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HOCH v. CIA

July 30, 1984

Paul HOCH, Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY, Defendant



The opinion of the court was delivered by: ROBINSON

 AUBREY E. ROBINSON, Jr., Chief Judge.

 This is an action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552(a), and arises out of several FOIA requests made by Plaintiff. On various dates beginning with March 17, 1976, Plaintiff requested the following information: (1) materials submitted to the Rockefeller Commission regarding Plaintiff's allegations of CIA activity and the Warren Commission investigation into the assassination of President John F. Kennedy; (2) documents numbered 1083 through 1092 in another FOIA action known as Fensterwald ; (3) all CIA records relating to the interception of letters to or from Lee Harvey Oswald and his wife; (4) documents numbered 1004 through 1129 in Fensterwald ; and (5) document numbered 1087 in Fensterwald (a second request).

 On March 16, 1982, Plaintiff initiated this action after receiving numerous acknowledgments from Defendant that it was processing his request and after making an administrative appeal. In May of 1982, Defendant notified Plaintiff that there were numerous CIA originated documents responsive to Plaintiff's several requests as well as some other documents responsive to the requests which contained information classified by other government agencies and which were being reviewed by those agencies.

 Defendant now contends that all documents in the possession of Defendant that are responsive to Plaintiff's requests and releasable under the FOIA were released to Plaintiff on various dates. The CIA contends that it has withheld from Plaintiff a number of documents and portions of documents on the basis of FOIA exemptions 1, 3, 5, 6, and 7. Based on this contention, the CIA has moved for summary judgment.

 Plaintiff opposes Defendant's motion for summary judgment and contends that the Court cannot make a determination without conducting an in camera inspection of the documents in issue in this action or without allowing Plaintiff to engage in discovery. Plaintiff does not challenge the showing made by the United States Air Force and the National Security Agency. Similarly, Plaintiff does not challenge Defendant's invocation of exemption 7. To the extent discussed below, however, Plaintiff takes issue with the exemption claims asserted by the Federal Bureau of Investigation and the Central Intelligence Agency.

 EXEMPTION 1

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

 
(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy, and (B) are in fact properly classified pursuant to such Executive order.

 Defendant relies on this exemption to withhold information classified pursuant to Executive Order 12065, 43 Fed.Reg. 28949 (July 3, 1978). Shortly before Defendant's papers were filed, however, President Reagan revoked Executive Order 12065 and replaced it with Executive Order 12356, 47 Fed.Reg. 14874 (1982) (effective Aug. 1, 1982). Subsequent to this, the Court ordered Defendant to submit supplemental affidavits from those agencies which provided information to the CIA that was thereafter incorporated into CIA documents. These documents were reviewed for possible declassification under the new Executive Order.

 It should be noted that the substantive classification criteria of Old Executive Order 12065 are all included in the new Executive Order, so that all documents classified under the Old Executive Order would also be classifiable under the new Order. Afshar v. Department of State, 226 U.S. App. D.C. 388, 702 F.2d 1125, 1137-1138 n. 18 (D.C.Cir.1983). The new Order supplements the categories of information that may be classified with several new ones and deletes the requirement of "identifiable damage" to national security. These changes generally tend to increase the amount of classifiable material. Id. at 1129 n. 4. Because the Court is required to apply the Executive Order in effect at the time the government ruled on the FOIA request, Lesar v. United States Department of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472, 480 (D.C.Cir.1980), all of the CIA originated documents in this action shall be reviewed pursuant to Executive Order 12065 and all of the CIA documents which originated with other agencies shall be reviewed pursuant to Executive Order 12356 since this Order was in effect when the other agencies were asked to review them.

 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 (emphasis added) damage to the national security. Exec. Order 12065, § 1-302.

 Under Executive Order 12356, in addition to the categories of information that were classifiable under Executive Order 12065, many more categories have been added. If information falls within one of those categories, it may be classified if an original classification authority further determines that the unauthorized disclosure of the information, either by itself or in the context of other information, reasonably could be expected to cause damage to the national security. Exec.Order 12356, § 1.3(b). In the instant action, Defendant claims that certain FBI and National Security Agency information appearing in CIA documents falls into at least one classification category: information concerning intelligence activities, sources and methods. Exec.Order 12356, § 1.3(a)(4).

 In support of its contention that documents or portions thereof have been properly withheld pursuant to Exemption 1 and Executive Orders 12065 and 12356, Defendant has submitted, in addition to a "document disposition index" which is also relevant to the other exemptions asserted in this action, affidavits of Louis J. Dube, the Information Review Officer for the Director of Operations of the CIA, Gary L. Haegele, Special Agent of the Federal Bureau of Investigation, and Wendell B. White, Acting Director of Policy of the National Security Agency. Because Plaintiff no longer challenges the showing of the National Security Agency, the Court need only address Exemption 1 as it is asserted by the CIA and the FBI.

