omissions, inconsistencies, and extreme vagueness. Id. at 125. Consequently, on each occasion the court required the government to provide justifications which were more particularized and accurate. Only later, as a result of these subsequent reviews, did the government release additional information which it had wrongfully withheld.

 A critical point in this proceeding came with the government's response to a Memorandum Opinion entered by the Court in June 1981. Jaffe v. Central Intelligence Agency, 516 F. Supp. 576 (D.D.C. 1981). At that time the Court determined that the FBI had again misapplied several FOIA exemptions and accordingly directed the submission of an additional round of justifications. *fn3"

 The matter was further complicated, however, by the expansion of the scope of the proceeding to include additional FBI materials which had not been previously processed. The FBI's initial retrieval encompassed FBI Headquarters documents. However, in the Spring of 1981 the scope of the request was expanded to include documents located in FBI Field Offices in New York, Washington, San Francisco and Baltimore, as well as overseas offices known as "Legats", in Ottawa, Hong Kong and Moscow. Id. at 587.

 Not surprisingly in light of the history of deficient justifications which cluttered the record, compliance with the June 1981 Opinion required that the FBI reprocess all of the previously withheld Headquarters documents. The FBI released additional information to the plaintiffs and then submitted affidavits in the fall of 1981 for the public record and for in camera inspection together with unredacted copies of all responsive documents for the Court's review. *fn4"

 In this regard, the plaintiffs also advance the proposition that their counsel be permitted to participate in the in camera examination to assist the Court and to suggest means through which the various deficiencies in the FBI's affidavits might be overcome. Although the issue of a requester's participation in in camera proceedings in person or through counsel has not been fully resolved, see, e.g., Arieff v. U.S. Department of the Navy, 229 U.S. App. D.C. 430, 712 F.2d 1462, 1470 n. 2 (D.C.Cir.1983), the Court takes the position in this case that the various affidavits and documents before it are sufficient to form a basis for this decision. Particularly given the sensitive nature of some of the national security material, the risks and problems attendant to such a procedure counsel against permitting plaintiff's participation. Salisbury v. United States, 223 U.S. App. D.C. 243, 690 F.2d 966, 973-74 n. 3 (D.C.Cir. 1982); Hayden v. NSA/Central Security Service, 197 U.S. App. D.C. 224, 608 F.2d 1381, 1386 (D.C.Cir. 1979), cert. denied, 446 U.S. 937, 100 S. Ct. 2156, 64 L. Ed. 2d 790 (1980). In opposition, the government has renewed an earlier dispositive motion; it relies principally on its most recent in camera filings.

 ANALYSIS

 Having summarized briefly the background to this litigation, the Court now proceeds to a two-part analysis of the government's exemption claims. In Part A the Court reviews the general nature and sufficiency of the public and in camera affidavits in light of the criticisms levied by the plaintiffs. In Part B the Court assesses the merits of the government's exemption claims.

 A.

 To further the broad policy of disclosure embodied in FOIA, in every action under the Act the burden is on the government to demonstrate the validity of its determination that requested material must be withheld. 5 U.S.C. § 552(a)(4)(B). Rather than permitting a mere blanket assertion of withholding authority by an agency, that burden requires a showing that withheld material clearly falls within the parameters of one of the seven FOIA exemptions codified at 5 U.S.C. § 552(b). In this proceeding, the government has submitted public and in camera affidavits. Although FOIA proceedings are preferably resolved on the basis of affidavits alone, see Church of Scientology of California, Inc. v. Turner, 662 F.2d 784, 785 n. 1 (D.C.Cir. 1980), FOIA empowers courts to review withheld materials in camera where certain factors are present. 5 U.S.C. § 552(a)(4)(B). Given the history of this case, its complexity, and the sensitive nature of much of the information, those factors are present here. See Environmental Protection Agency v. Mink, 410 U.S. 73, 93-94, 93 S. Ct. 827, 838-839, 35 L. Ed. 2d 119 (1973). The Court has accordingly had the benefit of in camera inspection of unredacted copies of the withheld documents for review in conjunction with the in camera and public affidavits.

 The plaintiffs have directed numerous criticisms at the government's supporting documents, necessarily focusing on the sufficiency of the public Vaughn affidavits. Summarized, plaintiffs' criticisms focus principally upon an alleged lack of specificity in the FBI's affidavits regarding identification of particular documents and regarding the basis for withholding information under the various exemptions.

 The plaintiffs' criticisms stress the method of analysis employed by the government in support of its exemption claims. That analysis generally entailed categorization of the withheld materials within certain exemptions and codification of the documents correspondingly. Plaintiffs contend that the categories developed by the FBI are too broad and that the affidavits are accordingly too general to form the foundation for a reasoned judgment that each withholding determination was valid. Plaintiffs argue that the FBI's public affidavits in many instances ...


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