Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.
Dissenting opinion filed by Circuit Judge MacKINNON.
J. SKELLY WRIGHT, Circuit Judge:
This is an action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1970), as amended (Supp. V 1975), in which plaintiff-appellant seeks to compel the Central Intelligence Agency to disclose certain records alleged to be in its possession concerning its relationship with the Hughes Glomar Explorer.
In March 1975 several news organizations published stories purporting to describe a secret operation conducted by the United
Following publication of these stories, other stories described the alleged efforts of the CIA to convince the news media not to make public what they had learned about the Glomar Explorer. The latter stories interested appellant, a journalist, and she filed a FOIA request for all Agency records relating to the reported contacts with the media.
App. 9. Accordingly, the Agency asserted that the information was covered by FOIA's exemption for information "specifically exempted from disclosure by statute." 5 U.S.C. § 552(b)(3).
Appellant filed her complaint in the District Court two and a half months later. She then moved to require the Agency to provide a detailed justification for each document claimed to be exempt from disclosure. See Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). The Government responded with a motion to dismiss or for summary judgment and a motion for leave to submit all material related to the case to the court in camera. The first motion was supported by two sealed affidavits, one classified secret and the other top secret. The second motion was accompanied by a public affidavit in which the Deputy Under Secretary for Management of the Department of State affirmed "that the information relevant to the United States Government case has been classified * * * on the ground that public disclosure would damage the national security, including the foreign relations of the United States." App. 26. The District Court refused to examine all of the material in camera but did consider the two sealed affidavits. On December 1st the court granted the Agency's motion for summary judgment on the ground that
App. 2. In the same order the court denied appellant's motions to have her counsel participate in any in camera examination and to require the Agency to provide a Vaughn index.
Thus we are dealing with a case in which the Agency has refused to confirm or deny the existence of materials requested under the FOIA, and its refusal has been upheld by the District Court. In effect, the situation is as if appellant had requested and been refused permission to see a document which says either "Yes, we have records related to contacts with the media concerning the Glomar Explorer" or "No, we do not have any such records." On appeal appellant does not assert that the Government may never claim that national security considerations require it to refuse to disclose whether or not requested documents exist. Reply br. at 9. Rather, her principal argument, and the only question we decide, is that the Agency should have been required to support its position on the basis of the public record.
It is clear that the FOIA contemplates that the courts will resolve fundamental
Before adopting such a procedure, however, the District Court should attempt to create as complete a public record as is possible. In camera examination has the defect that it "is necessarily conducted without benefit of criticism and illumination by a party with the actual interest in forcing disclosure." Vaughn v. Rosen, supra, 157 U.S.App.D.C. at 345, 484 F.2d at 825. In the ordinary case we have attempted to remedy this defect by requiring a detailed public justification for any claimed right to withhold a document. That justification must be accompanied by an index which correlates the asserted justifications with the contents of the withheld document. The detailed justification and index can then be subjected to criticism by the party seeking the document. If in camera examination of the document is still necessary, the court will at least have the benefit of being able to focus on the issues identified and clarified by the adversary process. See id., 157 U.S.App.D.C. at 346-348, 484 F.2d at 826-828. Congress has specifically approved these procedures. S.Rep. No. 93-854, 93d Cong., 2d Sess. 14-15 (1974).
Adapting these procedures to the present case would require the Agency to provide a public affidavit explaining in as much detail as is possible the basis for its claim that it can be required neither to confirm nor to deny the existence of the requested records.
By supplemental memorandum appellees have now adopted in this court the rationale set forth in an affidavit submitted by Brent Scowcroft, Assistant to the President for National Security Affairs, as the basis for their continuing refusal to confirm or deny the existence of any of the records requested by appellant Phillippi. Scowcroft's affidavit was submitted in the case of Military Audit Project v. Bush, 418 F.Supp. 876 (D.D.C.1976), in which the plaintiff sought copies of the contracts for construction and operation of the Glomar Explorer. The Scowcroft affidavit, which was preceded in that case by a less informative affidavit from the Government, asserted that the requested documents could not be released, nor their existence confirmed or denied, because "[o]fficial acknowledgment of the involvement of specific United States Government agencies would disclose the nature and purpose of the Program and could, in my judgment, severely damage the foreign relations and the national defense of
Of course, the rationale that Mr. Scowcroft set forth and which appellees here seek to adopt differs significantly from the argument on which the Agency initially relied.