 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, 93rd Cong., 2d Sess. 12 (1974).

 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 neither 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 contends that the CIA affidavit and the affidavit of the FBI are not entitled to "substantial weight" and that the Court should conduct an in camera inspection of the documents in question or allow Plaintiff to conduct discovery. Plaintiff contends that the affidavits are not entitled to substantial weight because of agency bad faith, the conclusory nature of the affidavits, and because there is contrary evidence in the record.

 Plaintiff points to a number of things as evidence of alleged bad faith on the part of the CIA. He initially contends that the CIA acted in bad faith in processing his FOIA requests. Second, Plaintiff suggests that evidence of bad faith on the part of the CIA in other FOIA actions is suggestive of CIA bad faith in this action. Third, Plaintiff suggests that a decision in 1964 to classify the Zapruder film indicates bad faith on the part of the CIA.

 Plaintiff relies on the case of McGehee v. CIA, 225 U.S. App. D.C. 205, 697 F.2d 1095 (D.C.Cir.1983) in support of his allegation of CIA bad faith in the processing of his FOIA request. In that case, the Court declined to give substantial weight to CIA affidavits because of evidence of bad faith in the processing of plaintiff's request. Factors which persuaded the Court of such bad faith were the processing time of plaintiff's request, defendant failed to take any action on the request until it was ordered to do so by the Court, and the defendant failed to disclose to plaintiff that it was using the date of plaintiff's amended FOIA request as the cut-off date of its search. Id. at 1113. The Court stated:

 
Our conclusion is founded principally on the combination of two facts: First, it took almost two and one-half years before the CIA processed McGehee's reasonably straightforward request; indeed, the agency made no substantive response until compelled to do so by order of the District Court. Second, the CIA failed to disclose the fact that it was using December 22, 1978, as a cut-off date. The cumulative weight of this evidence of bad faith is enough to vitiate the credit to which agency affidavits are ordinarily entitled.

 Id.

 Plaintiff in this action alleges that the evidence shows that although Defendant counseled him to be patient and that it was working on his request, there was no work done on his request between the years 1976-1982. He further argues that not a single document was processed and approved for release until more than four years after the documents were numbered and more than six years after Plaintiff's request. He further contends that none of the documents were approved for release until one month after he filed his complaint in this action and none were released until one month later.

 The Court is convinced that Plaintiff in this action has not presented evidence sufficient for a finding of agency bad faith. In McGehee, the Court made it clear that its finding of bad faith was based upon the cumulative weight of two factors: a long delay and a failure to disclose its date of request cut-off date. In this action, Plaintiff only points to delay. This Circuit has noted that "delay alone cannot be said to indicate an absence of good faith." Goland v. CIA, 197 U.S. App. D.C. 25, 607 F.2d 339, 355 (D.C.Cir.1978), cert. denied, 445 U.S. 927, 100 S. Ct. 1312, 63 L. Ed. 2d 759 (1980). The Court in McGehee did not decide the question whether the long delay by itself, would be evidence of bad faith sufficient to impugn the credibility of the agency's affidavit. McGehee, 697 F.2d at 1113 n. 83.

 The Court finds that the delay in this action is not sufficient to impugn the credibility of the agency's affidavit. The CIA has acknowledged and explained the delays in the Dube affidavit. It blames the delays on the fact that (1) the documents were subject to congressional and presidential commissions which absorbed the limited review staff; (2) the number of people with knowledge of the information has decreased as the Kennedy assassination, as an event, becomes more historic; and (3) the reviewing officers are also current classification officers. Based on these circumstances, the agency affidavit is not called into question because of bad faith in the processing of Plaintiff's request.

 Similarly, Plaintiff's contention that evidence of CIA bad faith in other FOIA litigation is suggestive of bad faith in this action is without merit. Evidence of bad faith in this action is without merit. Evidence of bad faith in other CIA FOIA litigation has no relevance at all to this action. "The sufficiency of the affidavits is not undermined by a mere allegation of agency misrepresentation or bad faith, nor by past agency misconduct in other related cases." Hayden v. National Security Agency/Central Security Service, 608 F.2d at 1387.

 For the same reasons, Plaintiff's suggestion that a decision by the CIA in 1964 to classify the Zapruder film indicates bad faith on the part of the CIA must also fail. Past agency misconduct is not relevant to this action. Hayden, supra. In addition, Dube's affidavit explains that the classification decision, made nearly twenty years ago, was intended to protect the fact that the CIA had a copy of this film and to insure against dissemination outside the agency. The affidavit further states that the film was used only for training purposes, and is no longer in the CIA's possession. Finally, Defendant points out that the fact of the CIA's former ...


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