Opinion Per Curiam.
Opinion filed by WRIGHT, Chief Judge, concurring in the remand.
This appeal presents the question whether the district court erred in dismissing a lawsuit under the Freedom of Information Act (FOIA) upon the basis of affidavits supplied by an official of the Central Intelligence Agency (CIA). We find there was error and remand.
I. PROCEDURAL BACKGROUND OF LITIGATION.
Plaintiffs (appellants) Ellen Ray and William Schaap sent identical letters to the CIA requesting "a copy of any file you may have on me." The CIA replied that while it did not have files on plaintiffs, there were documents in CIA files that referred to plaintiffs. The CIA refused to release those documents, and after administrative appeals were exhausted, plaintiffs brought this action under the FOIA. The CIA subsequently released portions of the withheld documents, and the government then moved for summary judgment, relying principally on affidavits of one Eloise Page. The critical affidavit, set out in the appendix, purports to describe the documents at issue and the grounds for the government's claims of exemption.
The district court granted the government's motion for summary judgment and denied plaintiffs' motion for in camera inspection.
In a key passage, the district court's opinion stressed that "there has been no credible challenge to the veracity of these averments [in the affidavits] and nothing appears to raise the issue of bad faith." In denying in camera inspection, the district court relied on Weissman v. CIA, 184 U.S.App.D.C. 117, 565 F.2d 692 (1977). Specifically, the court found with respect to Exemption 1 that
Memorandum Opinion at 3.
Regarding Exemption 3, it ruled:
Id. at 4.
On appeal, the government insists that the pertinent documents are exempt under Exemption 1 and are also exempt under Exemption 3.
II. RELEVANT CONSIDERATIONS IN FOIA CASES INVOLVING NATIONAL SECURITY ISSUES.
The FOIA was passed in 1966, as an amendment to the Administrative Procedure Act, in order to increase disclosure of government information to the American people. Agencies were required to disclose all records that did not come within one of nine explicit exemptions specified by Congress.
A. Judicial Interpretations and Legislative Modifications.
In EPA v. Mink, 410 U.S. 73, 81-84, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), the Court considered Exemption 1, which at that time covered matters "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy." 5 U.S.C. § 552(b)(1) (1970). It held that a court should not review the substantive propriety of the classification or go behind an agency affidavit stating that the requested documents had been duly classified pursuant to Executive order.
In 1974 Congress overrode a presidential veto and amended the FOIA for the express
Furthermore, the 1974 revision changed the FOIA language describing the role of a reviewing court considering any claim of exemption. It provided that "the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B) (1976). The Conference Report accompanying the amendments explained that "[w]hile in camera examination need not be automatic, in many situations it will plainly be necessary and appropriate." S.Rep. No. 93-1200, 93d Cong., 2d Sess. 9 (1974), U.S.Code Cong. & Admin.News 1974, p. 6287.
Exemption 3 originally exempted matters "specifically exempted from disclosure by statute." 5 U.S.C. § 552(b)(3) (1970). In FAA Administrator v. Robertson, 422 U.S. 255, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975), the Court held that a statute could "specifically exempt" matters from disclosure even if the statute gave an agency broad discretion to determine whether the information should be withheld.
B. The Nature of De Novo Review.
Procedures to be observed
In 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), this court sought to cope with the difficulty of providing de novo review of exemptions claimed by the government. It initiated procedures designed to mitigate the administrative burden on the courts and ensure that the burden of justifying claimed exemptions would in fact be borne by the agencies to whom it had been assigned by Congress.
The court took its cue from a portion of the Supreme Court's Mink opinion that was not overruled by Congress—the portion discussing how a court should proceed when there is a factual dispute concerning the nature of the materials being withheld.
In proposing the 1974 amendments, the Senate Committee outlined the ruling in Vaughn and added, "The committee supports this approach. . . ."
In some of the decisions involving national security issues, there has been confusion about the nature of the evidentiary burdens and the scope of the district judge's discretion. This uncertainty is due to a misunderstanding of the legislative history of the 1974 amendments.
