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AMERICAN LIBRARY ASSN. v. FAURER

March 27, 1986

AMERICAN LIBRARY ASSOCIATION, et al., Plaintiffs
v.
LINCOLN FAURER, DIRECTOR, NATIONAL SECURITY AGENCY, Defendant



The opinion of the court was delivered by: GREEN

 This matter is before the Court on defendant's motion to dismiss or in the alternative for summary judgment ("Defendant's Motion for Summary Judgment"); plaintiffs' motion for summary judgment; an in camera inspection of the classified affidavit of Mr. E. Rich, Deputy Director, National Security Agency; and the entire record herein. For the reasons below, the Court grants defendant's motion for summary judgment.

 I. Background

 Plaintiffs, an historical researcher and several library and historical organizations, *fn1" filed the instant action for declaratory and injunctive relief, seeking access to 34 documents donated to the George C. Marshall Library ("Library") by William Friedman, a former employee of the National Security Agency ("NSA"). The documents at issue include 31 now-classified pieces of private correspondence and three government publications.

 The basic facts surrounding the donation of these disputed documents and the controversy arising from their withdrawal from public access are simple and uncontested. In 1969, Mr. William Friedman, a noted cryptologist who had worked for the NSA and its predecessor agencies, decided to donate his personal collection of letters, papers, and memorabilia ("Friedman Collection") to the Library. After his death in 1969, the Friedman Collection was transferred from his home to the George C. Marshall Library, located on the campus of the Virginia Military Institute in Lexington, Virginia. The Library maintains custody of the papers of certain former government officials.

 Public access to the Friedman Collection, however, was not available until Ronald Clark, a biographer, published a biography of Mr. Friedman. While conducting his research, Mr. Clark, with NSA's knowledge, had complete and unrestricted access to the collection during a two-week period of review spent at the Library in late 1975. The collection was opened eventually to the public in January 1978.

 Between December 1970 and January 1978, NSA representatives conducted three reviews in January 1971, November 1971, and July 1974 "devoted to assessing the organization of the collection and its historical significance, but [they] were not systematic classification reviews." Affidavit of Meyer J. Levin ("Levin Affidavit") para. 7.

 NSA representatives visited the Library again in November and December 1976 to conduct a classification review of portions of the collection. Levin Affidavit para. 8. These reviewers identified various documents from the Friedman correspondence files "which related, either directly or indirectly, to official and sensitive work of NSA, including, inter alia, a cryptologic relationship between the United States and a foreign government the existence of which was classified, . . . at the SECRET level." Id. The archivist of the Library was made aware of the sensitive nature of these documents and both he and the NSA reviewers agreed that the sensitive materials should be pulled from the open shelves and placed in a safe. *fn2"

 In June 1981, NSA received information that sensitive materials in the collection had been placed on the open shelves by the Library. This information prompted a visit in October 1981, by Russell Fisher and other NSA reviewers, who examined all the technical books, pamphlets, and monographs contained on the open shelves and held in the safe. This review resulted in the declassification of numerous materials, including the third technical monograph at issue here, Analyses of a Mechanico-Electrical Cryptograph (" Mechanico-Electrical Cryptograph "), Levin Affidavit para. 9; Plaintiffs' Facts para. 9, and the reclassification of the General Solution and Hagelin Cryptograph monographs. The NSA reviewers also classified five technical textbooks, pamphlets, and monographs which had been declassified in July 1975. The reviewers did not examine the Friedman correspondence files.

 The first review of Mr. Friedman's correspondence was conducted by Mr. Wilson and two other NSA employees between November 30 and December 2, 1976. They identified several items (including no more than six of the items at issue) as being sensitive and Mr. Wilson and the then-archivist of the Library, Anthony Crawford, agreed that these materials would be segregated from the rest of the correspondence and placed in a safe. Levin Affidavit para. 10; Plaintiffs' Facts paras. 11-12. However, none of these sensitive pieces of correspondence was classified by Mr. Wilson.

 Public access was given in 1978 to the Friedman correspondence with the exception of the items identified as sensitive by Mr. Wilson in 1976. Subsequently, these sensitive materials were opened to the public on October 1, 1979 by Mr. Crawford without prior consultation with NSA.

 In 1982, James Bamford released his book about NSA entitled, The Puzzle Palace. A review of the book revealed that materials in the Friedman correspondence files identified previously as sensitive in 1976 by NSA reviewers may have been made available to Mr. Bamford. Mr. Bamford apparently had access to all of the correspondence during his visits to the Library in 1979.

 In response to the book's publication, Messrs. Meyer and Fisher visited the Library in April 1983 to identify and review the sensitive materials opened in 1979. They determined that some of the items sequestered by Mr. Wilson in 1976 could be made available to the public and some should be withheld. They also identified sensitive items which had not been sequestered by Mr. Wilson in 1976 and had been available to the public since January 1978. Messrs. Levin and Fisher classified some of these items but did not classify all the materials as sensitive. They directed the Library's archivist, John Jacob, to seal these materials pending review. Mr. Fisher also reclassified the Mechanico-Electrical Cryptograph monograph during this visit.

 On May 31 and June 1983, plaintiff Jay Peterzell visited the Library and reviewed the open portions of the Friedman Collection. He found that each withdrawn document had been replaced by a notice of withdrawal. These notices identify the withdrawn document and indicate the reason for withdrawal, either "classified" or "for other reasons."

 Upon further inquiry, Mr. Peterzell learned that the majority of the withdrawn items had been withdrawn for "other reasons." He then requested access to the withdrawn documents and the Library officials refused. They explained to him that they were bound by NSA's directions and that Mr. Peterzell could not have access to the withdrawn items unless NSA consented to making them available to the public.

 On January 5, 1984, Mr. Peterzell telephoned the Library to inquire about the status of the withdrawn documents and was informed that there had been no change since his last visit. Counsel for plaintiffs wrote to the defendant on January 16 and 23, 1984, to inform him of their request for access to the withdrawn documents and to request ...


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