interest of the national defense and . . . are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1). On April 2, 1982, President Reagan issued a new Executive Order on National Security Information, No. 12356, 47 Fed. Reg. 14874. The order became effective on August 1, 1982. Id. at 14884.
In determining whether an agency has withheld information properly pursuant to Exemption 1, the Court must "determine the matter de novo." 5 U.S.C. § 552(a)(4)(B); see Miller v. Casey, 235 U.S. App. D.C. 11, 730 F.2d 773, 776 (D.C. Cir. 1984). Because "'executive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects [sic] might occur as a result of public disclosure, '" however, courts are required to "'accord substantial weight to an agency's affidavit concerning the details of the classified status of a disputed record. '" Salisbury v. United States, 223 U.S. App. D.C. 243, 690 F.2d 966, 970 (D.C. Cir. 1982) (quoting S. Rep. No. 1200, 93d Cong., 2d Sess. 12 (1974) (conference report)), U.S. Code Cong. & Admin. News 1974, pp. 6267, 6290; accord Abbotts v. Nuclear Regulatory Commission, 247 U.S. App. D.C. 114, 766 F.2d 604, 606 (D.C. Cir. 1985).
Order 12356 sets out both substantive and procedural criteria for withholding information. In order to withhold information under Exemption 1 of the FOIA, the government must demonstrate that the information "is in fact, properly classified pursuant to both procedural and substantive criteria" contained in the Executive order. S. Rep. No. 1200, 93d Cong., 2d Sess. 12 (1974); see also Lesar v. U.S. Department of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472, 483 (D.C. Cir. 1980).
Section 1.5 of Executive Order 12356 governs the procedures for classification. It provides that classified documents be marked with the level of classification, the identity of the original classifying official, the agency and office of origin, and the date or event for declassification or the notation "Originating Agency's Determination Required." The affidavit and index of Louis J. Dube states that each document designated as properly classified and withheld under Exemption 1 fully complies with these procedural requirements. Dube Affidavit, § 1.
Executive Order 12356 states that information shall be classified if it concerns one of the ten substantive categories of information set forth in section 1.3 of the order, and if the release of such information "reasonably could be expected to cause damage to national security." Section 1.3(b). Mr. Dube declares in his affidavit that the classified information at issue in this case fulfills the substantive criteria of Executive Order 12356. Dube Affidavit para. 6(a).
The two affidavits of Mr. Dube, along with the extensive Document Disposition Index, clearly describe each document and give specific justifications for nondisclosure. See Halperin v. CIA, 203 U.S. App. D.C. 110, 629 F.2d 144, 148 (D.C. Cir. 1980) (agency decision entitled to great deference where supported by sufficient detail). After conducting its de novo review, the Court is satisfied that the affidavits and the Vaughn Index demonstrate "a logical connection between the information the claimed exemption." Salisbury v. United States, 690 F.2d at 970; Dube Affidavit, §§ I, II; Supplemental Affidavit at para. 4; see also Mead Data Central, Inc. v. United States Department of Air Force, 184 U.S. App. D.C. 350, 566 F.2d 242, 261 (D.C. Cir. 1977).
Summary judgment is in order where an agency's affidavits "'describe the withheld information and the justification for withholding with reasonable specificity, demonstrating a logical connection between the information and the claimed exemption ' . . . and 'are not controverted by either contrary evidence in the record nor by evidence of agency bad faith. '" Abbots v. Nuclear Regulatory Commission, 766 F.2d at 606 (quoting Salisbury v. United States, 690 F.2d at 970 and Military Audit Project v. Casey, 211 U.S. App. D.C. 135, 656 F.2d 724, 738 (D.C. Cir. 1981)); see also Lesar v. United States Department of Justice, 636 F.2d at 481. The record reveals no bad faith on the defendant's part, and the plaintiff has not shown that the information was classified improperly. Accordingly, the Court finds that the CIA has invoked properly Exemption 1 to withhold information specifically authorized under the criteria established by Executive Order 12356.
Exemption 3 of the FOIA exempts from disclosure matters that are
specifically exempted from disclosure by statute . . ., provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.
5 U.S.C. § 552(b)(3). The defendant invokes the protection of Exemption 3 independently of its coextensive claim under Exemption 1. See Gardels v. CIA, 223 U.S. App. D.C. 88, 689 F.2d 1100, 1107 (D.C. Cir. 1982) ("Exemption 3 is independent of Exemption 1 and may be invoked independently.") At the risk of being redundant, the Court addresses the Exemption 3 claim despite having already found that the CIA properly invoked Exemption 1, supra. Exemption 3 casts a much wider net than the more technical Exemption 1 as the Supreme Court's recent decision in CIA v. Sims, 471 U.S. 159, 105 S. Ct. 1881, 85 L. Ed. 2d 173 (1985), makes clear.
The CIA relies on Section 102(d)(3) of the National Security Act of 1947, 50 U.S.C. § 403(d)(3), in invoking Exemption 3. See also Dube Affidavit, §§ I, II, V-VIII. Section 102(d)(3) of the National Security Act directs the Director of the CIA to protect intelligence sources and methods from unauthorized disclosure. It is well settled that section 102(d)(3) of the National Security Act qualifies under Exemption 3. Gardels v. CIA, 689 F.2d at 1103; Military Audit Project v. Casey, 656 F.2d at 736-37 n.39.
The Supreme Court in Sims held that section 102(d)(3) of the National Security Act encompasses all "sources" used by the CIA to collect information related to its "intelligence function," whether or not the "sources" are classified or were even promised confidentiality. "The legislative history of § 102(d)(3) also makes clear that Congress intended to give the Director of Central Intelligence broad power to protect the secrecy and integrity of the intelligence process." CIA v. Sims, U.S. , 105 S. Ct. at 1888.
The plaintiff had relied on a narrower interpretation of section 102(d)(3) in Sims v. Central Intelligence Agency (" Sims I "), 206 U.S. App. D.C. 157, 642 F.2d 562 (D.C. Cir. 1980) and Sims v. Central Intelligence Agency (" Sims II "), 228 U.S. App. D.C. 269, 709 F.2d 95 (D.C. Cir. 1983), cert. granted, 465 U.S. 1078, 104 S. Ct. 1438, 79 L. Ed. 2d 759 (1984). Plaintiff's Opposition to Defendant's Motion for Summary Judgment at 7-9. There, the appeals court ruled that the term "intelligence sources and methods" is limited to individuals and institutions who provide information the CIA needs to perform its intelligence function that the agency could not reasonably expect to obtain without guaranteeing confidentiality to those who provide it. Sims I, 642 F.2d at 571; Sims II, 709 F.2d at 97.
Rejecting that interpretation, the Supreme Court stated:
Section 102(d)(3) does not state . . . that the Director of Central Intelligence is authorized to protect intelligence sources only if such protection is needed to obtain information that otherwise could not be acquired. Nor did Congress state that only confidential or nonpublic intelligence sources are protected. . . . Congress simply and pointedly protected all sources of intelligence that provide, or are engaged to provide, information the Agency needs to perform its statutory duties with respect to foreign intelligence.