The legislative history underscores that the intent of Congress regarding de novo review stood in contrast to, and was a rejection of, the alternative suggestion proposed by the Administration and supported by some Senators: that in the national security context the court should be limited to determining whether there was a reasonable basis for the decision by the appropriate official to withhold the document.
The salient characteristics of de novo review in the national security context can be summarized as follows: (1) The government has the burden of establishing an exemption. (2) The court must make a de novo determination. (3) In doing this, it must first "accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record."
In part, the foregoing considerations were developed for Exemption 1. They also apply to Exemption 3 when the statute providing criteria for withholding is in furtherance of national security interests.
In camera inspection
In the case at bar, the district court observed: "With respect to documents withheld under exemption 3, in camera inspection is seldom, if ever, necessary or appropriate."
In camera inspection requires effort and resources and therefore a court should not resort to it routinely on the theory that "it can't hurt." When an agency affidavit or other showing is specific, there may be no need for in camera inspection.
On the other hand, when the district judge is concerned that he is not prepared to make a responsible de novo determination in the absence of in camera inspection, he may proceed in camera without anxiety that the law interposes an extraordinary hurdle to such inspection. The government would presumably prefer in camera inspection to a ruling that the case stands in doubt or equipoise and hence must be resolved by a ruling that the government has not sustained its burden.
The issue of bad faith merits a word. The memorandum of the district court noted that there was no evidence of bad faith on the part of the Agency's officials. Where the record contains a showing of bad faith, the district court would likely require in camera inspection. But the government's burden does not mean that all assertions in a government affidavit must routinely be verified by audit. Reasonable specificity in affidavits connotes a quality of reliability. When an affidavit or showing is reasonably specific and demonstrates, if accepted, that the documents are exempt, these exemptions are not to be undercut by mere assertion of claims of bad faith or misrepresentation.
In camera inspection does not depend on a finding or even tentative finding of bad faith. A judge has discretion to order in camera inspection on the basis of an uneasiness, on a doubt he wants satisfied before he takes responsibility for a de novo determination. Government officials who would not stoop to misrepresentation may reflect an inherent tendency to resist disclosure, and judges may take this natural inclination into account.
III. RULINGS FOR THE CASE AT BAR
Two affidavits were executed by Eloise Page, Chief, Operations Staff of the Directorate of Operations of the CIA. The first is a general statement about the dangers at large of disclosure, background and local color rather than any attempt to link these concerns with specific documents. It is of little aid in the task of deciding whether the nine specific documents now sought come within the claimed exemptions.
Page's second affidavit, set out in the appendix, purports to link specific exemptions to specific documents. A glaring defect is that it lumps the exemptions together and fails to identify whether different exemptions are claimed as to different parts of each document. The statement for document 2 reads:
The statement for documents 3, 4 and 5 reads:
In reviewing the judgment on documents 2-6, we encounter a complex of difficulties. Exemption 3 permits a withholding under the provisions of 50 U.S.C. § 403g (1970), which specifies that "in order further to implement the proviso of section 403(d)(3) of this title that the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure, the Agency shall be exempted from . . . the provisions of any . . . law which require the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency . . . ." Goland v. CIA, No. 76-1800, slip op. at 16-17 (D.C.Cir., May 23, 1978); cf. Weissman v. CIA, 184 U.S.App.D.C. 117, 119, 565 F.2d 692, 694 (1977). However, in Goland, the affidavit demonstrated "in nonconclusory and detailed fashion" (slip op. at 21), that the deleted material disclosed intelligence sources and methods. The CIA's affidavit as to documents 2-6 is not a specific presentation such as that in Goland. The statement that the release of any meaningful portion of document 2 would disclose the identity of a "sensitive intelligence source" has some particularity, but it runs into a failure to address specifically whether the disclosure of substantive information may be possible without the disclosure of source, and if not why not.
As to Exemption 1, the information that document 2 relates to "Rennie Davis and Friends," might be some indication that it was reasonable for the official involved to have classified it in the first instance. But that mere reference is not enough information to permit a judge to make an independent ruling that the classification was proper.
