be responsive to the First FOIA Request. By letter dated December
18, 1998, the Defense Intelligence Agency ("DIA"), an agency
within DOD, informed plaintiffs that it was withholding the
document under FOIA Exemption 1, 5 U.S.C. § 552(b)(1). On January
29, 1999, the court denied plaintiffs' motion for
reconsideration, thus leaving only one remaining issue before
this court: whether DIA's withholding of this document under FOIA
Exemption 1 was proper and therefore requires that the court
grant its motion for summary judgment.
A. Legal Standard
In a FOIA action, "the agency bears the burden of showing that
there is no genuine issue of material fact, even when the
underlying facts are viewed in the light most favorable to the
requester." Weisberg v. U.S. Department of Justice,
705 F.2d 1344, 1350 (D.C.Cir. 1983). In order to meet that burden, the
agency "must prove that each document that falls within the class
requested either has been produced, is unidentifiable, or is
wholly exempt from the Act." National Cable Television Assn.
v. Federal Communications Commission, 479 F.2d 183, 186
(D.C.Cir. 1973). In addition, even in the national security
context, the agency must show that reasonably segregable portions
of non-exempt information have been produced. Ray v. Turner
587 F.2d 1187, 1197 (D.C.Cir. 1978); 5 U.S.C. § 552(b). The court
reviews the claimed exemptions de novo.
5 U.S.C. § 552(a)(4)(B).
In order to meet its burden of proof, it is sufficient for the
agency to submit affidavits by individuals with personal
knowledge of the processing of the request. Weisberg v.
Department of Justice, 705 F.2d at 1351; Fed.R.Civ.P. 56(e).
This circuit has held that "if the affidavits provide specific
information sufficient to place the documents within the
exemption category, if this information is not contradicted in
the record, and if there is no evidence in the record of agency
bad faith, then summary judgment is appropriate without in
camera review of the documents." Hayden v. National Security
Agency, 608 F.2d 1381, 1387 (D.C.Cir. 1979); see Goland v.
Central Intelligence Agency, 607 F.2d 339, 352 (D.C.Cir. 1978).
In national security cases dealing with classified information,
"Congress has instructed the courts to accord `substantial
weight' to agency affidavits." Id. at 352, quoting S.Rep. No.
93-1200, 93rd Cong., 2d Sess. 12, 1974 U.S.Code Cong. & Ad. News,
FOIA Exemption 1 states that the provisions of FOIA do not
apply to matters that are "(A) specifically authorized to be kept
secret in the interest of national defense or foreign policy and
(B) are in fact properly classified pursuant to Executive order."
5 U.S.C. § 552(b)(1). Executive Order 12958 sets out a system of
procedures and bases for classifying national security
information. "Information may not be considered for
classification unless it concerns . . . (c) intelligence sources
and methods." Exec. Or. 12958, § 1.5(c), reprinted in
50 U.S.C.A. § 435 note (West Supp. 1998).
In support of its motion for summary judgment, defendant DIA
states the following:
As explained in the Richardson declaration, the
information discussed in the document at issue was
obtained from classified sources and methods and `the
release of any portion of the material would tend to
reveal those sources and methods used to collect the
material.' . . . The disclosure of those sources and
methods `reasonably could be expected to enable
foreign authorities to identify U.S. intelligence
activities, methods and sources and to take counter
measures which would damage the ability of the U.S.
government to acquire information that is often
critical to the formulation of
U.S. foreign policy and the conduct of foreign
Defs. Mot. at 7.