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ALLEN v. DOD

November 26, 1986

MARK A. ALLEN, Plaintiff,
v.
DEPARTMENT OF DEFENSE, et al., Defendants


Thomas A. Flannery, United States District Judge.


The opinion of the court was delivered by: FLANNERY

THOMAS A. FLANNERY, UNITED STATES DISTRICT JUDGE

 This matter came before the court on cross motions for partial summary judgment by plaintiff and defendant Central Intelligence Agency ("CIA"), and on plaintiff's Motion for Appointment of a Special Master or Historical Review Committee. For the reasons set forth below, defendant's motion is granted and plaintiff's motion is denied.

 I. Background

 This Freedom of Information Act ("FOIA") case began some six years ago when plaintiff Mark Allen filed a FOIA request with the CIA, Defense Intelligence Agency, and others. Plaintiff is a researcher seeking information related to the assassination of President John F. Kennedy. Plaintiff's FOIA request was for "all correspondence or records of communications between your agency and the U.S. House Select Committee [on Assassination]'s investigation into the assassination of President John F. Kennedy."

 The CIA's original contention that all materials requested were exempt from disclosure under FOIA as congressional, not agency, records was rejected by this court. Allen v. Department of Defense, 580 F. Supp. 74 (D.D.C. 1983). The bulk of the documents which make up plaintiff's request, CIA files that preexisted the House Select Committee's investigation, were there held to be non-exempt as congressional documents. Id.

 In the next stage of this lengthy litigation, plaintiff was ordered to designate 350 documents from among the 5,000 that the CIA had finished processing, and the CIA was ordered to create a Vaughn index for those 350 documents. Allen v. Dep't of Defense, No. 81-2543, Order (D.D.C. Apr. 2, 1986). See Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C. Cir. 1973). Plaintiff and defendant have each moved for partial summary judgment based on the Vaughn index and accompanying affidavits filed by defendant the CIA.

 II. Summary Judgment and the FOIA

 
. . . if the affidavits contain information of reasonable detail, sufficient to place the documents within the exemption category, and if the information is not challenged by contrary evidence in the record or evidence of agency bad faith, then summary judgment for the Government is appropriate without an in camera review of the documents.

 Lesar v. U.S. Department of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472, 481 (D.C. Cir. 1980). See also Meeropol v. Meese, 252 U.S. App. D.C. 381, 790 F.2d 942, 958 (D.C. Cir. 1986). With these principles in mind, consideration of the particular exemptions at issue is now possible.

 III. The FOIA Exemptions Claimed

 The CIA relies principally on four FOIA exemptions in withholding documents in part and in their entirety. Each category of exemption will be addressed separately.

 A. Exemption (b)(1): National Defense or Foreign Policy :

 FOIA Exemption (b)(1) permits an agency to withhold materials 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.

 5 U.S.C. § 552(b)(1). Pursuant to this exemption, the CIA has withheld many of the documents that plaintiff requested. The CIA has submitted the Declaration of Louis J. Dube in support of its claimed exemptions. Mr. Dube is an Information Review Officer for the Directorate of Operations, CIA, whose qualifications to review the records withheld in this case are not challenged by plaintiff. See Declaration of Louis J. Dube ("Declaration") para. 1, 9.

 The U.S. Court of Appeals for the District of Columbia Circuit has held that "the Executive Order in effect at the time the classifying individual acted states the relevant criteria for purposes of determining whether Exemption 1 properly was invoked." Meeropol v. Meese, 252 U.S. App. D.C. 381, 790 F.2d 942, 959 (D.C. Cir. 1986), quoting Lesar v. Dep't of Justice, 636 F.2d at 480. Mr. Dube, who has original classification authority at the TOP SECRET level, Declaration para. 9, reviewed the original classifications of the documents. He determined that the original classifications were proper, and in some instances determined that those documents not originally marked as classified should be so marked. Id. Mr. Dube conducted his final review under Executive Order 12356, 47 Fed. Reg. 14,874 (1982), which became effective on August 1, 1982. It is thus the criteria of that Executive Order which the court must apply in evaluating the propriety of the claimed exemptions that the CIA asserts. Meeropol, supra, 790 F.2d at 959; Lesar, supra, 636 F.2d at 480.

 In claiming exemptions under FOIA (b)(1), the CIA relies on three provisions of Executive Order 12356 that make certain information classifiable if it, "by itself or in the context of other information, reasonably could be expected to cause damage to the national security." ...


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