with or without the knowledge of the author, allow misinformation to be published. See, e.g., Military Audit Project, 656 F.2d at 744 (speculating that information revealed in a book by former CIA director William Colby represented a "fallback story" meant to cover up the true purposes of a CIA operation). More generally, books precleared by the government "are received as the private product of their authors, like any other memoirs, and are accorded such respect as their content seems to deserve." Afshar, 702 F.2d at 1134. As a consequence, there is no reason to presume that books subject to prepublication review are reliable.
In summary, neither Exemption 1, Executive Order 12356, nor the case law announces a special rule for dealing with information that is already in the public domain. The presence of such information is, however, relevant to the determination, required by E.O. 12356, that disclosure of the information in question "reasonably could be expected to cause damage to the national security." E.O. 12356 § 1.3(b). By providing evidence that the information being withheld is already within the public domain, a FOIA plaintiff brings into question the government's determination that release of such information might reasonably be expected to damage the national security. Such contrary evidence, in turn, requires the Court to investigate the agency's declarations more closely and determine whether the agency has answered the questions raised by the plaintiff's evidence. Any such response must, of course, be afforded the "substantial weight" always accorded executive department determinations on such issues. However, in the absence of any response, an agency cannot meet its burden of proof under the FOIA.
With these general principles in mind, it is now time to turn to the specific categories of information in the public realm identified by the Special Master.
The three categories of public disclosures identified by the Special Master -- "changed circumstances," "non-official release," and "open secrets" -- each present an analytically different facet of the problem of information in the public domain. Each category is treated separately below.
As noted above, "changed circumstances" refers to information that has been officially released. With regard to such information, the DOD advances two broad arguments. First, it contends that Armstrong has not met his burden of demonstrating that the information in particular documents is identical to information that has been previously and officially disclosed. See, e.g., Hopgood Declaration, Enclosure 3, at 1 (discussing Document A-2). Second, the DOD argues that some information cannot be disclosed without threatening the national security because "release of such information in the context in which it is discussed would damage national security." Defendant's Response to Plaintiff-Intervenor's Second Statement of Issues at 21. Both arguments sweep too broadly.
The DOD's first argument misconstrues the proper distribution of the burdens of proof in FOIA actions. It is true that the government is not required to search the public domain for information within the scope of a given FOIA request. Such a requirement would make the government's task "virtually limitless." Lamont v. Dep't of Justice, 475 F. Supp. at 772 & n. 43. Accordingly, "a plaintiff asserting a claim of prior disclosure must bear the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld." Afshar, 702 F.2d at 1130 (citations omitted). Armstrong has, however, met that burden. He has submitted four volumes of public source materials and, in an accompanying memorandum dated January 23, 1990, he has identified the information within those sources that, he asserts, duplicates information in the working files. Armstrong does not, as the DOD suggests, have the additional burden of proving that the information submitted by him is identical to the information contained in specific passages in specific documents in the working files. Under the FOIA, the agency bears the ultimate burden of proof. See 5 U.S.C. § 552(a)(4). Nothing in the statute suggests that this ultimate burden of proof shifts to the plaintiff merely because information in the public realm is involved. Indeed, such a shift in the burden of proof would undermine the goals of the FOIA. It is well-settled that the FOIA "sets forth a policy of broad disclosure of Government documents in order to ensure an informed citizenry vital to the functioning of a democratic society." FBI v. Abramson, 456 U.S. 615, 621, 72 L. Ed. 2d 376, 102 S. Ct. 2054 (1982) (quotation and quotation marks omitted). If, however, plaintiffs had to prove the presence of specific information in a specific document, they would almost always lose no matter how meritorious their claim, because only the agency withholding the documents knows with precision the information within those documents and alone has the means of making a comparison between that information and the public information proffered by the requester. Thus, the DOD's suggested allocation of the burden of proof not only has no foundation in the statute; it would also frustrate Congress' well-settled intentions in passing the statute. The DOD must instead bear the burden of comparing the proffered information with the information being withheld, determining whether the information is identical, and, if it is not, determining whether release of the perhaps only slightly different information being withheld would harm the national security.
The DOD's second contention also sweeps too broadly. As mentioned before, information already in the public domain may be withheld because disclosure of that information in a particular context would reveal additional information detrimental to the national security. See Afshar, 702 F.2d at 1130. This justification cannot, however, be applied indiscriminately or in a conclusory fashion. See, e.g., Hayden, 608 F.2d at 1387 (noting that an agency's declarations "will not suffice if the agency's claims are conclusory, merely reciting statutory standards, or if they are too vague or sweeping") (footnote omitted). Each justification for withholding must explain the logical connection between the rationale for withholding and the information withheld. See, e.g., Salisbury, 690 F.2d at 970.
This failure to provide a sufficiently detailed justification infects two of the documents identified by the Special Master. The Special Master points out that on page one of Document A-359, the names of several agencies whose involvement in the hostage rescue attempt has been officially acknowledged are withheld. See Special Master's Description of Sample Documents at 15 - 16. The rationale in the Hopgood Declaration for withholding this information is that "disclosure of this information would reveal intelligence sources and methods used for planning and execution of US counter-terrorism missions. This would assist potentially hostile forces in countering future efforts or monitoring intelligence activities for warning of US counterterrorism operations." Hopgood Declaration, Exhibit B, Document A-359. The Rice Declaration and the classified declaration filed in 1985 provide similarly terse explanations. In light of the official disclosure of the involvement of some of those agencies in U.S. counterterrorism operations, these explanations are not sufficient. Their concern over the damage that disclosure of a particular agency's involvement might well be misplaced if such damage has already been done. A more particularized explanation, taking into account the presence of such information in the public realm, is necessary in order to justify continued withholding of that information. Similarly, in document B-49, evidence presented by Armstrong brings into question at least one of the rationales for withholding in the classified affidavit. See Special Master's Description of the Sample Documents at 17. Here again, in order to meet its burden of proof, the DOD must explain what justifies continued withholding of this information now that the cat is out of the bag -- even if it determines that the explanation must be made in camera.
