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.
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).
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.
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 honest and frank communications within the agency." Coastal States Gas Corp. v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 866 (D.C. Cir. 1980). Accordingly, it falls within the ambit of exemption (b)(5).
The second document, referred to as "Document # 10" by the Department, is an undated draft OLC opinion on the same topic as Document # 9. Document # 10, at the time of its transmission to the Attorney General, was being circulated to the Department of State, the FBI, and the INS for their comments. This document, then, was predecisional and related to a particular deliberative process. Thus, nondisclosure is justified by exemption (b)(5).
C. Exemption (b)(7)(A)
Exemption (b)(7)(A) permits nondisclosure of "investigatory records compiled for law enforcement purposes" to the extent that such production would "interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A). The enforcement proceedings can be prospective, see, e.g., Ehringhaus v. FTC, 525 F. Supp. 21, 22-23 (D.D.C. 1980), or pending, see, e.g., NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 236, 98 S. Ct. 2311, 57 L. Ed. 2d 159 (1978). In addition, where the record, although not currently involved in an investigation, could lead to a prospective law enforcement proceeding, this exemption is applicable. See National Public Radio v. Bell, 431 F. Supp. 509, 514-15 (D.D.C. 1977). In determining whether the standard in exemption (b)(7)(A) has been met, the Court must weigh the strong presumption in favor of disclosure under FOIA against the likelihood that release would substantially harm such proceedings. NLRB, 437 U.S. at 236.
The INS claims exemption (b)(7)(A) to protect from disclosure several pages from the "Service Lookout Book" ("SLOB") on which are listed the names of Canadian citizens.
The SLOB is an "investigation and law enforcement tool that contains the names of violators, alleged violators, and suspected violators of the criminal and civil provisions of statutes enforced by INS." Affidavit of Russell A. Powell at para. 10.
Disclosure of the several pages in the SLOB at issue clearly could prejudice the enforcement program carried out by the INS, as well as other law enforcement agencies, as the SLOB assists INS officers who discharge their duty to ensure the exclusion of inadmissible aliens. While it is unclear whether enforcement proceedings involving the nondisclosed names are currently pending, the SLOB at a minimum pertains to prospective enforcement proceedings involving the nondisclosed names. See Powell Affidavit at para. 12. The likelihood that disclosure would hamper such law enforcement efforts outweighs the presumption in favor of disclosure.
Nondisclosure, then, is proper pursuant to exemption (b)(7)(A).
D. Exemption (b)(7)(C)
Exemption (b)(7)(C) protects from disclosure investigatory records compiled for law enforcement purposes to the extent that production of those records would "constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). Those who fall within the ambit of this exemption include persons who may have been of "investigative interest" by the FBI, see, e.g., Fund for Constitutional Government v. National Archives, 211 U.S. App. D.C. 267, 656 F.2d 856, 861-66 (D.C. Cir. 1981), as well as federal, state and local law enforcement personnel to whom reference may be made in investigative records, see, e.g., Lesar, 636 F.2d at 487-88. Similar to exemption (b)(7)(A), this exemption involves a balancing of the public interest in disclosure against the right of privacy.
The Department of Justice, FBI, and INS assert that various documents or portions thereof are exempt from disclosure pursuant to this provision.
The INS has invoked exemption (b)(7)(C) to justify nondisclosure of one page of the SLOB, referred to as "Document # 1," which lists names and personal identifiers of "individuals who warrant removal" from that book. Powell Affidavit at para. 12. Release of names that have been listed in a book that functions as an investigatory tool, containing names of "violators, alleged violators, and suspected violators of the criminal and civil provisions of statutes enforced by the INS" would result in derogatory inferences about and possible embarrassment to those individuals. Moreover, the public's right to know names of individuals found not to be excludable on political grounds is not great, and certainly that right is outweighed by the individuals' right to privacy.
