agencies' support provided to the Warren Commission, including opinions expressed concerning CIA policy matters generated by the Congressional inquiries, leading to recommendations. Carle Declaration, para. 31. After in camera inspection of this document, the Court concludes that Exemption 5 was properly applied to this document, and that the Carle Declaration was accurate.
2. Exemption 6.
CIA claims that certain information contained in Document No. 7 is excluded under Exemption 6 which exempts from FOIA matters that are "personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." The Carle Affidavit states that this material consists of "a summary of personal information contained in a security file, compiled for purposes of determining [a person's] suitability for access to classified information," and adds that disclosure would violate the personal privacy of the subject "by revealing details of their actions and whereabouts."
Plaintiff argues that details of actions and whereabouts are not the sort of information likely to "subject the person to whom they pertain to embarrassment, harassment, disgrace, loss of employment or friends." Brown v. Federal Bureau of Investigation, 658 F.2d 71, 75 (2d Cir. 1981). After in camera inspection, the Court finds that the Carle Declaration properly applied exemption 6. The information contained in Document No. 7 would constitute an unwarranted invasion of an individual's privacy. CIA claimed to have balanced the public interest in disclosure against the degree of intrusion into the privacy of the individual named in the document. The information being withheld is a summary of personal information contained in a security file, compiled for purposes of determining the person's suitability for access to classified information; Carle evidently considered that the requester's interest was primarily for information on George Bush, so that information concerning the personal details of other persons would be "slight." Carle was unable to specify any overriding public interest which would require disclosing the information pertaining to this individual. Lastly, Carle determined that the nature of the information is such that disclosure would violate the privacy of the person concerned. The Court agrees with these conclusions.
3. Exemptions 1 and 3.
These exemptions are being used by CIA to withhold information pertaining to intelligence sources and methods. Exemption 1 permits withholding of matters 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." This means that in order to withhold information under this exemption, the agency must demonstrate that the classification of the document meets both the procedural and substantive criteria of the executive order. Allen v. Central Intelligence Agency, 205 App. D.C. 159, 636 F.2d 1287 (D.C.Cir. 1980).
CIA is withholding information under color of Executive Order 12356, which is the most recent order on classification for purposes of national security. Section 1.3(a)(4) of E.O. 12356 lists "intelligence sources" or "methods" as among the substantive categories of information subject to classification. The Order also states that information in those categories shall be classified if "its unauthorized disclosure . . . reasonably could be expected to cause damage to the national security," defined (§ 6.1(e)) as "the national defense or foreign relations of the United States."
Essentially, plaintiff's argument is that the information it seeks is old. It also argues that CIA's claims that national security will be damaged by release are too broad, and are simply conclusory. This argument prevailed in King v. Department of Justice, 265 U.S. App. D.C. 62, 830 F.2d 210 (D.C. Cir. 1987), where the Court of Appeals reversed the District Court for deferring to the agency's judgment that the sensitivity of old information had not diminished with age.
However, defendant responds that intelligence sources and methods cannot be adequately protected, and CIA cannot perform its function, unless sources are secure in the knowledge that their identity will be protected forever. Carle Supplemental Declaration para. 6-12. This provides an adequate basis for distinguishing the King case upon which plaintiff relies, because that case concerned the Department of Justice rather than the CIA, and the security requirements of an intelligence agency are uniquely different from those of other agencies, including, reasonably, the expectation that more time must elapse before identities and methods can be revealed safely. Furthermore, King was decided not under Executive Order 12356 but under Executive Order 12065, its predecessor. Executive Order 12356 is more protective of classified information than 12065 was, which might affect the holding of cases like King.
Exemption 3 is being invoked simultaneously with Exemption 1 to protect the same documents. The use of Exemption 3 in this case is based on the National Security Act of 1947, which provides that "the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosures." Plaintiff argues that CIA has exceeded the broad mandate of this statute by including all "sources," not just sources which provide information concerning "foreign intelligence." For example, Document No. 11 contains a note on a Washington Star article about the Kennedy assassination which deletes the name of someone at that paper; defendant has deleted this information solely on the grounds that it could identify a "source." Plaintiff argues that this sort of information is neither "intelligence" nor related to foreign affairs, and that therefore the National Security Act does not instruct the Director of Central Intelligence to protect this information.
Defendant responds by arguing that the information contained in the documents sought to be exempted under Exemption 1 fall into the following general categories of information which permit classification under E.O. 12356:
1. Information concerning intelligence sources or methods;
2. Information concerning intelligence activities;