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SOUTHAM NEWS v. U.S. INS

September 29, 1987

Southam News, Plaintiff,
v.
U.S. Immigration And Naturalization Service, et al., Defendants


Greene, U.S.D.J.


The opinion of the court was delivered by: GREENE

GREENE, U.S.D.J.

 Plaintiff Southam News, a Canadian news service, filed this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking records from the Immigration and Naturalization Service ("INS"), the Department of Justice, the Department of State, the Central Intelligence Agency ("CIA"), and the Federal Bureau of Investigation ("FBI") pertaining to the administration of certain provisions of the Immigration and Nationality Act of 1952 ("McCarran Act"), which authorizes the exclusion of aliens from the United States on political grounds, and to Farley Mowat, a well-known Canadian author who was excluded from entering the United States in 1985 pursuant to those provisions. After plaintiff filed this suit, defendants released to plaintiff some of the documents being sought. Plaintiff asserts that additional responsive documents have been improperly withheld and that some documents have not been located due to inadequate searches.

 This case is now before the Court on defendants' joint motion for summary judgment and plaintiff's motion for partial summary judgment and for an order compelling further searches. This Memorandum addresses these motions in an interrelated fashion as they raise overlapping issues.

 I

 FOIA Exemptions

 A. Exemption (b) (1)

 Exemption (b)(1) of the FOIA protects from disclosure records that are "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and . . . are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1). A document is protected from disclosure under this exemption if it has properly been classified pursuant to both the procedural and substantive criteria contained in the applicable Executive order. Lesar v. United States Department of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472, 483 (D.C. Cir. 1980). See also Weissman v. CIA, 565 F.2d 692, 697 (D.C. Cir. 1977). Given a reasonable degree of specificity in the agency's supporting affidavits and absent evidence of bad faith, an agency's affidavit asserting national security interests requiring classification is entitled to a high degree of deference. Halperin v. CIA, 203 U.S. App. D.C. 110, 629 F.2d 144, 148 (D.C. Cir. 1980).

 The motions filed by the parties dispute whether certain documents withheld by the INS, the FBI, and Department of Justice properly fall within exemption (b)(1).

 1. INS

 The INS has withheld two two-page documents pursuant to this exemption on the basis that they contain information given by a foreign government in confidence and implicate national security interests. *fn1" See Declaration of Paul W. Schmidt. These documents were classified "secret" by a foreign government. Plaintiff claims that these documents have not satisfied the procedural requirements for proper classification or the substantive requirements for the designation of "secret."

 Contrary to plaintiff's assertions, these documents have been properly classified within the meaning of Executive Order 12356. Section 1.5(d) of that order provides that "foreign government information shall either retain its original classification or be assigned a United States classification that shall ensure a degree of protection at least equivalent to that required by the entity that furnished the information." Specific identification or markings are not required under that section. The two documents at issue were classified and labelled "secret" by a foreign government, and the procedural requirements for classification set forth in section 1.5(d) of Executive Order 12356 have thus been satisfied.

 Plaintiff argues, however, that since the date of classification is not provided on the requested documents and since the propriety of classification must be assessed under the Executive order in force at the time of classification, see Lesar, 636 F.2d at 480, it is impossible to determine whether the procedural requirements of the applicable Executive order were satisfied because it is impossible to determine the applicable Executive order. This argument is specious.

 The oldest of the two requested documents is dated July 22, 1968. Every Executive order governing national security classification since that time contains a section that is either identical or substantially identical to section 1.5(d) of Executive Order 12356. The Court concludes that the two documents were properly classified under any and all of the possibly applicable Executive orders since their origination.

 In addition to satisfying the applicable procedural criteria, the documents were classified in conformity with the substantive requirements of Executive Order 12356. The INS withheld the two documents because they contain information originating from a foreign government confidential source. Affidavit of John J. Ingham at para. 12; accord Schmidt Declaration at paras. 4-7. Requiring the INS to release information obtained from a foreign government source in confidence, particularly where such information is deemed secret by that government, would undermine future attempts by the United States to gain information from a foreign government source pursuant to a promise of confidentiality. Under such circumstances, the value of such a promise would of course be tenuous at best. Disclosure of such information would also have the effect of inhibiting diplomatic exchanges which are essential to obtain information necessary for the conduct of United States foreign relations. In any event, Executive Order 12356 specifically provides that the release of foreign government information is presumed to cause damage to the national security. Executive Order 12356, § 1.3(a)(3).