Document # 1, therefore, falls within the ambit of exemption (b)(7)(C), and the Court will grant the INS' motion for summary judgment to that extent.
The FBI withheld certain information in several documents on the basis of exemption (b)(7)(C). This information consists of the names of and identifying data concerning FBI Special Agents and clerical personnel responsible for the conduct or supervision of certain investigative activities, the identities of and information concerning third parties only mentioned in connection with the subject of investigation, and the names and identifying information of other federal government employees.
Disclosure of the identities of third parties and FBI Special Agents associated with certain investigative activities clearly could expose those persons identified to unnecessary harrassment, danger or embarrassment. The likelihood of the disruption of those individuals' personal lives indicates that the balance of public and private interests tips in favor of disclosure.
However, nondisclosure of the identities of clerical personnel or other federal government employees who handled administrative tasks related to official investigations cannot be predicated on exemption (b)(7)(C). The concern postulated by the FBI that release of those identities would subject those persons to "harrassing inquiries for unauthorized access to. . . information" does not constitute the unwarranted invasion of privacy that this exemption was designed to protect against.
The Court will therefore grant plaintiff's motion for partial summary judgment and deny the FBI's motion for summary judgment to the extent that they relate to the identities of clerical personnel or other federal government employees referred to above, and it will deny plaintiff's motion and grant the FBI's motion regarding this exemption in all other respects.
3. Department of Justice
In four separate documents, the Department of Justice has withheld the identities of two FBI Special Agents "who were involved in discussion of matters relating to the interpretation and enforcement of various sections of the Immigration and Nationality Act" pursuant to exemption (b)(7)(C).
See Nisbet Declaration at para. 23. The Department of Justice asserts that nondisclosure is necessary to protect these agents from "harrassment by affected parties who may have developed animosity toward [them] . . . for certain decisions." Nisbet Declaration at para. 23.
The basis for withholding this information is substantially similar to that pertaining to the names and identities of FBI Special Agents withheld by the FBI. The documents withheld by the Department of Justice are investigative records compiled for law enforcement purposes as they were generated in the course of determining how the government's law enforcement efforts should be conducted with regard to the visa applications of certain persons affiliated with organizations proscribed under the McCarran Act. Nisbet Declaration at para. 23. Disclosure of the identities withheld on these documents could expose these agents to unnecessary harrassment. In addition, the public benefits to such disclosure are outweighed by the agents' right to privacy.
E. Exemption (b)(7)(D)
Exemption (b)(7)(D) protects information contained in investigatory records to the extent that release of that information would disclose the identity of a confidential source, and in the case of records compiled in the course of a criminal investigation, the confidential information furnished by a confidential source. 5 U.S.C. § 552(b)(7)(D). The informants' names and addresses are protected, see, e.g., Cuccaro v. Secretary of Labor, 562 F. Supp. 724, 725 (W.D. Pa. 1983), as is information that would "tend to reveal" a source's identity. Pollard v. FBI, 705 F.2d 1151, 1155 (9th Cir. 1983).
The INS has asserted this exemption to justify non-disclosure of seven pages of a twelve-page document that originated with a foreign government confidential source. It claims that disclosure of this information "might tend to disclose the identity of the confidential source as the law enforcement agency that investigated any identified organization or individual." Ingham Affidavit at para. 13.
While the information withheld may contain identities of confidential sources, the affidavits submitted by the INS do not indicate that the documents that contain this information are investigative records compiled for law enforcement purposes within the meaning of exemption (b)(7)(D). The INS describes the documents withheld pursuant to this exemption as an article from a Canadian organization, a newsletter, a list of members of a political organization, and a bulletin of a political organization. Clearly, these documents were not compiled for law enforcement purposes. Thus, exemption (b)(7)(D) does not justify their nondisclosure. Accordingly, the Court will deny the FBI's motion for summary judgment in this respect, and grant plaintiff's motion for partial summary judgment.
