Opinion for the Court filed by District Judge GESELL.
GESELL, District Judge:
This is an appeal arising under the Freedom of Information Act, 5 U.S.C. §§ 552 et seq. Appellant Weissman challenges an order of the District Court granting summary judgment in favor of the Central Intelligence Agency which refused to turn over certain documentary material to Weissman claiming that disclosure was not required because of three exemptions found in § 552(b) of the Act. The appeal focuses on the scope of these statutory exemptions as well as upon the procedures by which the availability of such FOIA exemptions is to be determined at the trial court level.
In February, 1975, Weissman wrote the CIA expressing his alarm at news stories suggesting that investigative activities of the Agency had been directed against left-of-center political activists. Stating that he had been active in political reform during the 1960's, he requested "to see all files completed on me by the CIA." The CIA advised that "Unbeknown to Mr. Weissman he was considered for employment by this agency in the 1950's . . .." A substantial amount of documentary material was thereafter released to Weissman. These papers disclosed that from 1958 to 1963 Weissman, without his knowledge or permission, was under a periodic but continuing investigation by the Agency for potential use as a witting agent to provide information about foreign activities in which he might participate, such as the VII Youth Festival held in Vienna in 1959. Detailed
All or part of over 50 documents developed by the CIA during its investigation were withheld. Since much of this material gathered by the Agency was classified as confidential, contained information concerning agents' names, sources and procedures, or was considered part of an investigation compiled for law-enforcement purposes, the Agency in particularizing each document withheld claimed exemption under 5 U.S.C. § 552(b)(1), (3) or (7). After Weissman brought suit to compel disclosure, the Agency moved for summary judgment. Upon hearing the motion and considering the supporting affidavits, the District Court accepted the Agency's position. This appeal followed.
When Congress enacted the FOIA it recognized the obvious difficulties that would inevitably arise when disclosure was sought of documents touching on sensitive matters affecting law enforcement and national security. The Act, however, gave only general guidance in seeking to protect material of this type, and it has been left to the courts to develop standards and procedures in the light of experience with this delicate area.
The exemptions claimed in this instance, as set forth at 5 U.S.C. § 552(b), remove from the disclosure obligations of the FOIA matters that are
I. EXEMPTION UNDER 5 U.S.C. § 552(b)(3)
In this instance, the Agency placed principal reliance on exemption (b)(3).
II. EXEMPTION UNDER 5 U.S.C. § 552(b)(7)
The Agency also withheld material pursuant to exemption (b)(7) which shields from disclosure certain records compiled for law-enforcement purposes. This claim to exemption is misplaced, as appellant strenuously contends.
The National Security Act of 1947, which created the CIA
The Agency has been given far-reaching authority to gather information and to conduct intelligence activities abroad. These vital functions are liberally financed and concern national security. It is generally accepted that the Agency, in both its reporting and operational functions, serves an essential role in the development and implementation of foreign policy. The Agency, of course, proceeds in secret. Many of its operations are covert, and since the stakes are high few are in a position to know or to question the manner by which it carries out its work. It has the power that flows from money and stealth. Congress was well aware such activities create a potential for abuse, and chose to limit the Agency's activities to intelligence gathering abroad. It was unwilling to make it a policeman at home, or to create a conflict between the CIA and the FBI.
The legislative history of the CIA enabling act is sketchy, but these concerns are abundantly clear. Congress wisely sought from the outset to make sure that when it released the CIA genie from the lamp, the Agency would be prevented from using its enormous resources and broad delegation of power to place United States citizens living at home under surveillance and scrutiny. It denied the Agency police or internal-security functions to obviate the possibility that overzealous representatives of the CIA might pry into the lives and thoughts of citizens whose conduct or words might seem unconventional or subversive. Thus, during floor debates in the House, for example, a member of the Committee which considered the legislation stated:
Congress had a realistic fear of secret police that would move inward rather than outward, and assume prerogatives never intended. While the 80th Congress obviously, and for good reason, wished to protect America's security, it had no intention of making the mistake of creating an American "Gestapo."
In spite of this congressional awareness and insistence, the CIA hopes to find support for this type of investigation into a citizen's background by reference to 50 U.S.C. § 403(d)(3), which, while denying the CIA any internal security functions, also states ". . . the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure." This provision contains no grant of power to conduct security investigations of unwitting American citizens. As the Rockefeller Commission noted,
Whatever may be the power to check on its own personnel,
Thus, the Agency's interpretation of the sources and methods proviso is misplaced. A full background check within the United States of a citizen who never had any relationship with the CIA is not authorized, and the law-enforcement exemption is accordingly unavailable. The Agency simply has no authority in the guise of law enforcement to make such a background check of Weissman with a view to his possible recruitment.
III. IN CAMERA INSPECTION
Finally, appellant contends that by refusing to conduct an in camera examination of documents before sustaining Agency claims of exemption under sections (b)(1), (3) and (7), the District Court failed to follow proper procedures. He asserts that an in camera inspection of documents withheld under (b)(1) was especially necessary because the affidavits were not sufficiently detailed to permit scrutiny of the Agency claims. He also urges that the in camera procedure was required to check the truthfulness of Agency claims under each exemption, and to conduct a line-by-line analysis of documents withheld under each exemption to cull out any non-exempt material.
While the FOIA itself now provides for in camera inspections, 5 U.S.C. § 552(a)(4)(B),
We adopted this view in Vaughn v. Rosen, which specified that where the public record is sufficient to permit a legal ruling, the inquiry need go no further, 157 U.S.App.D.C. 340, 484 F.2d 820, 824 (1973); see also, Environmental Protection Agency v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), and indicated in Phillippi v. Central Intelligence Agency, supra, that in camera proceedings are particularly a last resort in "national security" situations.
The reluctance of Congress and the Courts to require in camera inspection is well founded. In camera inspections are burdensome and are conducted without the benefit of an adversary proceeding. Vaughn, supra, at 824. A denial of confrontation creates suspicions of unfairness and is inconsistent with our traditions.
Additional considerations apply to in camera proceedings under exemption (b)(1) where classification of documents is involved. Few judges have the skill or experience to weigh the repercussions of disclosure of intelligence information. Congress was well aware of this problem when it amended the FOIA to permit in camera inspection in exemption (b)(1) cases.
In every FOIA case, there exists the possibility that Government affidavits claiming exemptions will be untruthful. Likewise, in every FOIA case it is possible that some bits of non-exempt material may be found among exempt material, even after a thorough agency evaluation. If, as appellant argues, these possibilities are enough automatically to trigger an in camera investigation, one will be required in every FOIA case.
When Congress amended the FOIA in 1974 to provide that any reasonably segregable non-exempt portion of an agency record should be released, 5 U.S.C. § 552(b) (Pub.L. 93-502 § 2(c)), this addition was meant to endorse judicial decisions holding that Congress did not intend to exempt an entire document "merely because it contained some confidential information."
The CIA dealt with the instant request in a conscientious manner. It disclosed much material, it released additional material as the result of an administrative appeal, and it came forward with newly discovered documents as located. Agency documents have been released to plaintiff-appellant on four separate occasions.
As the above discussion indicates, the trial judge was well within his discretion in refusing to order an in camera examination. The Agency claims for exemptions under section (b)(1) and (b)(3) were properly sustained. However, exemptions under section (b)(7) are not available to the CIA except under special collateral circumstances.
See also Senator Muskie's remarks during the floor debate preceding the Senate's vote to override President Ford's veto of the amendments. 120 Cong.Rec. 36870 (1974) ("The judge would be required to give substantial weight to the classifying agency's opinion in determining the propriety of the classification.")