Finally, what overhangs and in a sense pervades this case, more vivid as to document 2 but implicit as to the other documents, is the real possibility that what animates the CIA's broadsword withholding is the fact that the documents contain commentary on a group of persons, with the CIA's position being that Exemption 6 prohibits any revelation from its files about individuals other than appellants. We discuss Exemption 6 further below. It suffices here to say that we do not have any analysis of Exemption 6 by the district court, and the problem is complex.
Overall, we have a critical problem of segregability, that some portion of the document(s) may be exempt, but that the FOIA might contemplate disclosure in part. The difficulty arises from the CIA's proffer of multiple exemptions for each withheld document, and is maintained by the district court's conclusory rulings.
Page's affidavit describes document 7 as follows:
Page's affidavit identifies documents 8 and 9 as intra-agency cables concerning the same matter. It continues: "Each of these documents contains a single, peripheral and non-substantive reference to the Plaintiff Schaap. In each case, that portion has been provided to the plaintiff."
Documents 7-9 identify a particular subject: information concerning an individual under investigation for the 1971 bombing of the Capitol. There are manifest disclosure problems under Exemption 6 in view of the privacy interests of that individual, as well as under Exemptions 1 and 3. However, the CIA affidavit does not specifically claim that all of the documents (7-9) are exempt under Exemption 6, and that there are no other portions that may be reasonably segregable. And the district court's ruling was solely on Exemptions 1 and 3.
Apparently the only direct reference to Schaap in these three documents is the material that CIA has furnished to him, a bare mention of his name and address in document 7, plus the information in documents 8 and 9 that he is a partner in a law firm that has represented the Black Panther party.
The CIA does not take the position that the furnishing of these references is fully responsive to Schaap's request. It has properly refrained from an approach whereby FOIA applications are read technically and narrowly, like a common law pleading.
However, the CIA again has not been responsive to the requirement that it provide specific affidavits that segregate each of its claims. The "exemption by document" approach has been rejected by our opinions, notably Vaughn, 157 U.S.App.D.C. at 345-46, 484 F.2d at 825-26, and Mead Data Central, Inc. v. Dept. of the Air Force, 184 U.S.App.D.C. 350, 367-70, 566 F.2d 242, 259-62 (1977). The agency may not rely on that approach even in a national security context. The agency must provide a reasonable segregation as to the portions of the document that are involved in each of its claims for exemption. As indicated in Mead, it is important that the affidavit indicate the extent to which each document would be claimed as exempt under each of the exemptions. The courts cannot meaningfully exercise their responsibility under the FOIA unless the government affidavits are as specific as possible.
The withholding of document 10 cannot be disposed of on the basis of Exemptions 1 and 3, as the district court held. The government concedes that some of the information in that document is not within the ambit of those exemptions. It argues instead that there is justification for withholding under Exemptions 6 and 7. However, the district court did not rule on these exemptions. We think that their applicability should be considered in the first instance by the district court and remand for that purpose.
The applicability of Exemption 6 depends, as the Supreme Court, held in Department of Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976), on a particularized balancing of privacy interests and the "`public's right to governmental information.'" Id. at 372, 96 S.Ct. 1592 (quoting
The problem requires a balancing analysis. Before the district court considers the matter on remand, it will be able to obtain clarification as to CIA policy and approach.
* * * * * *
We remand for reconsideration of the CIA's exemption claims in light of clarification of the affidavits and for further proceedings not inconsistent with this opinion.
Eloise Page, being first duly sworn, deposes and says:
1. I am Chief, Operations Staff of the Directorate of Operations of the Central Intelligence Agency (CIA). I have personal knowledge of the facts set forth herein, which were obtained by me in my official capacity.
2. Pursuant to the above-captioned litigation, I have again examined documents number 1 through 10 and make the following additional statements as to their contents, the information withheld and the reasons therefore.