Adequacy of Search
A. Department of State
The Department of State moves for summary judgment on the ground of lack of subject matter jurisdiction, alleging that either no responsive documents could be located or that all such documents were released to plaintiff. Plaintiff opposes that motion and requests an order compelling a search for documents responsive to Items One and Four through Seven on the ground that the Department of State did not conduct an adequate search for those documents.
Subject matter jurisdiction over a claim for declaratory or injunctive relief under FOIA ceases to exist when all records responsive to the FOIA request have been released. Debold v. Stimson, 735 F.2d 1037, 1040 (7th Cir. 1984); Crooker v. United States Department of State, 202 U.S. App. D.C. 9, 628 F.2d 9, 10 (D.C. Cir. 1980). In order to establish that no responsive records have been improperly withheld, defendants must demonstrate that each relevant document was produced, is unidentifiable, or is exempt from release. National Cable Television Ass'n, Inc. v. FCC, 156 U.S. App. D.C. 91, 479 F.2d 183, 186 (D.C. Cir. 1973). In the present situation, to meet this burden, the Department of State must demonstrate that it has conducted a search reasonably calculated to locate all responsive material. McGehee v. CIA, 225 U.S. App. D.C. 205, 697 F.2d 1095, 1101 (D.C. Cir. 1983). See Weisberg v. United States Department of Justice, 227 U.S. App. D.C. 253, 705 F.2d 1344, 1351 (D.C. Cir. 1983). Examination of the Department of State's response indicates that that search was insufficient.
Plaintiff claims, and the evidence supports this contention, that there are indications that the Department of State has not released records that are responsive to Item One. Item One sought the following documents:
all regulations, guidelines, memoranda or directives pertaining to the interpretation and/or implementation of section 212(a)(27)-(a)(29) of the McCarran Act.
The Department of State responded to that request by conducting a search of the Office of Visa Services, restricting that search to records pertaining to Mowat. In addition, the Department of State stated that "the general rules and procedures pertaining to visas" are published in the Foreign Affairs Manual and the Code of Federal Regulations. See Declaration of Frank M. Machek.
The insufficiency of this response is indicated by the fact that the Department of Justice has indicated that it referred two Office of Legal Counsel ("OLC") documents to the Department of State, one of which is responsive to plaintiff's request. See Declaration of Miriam M. Nisbet, paras. 11, 13, 22. One of these documents, dated August 8, 1978, is a "Memorandum for the Attorney General" referring to "a dispute of long standing" between the FBI and the Department of State regarding "the criteria applied by consular officials" to a narrow class of visa applicants." See Nisbet Declaration, para. 9. As plaintiff contends, this reference suggests that the Department of State, as well as the FBI, may have several documents regarding this dispute which are responsive to plaintiff's request set forth in Item One.
In footnote number one of this document, an undated Department of State legal memorandum is cited which was transmitted to the OLC and which sets forth the Department of State's views on this dispute. Id. State has not provided either the document from the OLC or its memorandum cited in footnote one.
Although in its motion the Department of State does not even discuss or describe the search it conducted, it does speculate in its opposition to plaintiff's motion that, "because of differences in various records disposition schedules," merely because another agency has a Department of State memorandum, the Department of State does not necessarily have a copy of its own memorandum.
This argument does not justify the Department of State's failure to conduct a search; it is at best a post hoc rationalization for the Department of State's failure to conduct a search. Plaintiff's motion for an order compelling a search for documents responsive to the request set forth in Item One, will therefore be granted.
Items Four through Seven of plaintiff's request to the Department of State seek the following:
4. All records pertaining to the denial of entry into the United States of any Canadian citizen under Sections 212(a)(27)-(a)(29) of the McCarran Act.
5. All applications for a waiver pursuant to § 212(d)(3)(A) of the Immigration and Nationality Act made by, for, or on behalf of Canadian citizens.
6. All records recommending that excludability under § 212(a)(28) of the McCarran Act be waived for a Canadian citizen.