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BEVIS v. DEPARTMENT OF STATE

December 30, 1983

PENNY BEVIS and CENTER FOR NATIONAL SECURITY STUDIES, Plaintiffs,
v.
DEPARTMENT OF STATE, et al., Defendants



The opinion of the court was delivered by: RICHEY

 This Freedom of Information Act ("FOIA") case is similar to one also decided today by this court, Peterzell v. Department of Justice, 576 F. Supp. 1492 (D.C. 1983). Here, plaintiffs originally sought disclosure under 5 U.S.C. § 522 of State Department and Central Intelligence Agency ("CIA") documents produced or substantially relied upon in connection with the preparation of a document and accompanying report signed by Secretary of State George Schultz on January 21, 1983. Those documents certified that sufficient improvements had been made in El Salvador regarding human rights and political and economic reform to justify continued United States military assistance. In addition, plaintiffs asked for Federal Bureau of Investigation ("FBI") documents provided to the Department of State concerning the deaths or disappearances of Americans in El Salvador, including four churchwomen, two representatives of the American Institute for Free Labor Development, Michael Kline, Patricia Cuellar, and John Sullivan.

 Through the parties' admirable informal efforts, the focus of this litigation has been narrowed considerably. Many of the requested records have been released and none of the ten Department of State documents withheld in whole or in part are now at issue. Only one dispute remains concerning a two-sentence deletion, labeled "D-2," in one CIA document. Plaintiffs also continue to object to defendants' withholding of the FBI records pursuant to FOIA Exemptions 1 and 7(A). 5 U.S.C. § 522(b)(1) & (b)(7)(A). For the reasons set forth below, the court concludes that defendants are justified in refusing to release additional documents and therefore grants defendants' motion for summary judgment.

 1. Exemption 1 justifies the withholding of certain FBI records and the CIA deletion

 Exemption 1 protects matters that are "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and . . . are in fact properly classified pursuant to such Executive order . . . ." Due to the particularly sensitive nature of such materials, district courts, while engaging in de novo review, must take into account agencies' special expertise.

 
Summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.
 
If the agency's statements meet this standard, the court is not to conduct a detailed inquiry to decide whether it agrees with the agency's opinion; to do so would violate the principle of affording substantial weight to the expert opinion of the agency.

 Halperin v. CIA, 203 U.S. App. D.C. 110, 629 F.2d 144, 148 (D.C. Cir. 1980) (citations omitted). The Court of Appeals for this Circuit recently elaborated on the rationale for this deferential approach.

 
Due to the "mosaic-like nature of intelligence gathering," Salisbury v. United States, 690 F.2d [966] at 971 [D.C. Cir. 1982], . . . "what may seem trivial to the uninformed[] may appear of great moment to one who has a broad view of the scene and may put the questioned item of information in context," United States v. Marchetti, 466 F.2d 1309, 1318 (4th Cir.), cert. denied, 409 U.S. 1063, 34 L. Ed. 2d 516, 93 S. Ct. 553 . . . (1972).

 McGehee v. Casey, 231 U.S. App. D.C. 99, 718 F.2d 1137, 1149 (D.C. Cir. 1983). See also Gardels v. CIA, 223 U.S. App. D.C. 88, 689 F.2d 1100, 1104-05 (D.C. Cir. 1982); Taylor v. Department of the Army, 221 U.S. App. D.C. 325, 684 F.2d 99, 109 (D.C. Cir. 1982).

 The materials withheld pursuant to Exemption 1 -- FBI records concerning Kline, Cuellar, and Sullivan and Deletion D-2 of the CIA document -- were properly classified pursuant to Executive Order 12356, 47 Fed. Reg. 14,874 (1982). That order applies when information falls within one of the categories in Section 1.3 and its release, by itself or in the context of other information, "reasonably could be expected to cause damage to national security." Section 1.3(b). An agency does not have to prove that harm will occur, only that "the predicted danger is a reasonable expectation . . . ." Halperin, 629 F.2d at 149. Section 1.3(c) creates a presumption that unauthorized disclosure of foreign government information, the identity of a foreign confidential source, or intelligence sources or methods causes damages to the national security.

 The declarations of Special Agent Donald R. MacDonald and Paul L. Marr explain how the withheld material satisfies the requirements of Executive Order 12356. The FBI files on Cuellar, Kline, and Sullivan contain information on the foreign relations and foreign activities of the United States. The disclosure of this material can be reasonably expected to damage national security in a variety of ways. As detailed in the MacDonald declaration, the dangers include diplomatic, economic, and military retaliation against the United States; the identification of the target, scope, and time frame of intelligence gathering activities of the United States, resulting in the curtailment or cessation of these activities; enabling hostile entities to assess United States intelligence gathering activities and devise countermeasures against them; compromising cooperative foreign sources, jeopardizing their safety and curtailing the flow of information; and endangering United States citizens who might be living or traveling in the country involved.

 Although the FBI's description of the withheld material is somewhat generalized, this is inevitable given the secret nature of the information it seeks to protect. See Church of Scientology v. Turner, 213 U.S. App. D.C. 269, 662 F.2d 784, 787 (D.C. Cir. 1980). Upon a review of the redacted documents and the coded Vaughn index, the court finds sufficient specificity to support the agency's determination of nondisclosure.

 Similarly, the court finds that Deletion D-2 is justified. According to the Marr Affidavit, para. ...


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