We reject this conclusion for two reasons. First, we are not convinced that appellant, through appropriate discovery
The judgment of the District Court is reversed and the case is remanded for further proceedings in conformity with this opinion.
MacKINNON, Circuit Judge (dissenting):
The foregoing opinion would treat this demand on the Central Intelligence Agency (CIA) for "all records" of a certain character "relating to the activities of the Glomar Explorer. . . ." (App. 7) as though it were a normal request under the Freedom of Information Act (FOIA). But it is not. By statute the CIA is specifically exempt from "any other law" which would require it to disclose any of the "functions . . . of [its] personnel." This is not a discretionary statute
Appellant seeks to use the FOIA as the base for her demand but the disposition of her request is controlled by the specific provisions of the CIA statute. The Act establishing and controlling its operations provides that the CIA
The Freedom of Information Act recognizes this special statute when it provides that its general requirements that certain agencies make available to the public certain information:
5 U.S.C. § 552(b)(1)(A).
Thus, when the foregoing opinion attempts to apply FOIA procedures to appellant's request by its assertion: "It is clear the FOIA contemplates that the courts will resolve fundamental issues in contested cases on the basis of in camera examinations of the relevant documents," p. ___ of 178 U.S.App.D.C., p. 1012 of 546 F.2d supra, it fails to recognize the "exempt" status of the Agency, created, not only by the FOIA which recognizes the special status of the CIA, but created primarily by its own separate special statute.
Since the CIA is thus specifically exempted from the FOIA by the Act creating it, the CIA need only assert this fact when it refuses "the publication or disclosure of the . . . functions . . .." etc.
422 U.S. at 270, 95 S.Ct. 2140, 2149. Justice Marshall also concurred in the opinion by Justice Stewart.
The procedural aspects of the Freedom of Information Act thus need not be complied with by the CIA because when the Act provides that the Agency is "exempted from the . . . provisions of any other law . . .," etc.,
In this case, it is clear that complying with appellant's request could result in the "publication and disclosure of the . . . functions" of the Agency in a highly secret activity definitely related to national security. That is precisely the type of information the Act was designed to protect.
FAA Administrator v. Robertson, supra, held that the Federal Aviation Administration, by virtue of the subsection (3) exemption of the Freedom of Information Act, was not required to comply with the demand that it produce certain Systems Worthiness Analysis Program Reports made by the airlines to the FAA as part of its safety program. Its claim of exemption was based on 49 U.S.C. § 1504 (1970), which provides:
Robertson held that this discretionary statute satisfied the terms of subsection (3) of the FOIA.
Following the Robertson decision, the 94th Congress amended subsection (3) to read as follows:
Pub.L. 94-409, § 5(b), 90 Stat. 1247 (Sept. 13, 1976).
This amendment does not become effective until 180 days after the date of its enactment, so it is not controlling here; but it is important to note because it plainly indicates that, even after it does become effective, the CIA exemption will still continue. In fact, it will even be strengthened because exemption (3) will then specifically exempt from disclosure all matter in those instances where the
(Emphasis added). The CIA statute is such a statute because it is not couched in discretionary terms, but specifically "leave[s] no discretion" that
50 U.S.C. § 403g (1970).
That the present request would violate this statute, both as presently interpreted and as it would be interpreted after the 1976 amendment, is too clear to require further discussion. The CIA statute was designed specially to prevent what my colleagues' opinion would require—disclosing top secret information in order to protect it from disclosure. It is sufficient that the agency has pointed to the applicable statute.
I respectfully dissent.
The classification system is established by Executive Order 11652, 3 C.F.R. at 339 (1974).
In fact, in response to two different Supreme Court decisions amendments have recently been enacted which narrow the scope of each of the exemptions on which the Agency here seeks to rely. After the decision in Environmental Protection Agency v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119, (1973), in which the Supreme Court construed the § 552(b)(1) (i. e., "Executive order") exemption broadly and denied the plaintiffs access to the information they sought, Congress moved promptly to overrule the decision and limit the exemption. See 5 U.S.C. § 552(a)(4)(B) (Supp. V 1975); 5 U.S.C. § 552(b)(1) (Supp. V 1975); S.Rep. No. 854, 93d Cong., 2d Sess. 13-15 (1974). Even more recently, in the Government in the Sunshine Act, Congress limited the § 552(b)(3) exemption to the FOIA as follows:
Pub.L. 94-409, § 5(b), 94th Cong. (Sept. 13, 1976). Specifically, in the discussion of the amendment in the final Conference Report it is stated, "The conferees intend this language to overrule the decision of the Supreme Court in Administrator FAA v. Robertson, 422 U.S. 255, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975)"—a decision on which the dissent relies and in which § 522(b)(3) was construed broadly with respect to an exemption statute not involved in this case. See S.Rep. No. 94-1178, 94th Cong., 2d Sess. 25 (1976); H.R.Rep. No. 94-1441, 94th Cong., 2d Sess. 25 (1976). This latest amendment shows plainly that Congress is determined that the exemptions to the FOIA should be interpreted narrowly.
