seeks. Plaintiff's proposition must be rejected for three reasons. First, the Fitzgibbon case upon which plaintiff relies was decided under a predecessor Executive Order, number 12065, which created a presumption in favor of disclosure for documents more than 20 years old. Id. at 721. No such presumption exists under the Executive Order at issue in this case. Second, and perhaps more importantly, the CIA has considered the age of the documents in its determinations. Thus any general theories as to the impact of the passage of time must be rejected as mere hypotheticals in contrast to the CIA's specific findings as to the impact of the passage of time on these documents.
Third, in Sims, the Supreme Court rejected a judicial limitation placed on the language of the CIA witholding statute, 50 U.S.C. § 403(d)(3), noting that the "plain language of the statute" was extremely broad, protecting "all sources of intelligence." 105 S. Ct. at 1888. It thus seems entirely inappropriate for this court to establish a limit on the protection afforded by the statute based upon the lapse of time. Besides being contrary to the breadth of the statutory language, it is difficult to conceive of how such a gradual limit would operate in practice. How many years must elapse before a source's identity becomes unprotectible? What interim stages of non-absolute protection would there be? Of what value would such partial protection be in the world of intelligence gathering? These questions are not answered by plaintiffs in their proposed "erosion" theory, and thus plaintiff's theory must be rejected.
B. Exemption (b)(3): Information Specifically Exempt by Statute :
FOIA permits agencies to withhold information specifically exempt from disclosure by statute. 5 U.S.C. § 552 (b)(3). The Court has previously held that the National Security Act, 50 U.S.C. § 403(d)(3) is indeed such a withholding statute within the meaning of FOIA. Goland v. C.I.A., 197 U.S. App. D.C. 25, 607 F.2d 339, 349 (D.C.Cir. 1979); Weissman v. C.I.A., 184 U.S. App. D.C. 117, 565 F.2d 692, 694 (D.C. Cir. 1977) (holding that § 403(d)(3) is "precisely the type of statute comprehended by exemption (b)(3).").
The CIA has claimed (b)(3) exemption almost coextensively with its (b)(1) exemptions, discussed above. The inquiry is thus whether release of the withheld information reasonably could be expected to lead to unauthorized disclosure of intelligence methods or sources, and if so, whether such disclosure reasonably could be expected to harm the national security. Again, the CIA bears the burden of showing that the withheld information fits within this exemption, Abbotts v. Nuclear Regulatory Commission, 247 U.S. App. D.C. 114, 766 F.2d 604, 606 (D.C. Cir. 1985), and it may meet this burden by affidavits (or declarations). Halperin v. C.I.A., 203 U.S. App. D.C. 110, 629 F.2d 144, 148 (D.C. Cir.1980). For the reasons discussed above, in the context of defendant's (b)(1) exemptions, the (b)(3) exemptions claimed appear to be equally proper under the standards set forth in Hayden, 197 U.S. App. D.C. 224, 608 F.2d 1381, and Sims, 471 U.S. 159, 105 S. Ct. 1881, 85 L. Ed. 2d 173, and need no additional discussion here.
C. Exemption 6: Unwarranted Invasion of Privacy :
The CIA has withheld twelve letters and several miscellaneous documents pursuant to FOIA exemption (b)(6). That exemption permits agencies to withhold "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). In order to prevail as to its exemption (b)(6) claim, defendant must show that the documents come from the type of files that are statutorily protected, and must also show that, on balance, the public interest in disclosure does not outweigh the personal privacy interest of the individual who is the subject of the file. Department of the Air Force v. Rose, 425 U.S. 352, 372, 96 S. Ct. 1592, 1604, 48 L. Ed. 2d 11 (1976).
As to the first prong of the exemption, defendant asserts, and plaintiff does not contest, that the documents withheld are from files within the definition of "similar files" that has been developed in the case law under this exemption. That is, the information withheld is contained in government records and can be identified as applying to a particular individual. Department of State v. Washington Post Company, 456 U.S. 595, 102 S. Ct. 1957, 72 L. Ed. 2d 358 (1982). This is all that is needed to satisfy the "similar files" language of exemption (b)(6).
The balance of public interest in disclosure and personal privacy interest must be performed de novo by this court upon any claim of exemption under FOIA (b)(6). Lesar v. Department of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472, 486 (D.C. Cir. 1980). However, explanations of the privacy interest at stake may be made in somewhat general terms by the agency, lest the privacy interest be lost in the process of justifying its protection. Id. at 488.
In this case, defendant has withheld twelve letters intercepted and copied by the CIA as part of its HTLINGUAL program, in existence between 1963 and 1973, in which the CIA covertly opened and copied mail sent or received by U.S. citizens in the Soviet Union. The Dube declaration asserts that while the individual who is the subject of the withheld letters was identified by the House Select Committee in its investigation of the Kennedy assassination, the letters themselves are unrelated to the investigation or the assassination. Declaration at para. 46. Thus there appears to be little or no public interest in their disclosure. However, as the court has held in an earlier opinion in this case, "mere association with the Kennedy assassination . . . creates the type of unfavorable inference that impinges upon a substantial privacy interest." Allen v. Dep't of Defense, No. 81-2543, Memorandum Opinion at 7 (D.D.C. Aug. 24, 1984). Thus, the balance seems to tip in favor of nondisclosure.
Plaintiff asserts that in evaluating exemption (b)(6) claims, the balance is to be tilted in favor of disclosure, citing Getman v. NLRB, 146 U.S. App. D.C. 209, 450 F.2d 670, 674 (D.C. Cir. 1971). Plaintiff contends that in attempting to justify these (b)(6) exemptions, defendant's supporting Declaration is merely conclusory, and fails to overcome the statute's expressed preference for disclosure.
Plaintiff's objections to defendant's (b)(6) claims must fail, however. First, each of the documents plaintiff refers to in his Memorandum in Support of Plaintiff's Motion for Partial Summary Judgment is described in sufficient detail for this court to make its de novo determination. See Declaration at 122, 135, 136, 139. That defendant uses the statutory language of FOIA exemption (b)(6) -- "disclosure . . . would constitute a clearly unwarranted invasion of the personal privacy" of these individuals -- in addition to a description of the withheld documents does not make defendant's description conclusory. Sufficient information is given as to Document 37, for example. It is a note containing "a brief biography of an individual named Jack Rubenstein," whose name is the same as that of Jack Ruby, but who is "in no way related to the Jack Ruby who killed Lee Harvey Oswald." Declaration at 122-3. There is little public interest in an individual who has no connection to the House Select Committee investigation save the coincidence of his name, but he does have a strong privacy interest in his biographical data. Exemption (b)(6) is thus applicable. Similar factual support is offered for the other documents that defendant seeks to withhold under (b)(6). And as the Court of Appeals for the District of Columbia Circuit noted in Lesar v. Dep't of Justice, in response to that plaintiff's complaint that defendant's support for (b)(7)(C) exemptions was too vague:
"to initiate a further inquiry into the precise type of information contained in these records 'would in the nature of things destroy the privilege [accorded to individual privacy interests] for the inquiry cannot be made without revealing the withheld information.'".