The opinion of the court was delivered by: GREEN
This matter comes before the Court on the defendant's motion for summary judgment regarding the plaintiff's request for documents under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (1982); the plaintiff's opposition thereto; the defendant's reply; supplemental briefings on the motion by both parties; affidavits submitted by both parties; and the entire record herein. For the reasons stated below, the Court grants the defendant's motion for summary judgment.
The above-styled action arises out of the United States Student Association's ("USSA") 1977 request for disclosure of all records in the possession of the Central Intelligence Agency ("CIA"), concerning the United States National Student Association ("USNSA"), the predecessor organization to the USSA. Defendant's Statement of Material Facts para. 1. From 1952 to 1967 a covert relationship existed between the USNSA and the CIA. During that period, the CIA secretly funded the USNSA and made occasional "operational use" of individual students. Following public disclosure of this relationship in February 1967, the CIA and the USNSA officially terminated their association. Plaintiff's Opposition to Defendant's Motion for Summary Judgment at 2-3.
After delays due to negotiations regarding fees, the scope of the request and a FOIA request backlog, the USSA filed suit for injunctive relief. Defendant's Statement of Material Facts paras. 2-9. By Court stipulation approved on July 30, 1982, the CIA agreed to release certain unclassified documents, file a Vaughn affidavit (affidavit of Louis J. Dube, Information Review Officer for the Directorate of Operations, CIA), and the first installment of a Vaughn index.
The CIA also agreed to file additional installments of the Vaughn Index on a monthly basis until all documents were so indexed. Finally, the CIA agreed to file additional affidavits or indexes if necessary. Id. para. 10.
The eighth and final Vaughn Index installment was made on April 6, 1983. Id. para. 28. Of the 1,484 documents at issue (30 of the 1,514 documents were stipulated out of the case on August 13, 1982), 121 were released to the USSA in whole or in part. Plaintiff's Opposition to Defendant's Motion for Summary Judgment at 3.
By order, the defendant submitted to the Court an unexpurgated copy of every twenty-fifth document it had indexed in this action for an in camera and ex parte inspection. Defendant's Statement of Material Facts para. 34. Thereafter, on August 15, 1983, the Court concluded that the defendant was not withholding any officially acknowledged information and, accordingly, denied the plaintiff's motion to compel discovery. Id. at para. 35.
The CIA now moves for summary judgment, asserting that they have complied fully with the USSA's information request, save the information properly withheld pursuant to certain FOIA exemptions, 5 U.S.C. § 552; Exemption (b)(1) (to protect classified material); Exemption (b)(3) (to protect intelligence sources and methods); Exemption (b)(5) (to protect predecisional privileged information); and Exemption (b)(6) (to protect personal and other files for privacy reasons). The USSA opposes the CIA's motion on the grounds that (a) the affidavit of Louis J. Dube is defective, and (b) that the CIA has failed to carry its burden of justifying the withholding of information requested by the USSA under the FOIA.
This action was stayed by Court order on October 2, 1984, pending a decision by the Supreme Court in Sims v. Central Intelligence Agency, 471 U.S. 159, 105 S. Ct. 1881, 85 L. Ed. 2d 173 (1985). Following the Supreme Court's ruling in Sims on April 16, 1985, the parties submitted additional briefings on the applicability of the Sims decision to the issues before the Court.
A. The Sufficiency of the Dube Affidavit
Louis J. Dube's affidavit, executed on September 7, 1982, in conjunction with the first installment of the Vaughn Index, and incorporated into the defendant's motion for summary judgment by reference, constitutes the primary support of that motion. At the time Mr. Dube executed the affidavit, he had personally reviewed only 186 of the 1,484 documents at issue. Thus, the plaintiff contends that Dube's affidavit fails the Fed. R. Civ. P. 56(e) "personal knowledge" standard as to the remaining 1,328 documents not included in the first Vaughn installment. Plaintiff's Opposition to Defendant's Motion for Summary Judgment at 4-5.
The Dube affidavit restates the principles incorporated in the Stipulation, "This affidavit will set forth the justifications upon which the CIA intends to rely in making deletions or denials as reflected in each index installment." Dube Affidavit para. 5. Further, the affidavit "addressed and . . . incorporate[d] each and every monthly installment of the Index. . . ." Dube Affidavit para. 2. Moreover, each monthly installment of the Vaughn Index explicitly referred back to the Dube affidavit for the rationales for withholding.
The plaintiff's FOIA request covered a period from January 1, 1945 to the present, involving thousands of documents. The disclosure scheme envisioned by the Stipulation was designed to respond to the plaintiff's extensive document request in the most efficient, expeditious manner. Rather than restate the justifications for withholding certain documents in each monthly installment, the indexes were carefully cross-referenced with the Dube affidavit.
See, e.g., USSA v. CIA Document Disposition Index. In addition, the Stipulation provided that additional affidavits would be filed if the CIA's document-by-document review revealed justifications not addressed in Mr. Dube's general affidavit. Stipulation paras. 2, 7.
Moreover, the Court finds the supplemental affidavit of Louis J. Dube ("Supp. Affidavit"), filed on June 29, 1984, conclusive. Mr. Dube addresses himself to the present confusion:
The general justifications for denial set forth in my original affidavit were never intended to be an exhaustive list of all categories of information contained in the 1,514 documents. Rather, if I discovered new information as my review of each installment progressed, I fully intended to submit a supplemental affidavit explaining any new rationale for withholding. Ultimately, I did not discover any new categories of information not covered by my original affidavit. The fact remains ...