So far as appears from the public documents in this case, the Agency never asserted the relevance of this provision.
Brent Scowcroft's Answers to Plaintiffs' Interrogatories, Answer to Interrogatory No. 22, filed in Military Audit Project v. Bush, 418 F.Supp. 876 (D.D.C.1976) (emphasis in original). Yet documents released by the Government in United States v. County of Los Angeles, supra note 9, indicate that the vessel was to be operated in a "recovery program" conducted for the United States under "`commercial' cover." Appellant's reply br. at Add. B-20; see id. at B-18 (United States to indemnify agent for liability "arising out of operational performance under this Agreement"); id. at B-25 ("WHEREAS the Sponsor [the United States Government] desires to enter into a covert contract with the Contractor for the delivery of the integrated system and the operation thereof to perform the mission and WHEREAS due to necessity for cover purposes to operate the mission under the guise of an overt commercial deep sea mining project * * *"); id. at B-26, B-29. See also id. at B-35 (affidavit of Summa Corporation official, filed in support of Government's motion for summary judgment, stating that "the United States Government has had and exercised full control and direction of the Hughes Glomar Explorer"); id. at B-38 to B-39 (affidavit of Global Marine Inc. official, filed in support of Government's motion for summary judgment, stating that vessel has been under dominion and operational direction of United States Government from its launch until present time); id. at B-41 to B-42 (affidavit of ship's master, filed in support of Government's motion for summary judgment, stating that vessel had been used only in performance of a United States Government classified project).
We understand the District Court's citation of 50 U.S.C. § 403g also to be a reference to the Agency's authority and responsibility to prevent unauthorized disclosures of intelligence sources and methods. See S.Rep. No. 93-854, supra, at 16; H.R.Rep. No. 93-1380, supra, at 12. In its brief, however, the Agency suggests that § 403g's reference to withholding information about the "functions * * * of personnel employed by the Agency," see note 6 supra, allows the Agency to refuse to provide any information at all about anything it does. See appellees' br. at 26-29. This argument, on which our dissenting colleague relies, would accord the Agency a complete exemption from the FOIA. We do not think that § 403g is so broad. Cf. Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362, 1367-1368 (4th Cir.), cert. denied, 421 U.S. 992, 95 S.Ct. 1555, 43 L.Ed.2d 772 (1975).
Section 403g is intended "further to implement the proviso of section 403(d) * * * that the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure * * *." This limited purpose is explicitly recognized in the congressional reports cited above, and there is no indication that the section is to be read as a provision authorizing the Agency to withhold any information it may not, for some reason, desire to make public. Moreover, the wording of the section strongly suggests that the authority it confers is specifically directed at any statutes that would otherwise require the Agency to divulge information about its internal structure. The legislative history of the section supports this limited interpretation. See S.Rep. No. 106, 81st Cong., 1st Sess. 4 (1949); H.R.Rep. No. 160, 81st Cong., 1st Sess. 5 (1949). Finally, we note that the Agency itself apparently considered § 403g a limited provision inapplicable to this case, since it did not assert the section as a basis for denying appellant's FOIA request in either its administrative responses to appellant or its filings with the District Court.
On remand the District Court may also consider the applicability of the FOIA's first exemption, which applies to classified information. The Agency claimed this exemption in its first response to appellant and at all subsequent stages of this proceeding. Since information which could reasonably be expected to reveal intelligence sources and methods would appear to be classifiable, see Executive Order 11652, supra note 2, 3 C.F.R. at 340, and since the Agency has consistently claimed that the requested information has been properly classified, inquiries into the applicability of the two exemptions may tend to merge.
(Emphasis added). Subsection (b)(1)(A) also furnishes a ground for exemption in this case but that exemption is less broad and might involve a more elaborate showing than is required under subsection (b)(3).
The complaint also asserted: