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KING v. UNITED STATES DOJ

December 12, 1983

Cynthia KING, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant



The opinion of the court was delivered by: ROBINSON

 AUBREY E. ROBINSON, Jr., Chief Judge.

 Plaintiff brings this action pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to compel the production of certain documents. The basis of this action is a request made by Plaintiff to the Department of Justice for access to all Federal Bureau of Investigation (FBI) documents pertaining to Carol King, Plaintiff's deceased mother-in-law. Plaintiff is an author who seeks the information to aid her in writing a book about Carol King. The FBI has released fifteen hundred (1,500) pages of documents responsive to Plaintiff's FOIA request, while withholding 164 pages in their entireties and document portions thereof pursuant to 5 U.S.C. §§ 552(b)(1), (2), (3), (7)(C), (7)(D), and (7)(E). The Immigration and Naturalization Service (INS) has released two pages referred to it by the FBI with portions of the pages withheld pursuant to exemption (7)(D).

 Before the Court is Defendant's Motion for Summary Judgment and Plaintiff's Motion for Summary Judgment, or, in the alternative, to Compel Answers to Interrogatories and Responses to Request for Production of Documents. In addition, Plaintiff in some instances, requests this Court to conduct an in camera inspection of various documents. Defendant moves for summary judgment on the ground that the invocation of each exemption is justified under the law. Plaintiff has withdrawn her opposition to many of the claims of exemption and only continues her opposition with respect to Defendant's invocation of exemptions (1), (7)(C) and (7)(D) insofar as it is invoked to withhold information provided under alleged expressed or implied assurances of confidentiality. For the reasons set forth below, Plaintiff's Motion for Summary Judgment, or, in the alternative, to Compel Answers to Interrogatories and Response to Request for Production of Documents is denied, Plaintiff's request for in camera inspection is denied, and Defendant's Motion for Summary Judgment is granted.

 EXEMPTION 1

 5 U.S.C. § 552(b)(1), exempts from disclosure, records that are:

 Defendant has withheld information pursuant to Executive Order 12065. 3 C.F.R. § 190 (1979), 50 U.S.C. § 401 note. Under Executive Order 12065, information may be considered for classification only if it pertains, inter alia, to foreign government information, intelligence activities, sources, or methods, or foreign relations or foreign activities of the United States. If the information falls within one of these categories, it may be classified only if an original classification authority further determines that its unauthorized disclosure reasonably could be expected to cause at least identifiable damages to the national security. Exec.Order No. 12065, § 1-302.

 In support of its contention that documents or portions thereof have been properly withheld pursuant to exemption 1, Defendant has submitted the joint declaration of FBI Special Agents Richard C. Staver and Walter Scheuplein, Jr. The guidelines for exercise of judicial discretion concerning FOIA requests and claims of the national security exemption under § 552(b)(1) are well settled. Congress has directed the courts to make a de novo review of the agency's classification decision with the burden on the agency to justify non-disclosure. Ray v. Turner, 190 U.S. App. D.C. 290, 587 F.2d 1187, 1191-94 (D.C.Cir.1978); 5 U.S.C. § 552(a)(4)(B) (1976). In conducting this de novo review, however, the courts have also been instructed to give "substantial weight" to the agency affidavits. Weissman v. Central Intelligence Agency, 184 U.S. App. D.C. 117, 565 F.2d 692, 697 n. 10 (D.C.Cir.1977); S.Rep. No. 1200, 93d Cong., 2d Sess. 12 (1974), U.S.Code Cong. & Admin.News 1974, pp. 6267, 6290. Summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than mere conclusory statements, and if the affidavits are not called into question by contradictory evidence in the record or by evidence of agency bad faith. Halperin v. Central Intelligence Agency, 203 U.S. App. D.C. 110, 629 F.2d 144, 148 (D.C.Cir.1980). The affidavits must demonstrate (1) that the agency followed proper classification procedures, and (2) that by its description the documents logically fall within the claimed exemption. Hayden v. National Security Agency, Central Security Service, 197 U.S. App. D.C. 224, 608 F.2d 1381, 1387 (D.C.Cir.1979), cert. denied, 446 U.S. 937, 100 S. Ct. 2156, 64 L. Ed. 2d 790 (1980). The sufficiency of the affidavits is not undermined by a mere allegation of agency misrepresentation or bad faith, nor by past agency misrepresentation in other related cases. Id.

 Although the Court is required to give substantial weight to agency affidavits, the FOIA itself provides for in camera inspections, 5 U.S.C. § 552(a)(4)(B), at the discretion of the Court. In camera proceedings are a last resort, however, particularly in national security situations, Weissman v. Central Intelligence Agency, 565 F.2d at 697; Phillippi v. Central Intelligence Agency, 178 U.S. App. D.C. 243, 546 F.2d 1009, 1013 (D.C.Cir.1976). "It is only where the record is vague or the agency claims too sweeping or suggestive of bad faith that a District Court should conduct an in camera examination to look for segregable non-exempt matter." Weissman v. Central Intelligence Agency, 565 F.2d at 698. Furthermore, as the Court noted in Weissman, "where it is clear from the record that an agency has not exempted whole documents merely because they contained some exempt material, it is unnecessary and often unwise for a court to undertake such an examination." Id.

 Plaintiff in this action does not question Defendant's adherence to the technical procedures for classifying the documents at issue. The core of Plaintiff's argument with regard to Defendant's claims of exemption pursuant to 5 U.S.C. § 552(b)(1) is that Defendant's declaration has failed to show that the information at issue warrants classification "to the exclusion of a reasonable doubt." This very characterization of the issue, however, demonstrates a fundamental misunderstanding of the proper standard for judicial review and ignores § 1-104 of Executive Order 12065 which states that a designation of "confidential" shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause identifiable damage to the national security.

 Plaintiff's suggestion that the Court should elevate its standard of review of the FBI's declaration to the criminal law standard of "beyond a reasonable doubt" and her pronouncement that it "seems unlikely" that certain information could pertain to prospective intelligence sources is in disregard of the precedent already established in this Circuit and the standards of judicial review. While Plaintiff, of course, is entitled to her surmises regarding the subtleties of relationships between foreign governments and the United States and their national security consequences, they are simply "insufficient to undermine the agency's presentation." Gardels v. Central Intelligence Agency, 223 U.S. App. D.C. 88, 689 F.2d 1100, 1106 n. 5 (D.C.Cir.1982).

 If the Court concludes that the agency statements meet the standard of specificity required to justify non-disclosure under exemption 1, the Court is not to conduct a detailed inquiry to decide whether it agrees with the agency's opinion because to do so would violate the principle of affording "substantial weight" to the expert opinion of the agency. Halperin v. ...


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