 Accordingly, the Court will grant the INS' motion for summary judgment with respect to its exemption (b)(1) claims.

 2. FBI

 The FBI has withheld a number of pages of material on the ground that the information falls within the foreign government information and intelligence activities, sources and methods categories of Executive Order 12356, § 1.3(a) (4).

 The affidavits submitted by the FBI indicate that the procedural requirements of Executive Order 12356 have been satisfied as well as the substantive requirements. Proper procedural classification is evidenced by the following: each document was marked and stamped with the proper classification level, the identity of the original classification authority where appropriate, and the date or event for declassification or other appropriate motion, Executive Order 12356, § 1.5(a)(1) (4); the portion of each document that was classified was clearly marked; the limitations on classification specified in Executive Order 12356, § 1.6, were adhered to; the declassification policies set forth in Executive Order 12356, § 3.1, were followed; and all reasonably segregable portions of documents that did not require protection under Executive Order 12356 were declassified. Declaration of Sherry L. Davis at 5.

 The affidavits, which are entitled to a high degree of deference, also establish that the documents were classified in accordance with the substantive criteria set forth in the applicable Executive order. These affidavits state that the information withheld pertains to or was provided by a foreign government, or that this country furnished such information to a foreign government and that it involves intelligence activities or sources. Davis Declaration at 14.

 As with respect to the INS documents, supra, some of this information was given by a foreign government source in confidence and, for the reasons stated above, disclosure of such information would harm the national security. Disclosure of information concerning intelligence activities could damage the national security by confirming the existence of a particular intelligence operation or by revealing investigative activities, targets, or priorities. The conclusion that disclosure of the information withheld by the FBI could cause danger to the national security is buttressed by the presumption of danger to the national security from such disclosure set forth in Executive Order 12356, § 1.3(a)(3). *fn2"

 The Court will therefore grant the FBI's motion for summary judgment with respect to its claims made pursuant to exemption (b)(1).

 3. Department of Justice

 The Department of Justice withheld a portion of one document and all of another on the basis that the information contained therein "directly relates to the foreign relations or activities of the United States." Declaration of John N. Richardson, Jr., at para. 10. Plaintiff does not specifically oppose the Department of Justice's claim that these documents fall within exemption (b)(1). The Court, consequently, will grant the Department's motion for summary judgment in this respect.

 B. Exemption (b)(5)

 Exemption (b)(5) protects from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). This exemption has been construed to exempt those documents normally privileged in the civil discovery context. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1975). Here, too, the Department of Justice has invoked the deliberative process privilege encompassed within this exemption to justify nondisclosure of portions of one documents and all of another. Declaration of Mirian M. Nisbet at paras. 21-22.

 The general purpose of the deliberative process privilege is to "prevent injury to the quality of agency decisions." NLRB, 421 U.S. at 151. This privilege is applicable only if two requirements have been satisfied: (1) the communication must be "antecedent to the adoption of an agency policy," Jordan v. Department of Justice, 192 U.S. App. D.C. 144, 591 F.2d 753, 774 (D.C. Cir. 1977) (en banc); and (2) the communication must be "a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters," Vaughn v. Rosen, 173 U.S. App. D.C. 187, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975).

 The documents withheld by the Department of Justice are both Office of Legal Counsel ("OLC") opinion letters. One document, referred to as "Document # 9" by the Department, is a "five-page opinion written by the Assistant Attorney General of OLC for the Attorney General, . . . which discusses legal questions regarding the criteria used to evaluate visa applications made by a certain class of individuals . . . ." Nisbet Declaration at para. 21. *fn3" It was "generated in the course of formulating policies and positions that were being considered with regard to this visa matter . . ." Id. This document evinces recommendations and deliberations "comprising part of a process by which governmental decisions and policies are formulated," NLRB, 421 U.S. at 150, and as such, its release would likely "stifle ...


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