Document Statement Number 1 This document is a one-page dispatch from an overseas CIA installation to Headquarters. It transmitted a United States Army report which has been referred to the Department of the Army for their action and direct response to the plaintiff. This document has been provided to the plaintiffs with only minor deletions. The material deleted includes the location of CIA overseas installations, cryptonyms, a pseudonym and CIA organizational data. Thus exemptions (b)(1) and (b)(3) apply. 2 This document is a three-page memorandum the subject of which is "Rennie Davis and Friends." It is essentially the debriefing report of a sensitive intelligence source. The majority of the information concerns individuals other than the plaintiffs. This document has been denied in its entirety, primarily to protect intelligence sources and methods since the release of any meaningful portion would disclose
the identity of the source, and further, to protect cryptonyms, names of CIA personnel and CIA organizational data. Thus exemptions (b)(1), (b)(3) and (b)(6) apply. 3, 4, 5 These documents are one-page cables from an overseas CIA installation which advise Headquarters of the receipt of documents and information from a foreign intelligence service and which concern the plaintiffs and other individuals. They are denied in their entirety pursuant to Freedom of Information Act exemptions (b)(1), (b)(3) and (b)(6). 6 This document is a one-page dispatch which transmits to Headquarters the above-described matter received from a foreign intelligence service. It is denied in its entirety pursuant to Freedom of Information Act exemptions (b)(1), (b)(3) and (b)(6). 7, 8, 9 Document No. 7 is a three-page cable from CIA Headquarters to the Director, FBI, which provides information on an individual under investigation for the bombing of the United States Capitol on March 1, 1971. It is the report of a high sensitive, foreign intelligence source. Document No. 8 is a two-page cable from an overseas CIA installation to CIA Headquarters concerning the same matter. Document No. 9 is a two-page cable from CIA Headquarters to the same overseas CIA installation concerning the same matter. Each of these documents contains a single, peripheral and non-substantive reference to the Plaintiff Schaap. In each case, that portion has been provided to the plaintiff. The remainder of each document may not be released pursuant to Freedom of Information Act exemptions (b)(1), (b)(3) and (b)(6). 10 This document consists of a one-page memorandum which transmits a copy of a notebook containing a list of names. This list was secured by the United States Customs Service from an individual at a border checkpoint in a search incident to his arrest for importation of narcotics into the United States. The memorandum was provided to the Plaintiff Schaap with only minor deletions (names of CIA employees, organizational data concerning the CIA, name of a United States Customs Agent). Only that portion of the list containing plaintiff's name was provided. Thus exemptions (b)(1), (b)(3), (b)(6) and (b)(7)(F) apply.
J. SKELLY WRIGHT, Chief Judge, concurring in the remand:
In passing the Freedom of Information Act (FOIA) the Congress made a national
Nevertheless, the federal bureaucracy has been extremely reluctant to embrace the principle of public disclosure on which the FOIA is founded and, with significant help from the federal courts interpreting the exemptions broadly, not narrowly, has succeeded in frustrating much of its implementation—so much so that Congress has repeatedly overruled court decisions restricting disclosure by amending the Act.
This case involves an area in which courts have been especially cautious in assuming the supervisory role assigned them by Congress: requests for information whose release would allegedly endanger national security. Appellants Ellen Ray and William Schaap, stating individually their belief that they might be among "the approximately 10,000 American civilians on whom [the Central Intelligence Agency (CIA)] had concededly maintained files," sought from the CIA "any file you may have on me."
I. THE EVOLUTION OF FOIA REVIEW
In 1966 Congress amended the Administrative Procedure Act (APA) to increase disclosure of government information to the American people.
The Freedom of Information Act sought to remedy these defects by transferring from the agencies to Congress and the courts primary responsibility for determining whether information could be withheld. Several specific provisions accomplished this transfer: (1) agencies were required to disclose all records that did not come within one of nine specific exemptions written by Congress;
A. Restrictive Interpretation and Corrective Legislation: Mink and Robinson
The ambitious scheme established by the FOIA was not without its difficulties. The agencies were quick to discover ambiguities in the language of the nine exclusive exemptions, and courts have often proved too sensitive to the potential burdens of de novo review and to their alleged lack of expertise. Indeed, in two of its first FOIA cases the Supreme Court interpreted the two exemptions relied on by the District Court in this case in ways that restricted the reviewing court's role and preserved the discretion of the withholding agency. In each case Congress soon reversed the Court's interpretation by legislation.
