AMERICAN LIBRARY ASS'N v. FAURER
631 F.Supp. 416 (1986)
AMERICAN LIBRARY ASSOCIATION, et al., Plaintiffs,
v.
Lincoln FAURER, Director, National Security Agency, Defendant.
Civ. A. No. 84-481.
United States District Court, District of Columbia.
March 27, 1986.
Mark H. Lynch, Susan W. Shaffer, American Civil Liberties Union Foundation, Washington, D.C., Leonard Rubenstein, Virginia Civil Liberties Union, Washington, D.C., for plaintiffs.
Vincent Mr. Garvey, Alan L. Ferber, Civil Div., Dept. of Justice, Washington, D.C., for defendant.
OPINIONJUNE L. GREEN, District Judge.
This matter is before the Court on defendant's motion to dismiss or in the alternative for summary judgment ("Defendant's Motion for Summary Judgment"); plaintiffs' motion for summary judgment; an in camera inspection of the classified affidavit of Mr. E. Rich, Deputy Director, National Security Agency; and the entire record herein. For the reasons below, the Court grants defendant's motion for summary judgment.
I. BackgroundPlaintiffs, an historical researcher and several library and historical organizations,1 filed the instant action for declaratory and injunctive relief, seeking access to 34 documents donated to the George C. Marshall Library ("Library") by William Friedman, a former employee of the National Security Agency ("NSA"). The documents at issue include 31 now-classified pieces of private correspondence and three government publications. The basic facts surrounding the donation of these disputed documents and the controversy arising from their withdrawal from public access are simple and uncontested. In 1969, Mr. William Friedman, a noted cryptologist who had worked for the NSA and its predecessor agencies, decided to donate his personal collection of letters, papers, and memorabilia ("Friedman Collection") to the Library. After his death in 1969, the Friedman Collection was transferred from his home to the George C. Marshall Library, located on the campus of the Virginia Military Institute in Lexington, Virginia. The Library maintains custody of the papers of certain former government officials.
Public access to the Friedman Collection, however, was not available until Ronald Clark, a biographer, published a biography of Mr. Friedman. While conducting his research, Mr. Clark, with NSA's knowledge, had complete and unrestricted access to the collection during a two-week period of review spent at the Library in late 1975. The collection was opened eventually to the public in January 1978.
1. The named plaintiffs in this suit include the American Library Association, the District of Columbia Library Association, the Virginia Library Association, the American Historical Association, the Organization of American Historians, the Center for National Security Studies, and Mr. Jay Peterzell.
2. The Court notes with interest that defendant admits that "[t]he documents identified as sensitive were not marked as classified, though NSA intended that they be treated by the Library as such." Affidavit of Meyer J. Levin ("Levin Affidavit") ¶ 8.
3. The current archivist, John Jacob, compared the items classified by Meyer J. Levin in February 1984 with the list of items segregated, but not classified by Vincent Wilson in November and December 1976 and found that no more than six of the currently classified letters were among those segregated in 1976. Affidavit of John Jacob ("Jacob Affidavit") ¶ 8. This means that at least 25 of the currently classified pieces of correspondence were available to the public between January 1978 and April 1983. The remaining six items were made available to the public by the archivist, Anthony Crawford, without NSA's approval between October 1979 and April 1983.
4. Executive Order No. 12,065, 3 C.F.R. 190 (1979), which went into effect on December 1, 1978, was superseded by Executive Order No. 12,356, 3 C.F.R. 166 (1982), reprinted in 50 U.S.C. § 401 note at 51 (1982), on August 1, 1982. Therefore any claims by plaintiffs of improper classification under Executive Order No. 12,065 are moot.