The second category of public domain information identified by the Special Master, "non-official releases," concerns information that has been publicly disclosed, but in unofficial sources. The problem here, as suggested above, is that several former government officials involved in the operation have written books about the hostage rescue attempt.
Here again, the DOD has failed to explain why, in light of the disclosure of such information in such an apparently credible form, further disclosure would harm the national security.
For example, in Document B-269, several code names are withheld without any apparent consideration of the fact that those code names have been revealed in books by high government officials with personal knowledge of the hostage rescue attempt. Because those books would appear to have a good deal of reliability, there would seem to be little reason to doubt their accuracy. There remains to be explained how official disclosure of these names at this time would damage the national security. Accordingly, the accompanying order will require the DOD to explain its decision to withhold these code names.
The Special Master noted that in Document I-439 the DOD failed to explain why disclosure of information disclosed in unofficial sources would damage the national security. See Special Master's Description of the Sample Documents at 12. The Hopgood Declaration justifies withholding in its entirety an intelligence report concerning information from a specific source on the ground that "disclosure of this information would reveal a particular intelligence source and method used in preparation for the hostage rescue attempt, and could preclude future use of similar activities." Hopgood Declaration, Exhibit B, Document I-439. However, the classified declaration submitted in 1985 neither described the method at issue nor explained why revealing that method would harm the national security. Furthermore, the source can be discerned from the date of the report and information in a book published by what appears to be a reliable author. See Special Master's Description of the Sample Documents at 12. Most importantly, there is no discussion of why this information cannot be segregated from the rest of the apparently factual information in the report. The classified affidavit provides another, sufficient justification for withholding the information at the end of the document, but it, too, fails to explain why that information cannot be segregated from the other, largely factual, information in the document. Accordingly, the accompanying order will require the DOD to explain its decision to withhold the information in Document I-439 and to classify one of its justifications for doing so.
The third category and final category identified by the Special Master is "open secrets," information which is easily discernible through officially released information and common sense. For example, Document B-269, in addition to listing several agencies involved in the hostage rescue attempt whose participation has been officially revealed, also lists several agencies whose participation has not been officially revealed. The cooperation of the agencies in question in operations similar to the hostage rescue attempt has, however, been officially acknowledged, albeit in another context. Armed with this information, an expert, or indeed a knowledgeable amateur, analyst could deduce the agencies listed in Document B-269. Accordingly, the accompanying order will require the DOD to explain why it feels that release of this information would damage the national security.
When the DOD completes the review of the working files, it may wish once again to move for summary judgment. If it chooses to do so, it will have to provide significantly more detailed declarations in order to satisfy its burden of proof under the FOIA. See generally Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974).
Although the FOIA requires courts to review de novo agency decisions to withhold information, it is not necessary, nor indeed practicable, for courts to review every document withheld and every bit of information deleted. Indeed, as our Court of Appeals recognized in Vaughn v. Rosen, to do so would not only place the burden of justifying an agency's claims of exemption upon the courts; it would also practically remove plaintiffs from participating in the evaluation of their claims. See id. at 825 - 26, 828. Accordingly, in Vaughn v. Rosen, Judge Wilkey devised an indexing system to allow courts and plaintiffs alike to review an agency's decision to withhold information without having to actually inspect each bit of information withheld. See id. at 826 - 28. As later elaborated, a " Vaughn index" must "adequately describe each withheld record or deletion" by identifying the document by type and location as well as by describing the portions redacted with "as much information as possible without thwarting the exemption's purpose." King v. United States Dep't of Justice, 265 U.S. App. D.C. 62, 830 F.2d 210, 224 (1987). Such an index must also contain "a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply." Mead Data Central, Inc. v. United States Dep't of Air Force, 184 U.S. App. D.C. 350, 566 F.2d 242, 251 (1977) (citations omitted); but see Keys v. United States Dep't of Justice, 265 U.S. App. D.C. 189, 830 F.2d 337, 349 (1987) (noting that an adequate Vaughn index may use general categories and generic terms -- as long as those categories and terms are clearly responsive to the information to which they are applied).
The declarations provided by the DOD fail to satisfy these requirements. In the first place, the DOD's declarations do not describe the particular information deleted. For example, one of the lengthiest descriptions in the Rice Declaration is of Document B-269. That description is over 7 pages long. B-269 is, however, over two hundred and fifty pages long, and the declaration makes little attempt to describe each deletion. In describing four pages of prefatory material, the Rice Declaration merely states that:
The portions withheld on these pages and labeled with an A describe specific aspects of planning that form the basis for current counterterrorist planning. Those portions labeled with a B reveal general statements concerning U.S. intelligence capabilities and limitations that affected the intelligence effort. Portions labeled with a C reflect intelligence matters, activities, and methods.