First, in EPA v. Mink, 410 U.S. 73, 81-84, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), the Court held that when an agency relied on Exemption 1, which at that time covered matters "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy," 5 U.S.C. § 552(b)(1) (1970), a reviewing court could affirm the nondisclosure solely on the basis of an agency affidavit stating that the requested documents had been duly classified pursuant to Executive order.
The second Supreme Court case involved Exemption 3, which originally exempted matters "specifically exempted from disclosure by statute." 5 U.S.C. § 552(b)(3) (1970). In FAA Administrator v. Robertson, 422 U.S. 255, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975), the Court held that a statute could "specifically exempt" matters from disclosure even if the statute gave an agency broad discretion to determine whether the information should be withheld.
B. Creative Judicial Responses: Vaughn v. Rosen
Not all judicial decisions involving the FOIA have suffered from the restrictive attitude apparent in the aspects of the Mink and Robertson cases overruled by Congress.
This court noted the irony that, while the FOIA placed an "overwhelming emphasis upon disclosure," the facts relevant to judicial review of nondisclosure were totally within the control of the party refusing disclosure. Id., 157 U.S.App.D.C. at 343, 484 F.2d at 823. Even an in camera inspection by the court is an ex parte proceeding conducted without the adversarial assistance of the party seeking disclosure.
To bring practice more into line with the statutory mandate, this court initiated procedures designed to shift the burden of justifying nondisclosure back to the agencies and to give the party seeking disclosure a greater chance to participate in the review proceeding. The court took its cue from a portion of the Supreme Court's Mink opinion that was not overruled by Congress—the portion discussing how a court should proceed when there was a factual dispute concerning the nature of the materials being withheld.
The Vaughn procedures were an innovative step toward making de novo review a reality, but even this court has recognized that they are no panacea. See, e. g., Cuneo v. Schlesinger, 157 U.S.App.D.C. 368, 374, 484 F.2d 1086, 1092 (1973) (Bazelon, J., concurring). Commentators generally have applauded the decision,
C. Special Problems in Cases Involving National Security
While achieving the goals of the FOIA may well demand more than Vaughn requires, implementing even the minimal procedures outlined in Vaughn has proven difficult in cases that, like the one before us, involved claims of danger to national security. Persistent controversy has surrounded the question whether FOIA cases involving national security claims should be treated differently from other FOIA cases. Arguments have focused on the proper standard of judicial review and on the use of certain techniques—primarily in camera inspection—in the review process.
The Supreme Court sought to resolve this controversy when it held in Mink that courts could not question the substantive propriety of agency classifications in suits involving refusals to disclose based on Exemption 1 and that in camera inspection was therefore improper in such cases.
1. Legislative History of the 1974 FOIA Amendments
During committee consideration of the legislation that was to become the 1974 FOIA amendments, the Nixon Administration, asserting that the courts lacked the expertise to determine what information should be classified, vigorously resisted any attempt to overrule the restrictive holding of the Mink case.
The bill reported by the Senate Committee on the Judiciary, on the other hand, reflected to some degree the influence of the Administration's arguments. It provided:
S.Rep. No. 93-854, 93d Cong., 2d Sess. (1974), reprinted in Source Book, supra, at 168.
This partial victory for the Administration's viewpoint was short-lived. When the bill reported by the Committee reached the Senate floor, Senator Muskie, challenging the "outworn myth that only those in possession of military and diplomatic confidences can have the expertise to decide with whom and when to share their knowledge[,]" introduced an amendment to delete the provision establishing a special "reasonable basis" standard of judicial review in national security cases.
After the Senate had passed the amended version of its bill, the Senate and House bills were referred to a Conference Committee to iron out the differences. During the Conference deliberations President Nixon resigned and was succeeded by President Ford, who wrote to the Conference Committee to express his reservations about certain aspects of the proposed legislation. President Ford objected in particular to placing the burden on the government to justify its classification of documents in a de novo proceeding. His proposed alternative indicated the areas of controversy:
Letter from President Gerald R. Ford to Honorable William S. Moorhead, August 20, 1974, reprinted in Source Book, supra, at 380.
The Conference Committee did not adopt the President's proposal. Instead it followed the language of the Senate bill providing
S.Rep. No. 1200, supra, at 9.
With regard to Exemption 1 in particular, the Conference combined the language of the House and Senate bills to ensure that "[w]hen linked with the authority conferred upon the Federal courts in this conference substitute for in camera examination of contested records as part of their de novo determination in Freedom of Information cases, [the new language of Exemption 1] clarifies Congressional intent to override the Supreme Court's holding in the case of E.P.A. v. Mink, et al., supra, with respect to in camera review of classified documents." Id. at 12. Then, without shifting the burden of proof or weakening the requirement of de novo review or curtailing the propriety of in camera examination, the Conference Report added the following qualification with respect to judicial review in cases involving national defense and foreign policy matters:
This qualification was apparently designed to allay the fears expressed by President Ford, but the President was unwilling to accept legislation that still clearly placed the burden on the government under a de novo standard of judicial review. The President therefore vetoed the bill after both Houses of Congress had passed the Conference version.
Message from the President of the United States Vetoing H.R. 12471, H.Doc. No. 93-983, 93d Cong., 2d Sess., reprinted in Source Book, supra, at 484.
The debate on whether to override the President's veto rehearsed for one last time the arguments over the need for and the danger of de novo judicial review in cases involving issues of national security. In the wake of Watergate the sentiments of both Houses of Congress were perhaps most succinctly summarized by Senator Baker:
Source Book, supra, at 460-461.
2. Basic Principles Governing Judicial Review of FOIA Cases Involving National Security Claims
The basic thrust of the amendments is clear on the face of the bills passed by both Houses of Congress and the statute passed over the President's veto: claims of exemption from FOIA based on national security are, like all other claims of exemption, to be subject to de novo judicial review with the burden on the government and with permissive in camera examination. This court's task—one that the court's per curiam opinion in my view fails to perform adequately—is to explain what these general directions mean in practical terms and to take proper account of certain language inserted into the Conference Report in an unsuccessful attempt to compromise with the Ford Administration.
a. De Novo Review With the Burden on the Government and Permissive In Camera Inspection.
The appropriate standard of review was at the core of the controversy between Congress
The statutory requirement that review be de novo is intended to "prevent it from becoming meaningless judicial sanctioning of agency discretion." S.Rep. No. 813, supra, at 8. Congress feared more than "bad faith" in the exercise of agency discretion to withhold government information. Even "good faith" interpretations by an agency are likely to suffer from the bias of the agency, particularly when the agency is as zealous as the CIA has been in its responsibility to protect "national security."
In order to take the "fresh look" required for de novo review, a District Court must not only be aware of the relevant provisions in statutes and Executive orders, but must also know enough about the specific factual situation involved to enable it to decide for itself whether the materials are properly exempt from disclosure. The government, which bears the burden of proving that any exemption applies, can provide the District Court with the information necessary for its de novo determination in several ways. The Conference Report, in a passage responding in part to President Ford's objections, suggests that an agency should first be given "the opportunity to establish by means of testimony or detailed affidavits that the documents are clearly exempt from disclosure."
By expressly endorsing in camera examination as a technique in the de novo review of all claimed exemptions, Congress rejected the various arguments that had been raised against this technique in the hearings and during the debates. The most frequently voiced objection to in camera inspection was the familiar argument against de novo review mentioned above: that judges lack the knowledge and expertise to evaluate the effects of releasing allegedly sensitive documents. Congress responded to this concern by noting that the reviewing court would have the benefit of the agency's affidavits—possibly including additional in camera affidavits "in some cases of a particularly sensitive nature"—when making its in camera examination
Opponents of in camera examination also warned that court personnel and procedures presented a high risk of unauthorized leaks. In response to this fear the Senate Report suggested initiation of reasonable precautions, including "limiting access by court personnel to those obtaining appropriate security clearances" or appointing a "special master who may be required by the court to obtain such security clearance as had been previously required for access to the contested documents."
Congress likewise recognized and encouraged the development of flexible responses to eliminate a third objection to in camera examination: the potential burden on the courts. The Senate Report approved Vaughn's suggestion that special masters be appointed in cases involving numerous documents.
Finally, in camera examination has been criticized because it is conducted ex parte, without the benefit of an adversarial proceeding. The Senate Report recognized this deficiency and encouraged such procedures as requiring Vaughn indices and affidavits in addition to in camera examination and even allowing plaintiffs' counsel to have access to the contested documents in camera under special agreement "whenever possible."
Congress' resistance to these objections and its encouragement of flexible responses to overcome them reflect its recognition that the possibility of an in camera inspection is "in many situations" essential to de novo review and is an indispensable incentive to assure the accuracy of agency affidavits and testimony.
b. According "Substantial Weight to an Agency's Affidavit Concerning the Details of the Classified Status of the Disputed Report."
Although Congress refused to alter the statutory provisions calling for de novo review with the burden on the government and permissive in camera inspection, the Conference Committee did include language in its report designed to assuage the President's "unfounded"
A second passage, located in a portion of the Report referring to Exemption 1, expresses the Committee's recognition that agencies "responsible for national defense and foreign policy matters have unique insights into what adverse effects might occur as a result of public disclosure of a particular classified record" and the Committee's expectation "that Federal courts, in making de novo determinations in section 552(b)(1) cases under the Freedom of Information law, will accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record." S.Rep. No. 1200, supra, at 12. These words responded to the image of uninformed judges recklessly exposing sensitive information—an image cultivated by the opponents of de novo review and in camera examination.
Source Book, supra, at 449. This logical interpretation of the Conference Report passage is perfectly consistent with the actual words of the 1974 amendments.
It is important to recognize the limits, as well as the value, of this language in the Conference Report. Stretching the Conference Committee's recognition of the "substantial weight" deserved by demonstrated expertise and knowledge into a broad presumption favoring all agency affidavits in national security cases would contradict the clear provisions of the statute and would render meaningless Congress' obvious intent in passing these provisions over the President's specific objections. An affidavit explaining in detail the factors about particular material that have convinced the agency that the material should be classified should and will be quite influential with a reviewing court. On the other hand, an affidavit stating only in general or conclusory terms why the agency in its wisdom has determined that the criteria for nondisclosure are met should not and cannot be accorded "substantial weight" in a de novo proceeding. To substitute a presumption favoring conclusory agency affidavits for
Congress has already reversed overly restrictive judicial interpretations of the FOIA twice, see Part I-A supra, and congressional intent is by now sufficiently clear that a third legislative reversal should not be necessary. In FOIA cases involving exemptions based on national security, as in other FOIA cases, the government bears the burden of proving in a de novo proceeding before a court that any material not disclosed comes within one of the statutory exemptions. The government should be given the opportunity to establish by detailed affidavits or testimony that the requested material is clearly exempt from disclosure, and in conducting its de novo review in a national security case the court should give substantial weight to the agency's affidavits insofar as they reflect the agency's special knowledge and expertise. However, if the government fails to demonstrate by these means that the material is clearly exempt and that no segregable portions remain, or if the court has any suspicion of bad faith on the part of the agency,
D. Outline of the Review Process
My examination of the provisions and purposes of the FOIA and of the relevant judicial precedents suggests that a District Court reviewing an agency's claim that requested material falls within an exemption should generally proceed as follows:
1. Requirements of Index and Detailed Affidavits
As outlined in Vaughn, the court should require the agency to support its claim of exemption with (1) an index dividing the material into manageable segments and identifying what parts of it are withheld under which exemptions, and (2) detailed affidavits describing the matters withheld and giving any other evidence relevant to the particular exemptions claimed. To enhance the adversary process, the affidavits should be as detailed as possible without revealing the information claimed to be exempt.
2. Questions for the Court
Once the index and affidavits have been submitted, the court must undertake several different types of inquiry.
a. The Legal Issues.
The court must first determine the legal criteria for applying the exemption claimed by the agency. The words of the statute and the relevant precedents establish the kinds of matters that are exempt and any necessary procedural steps that are required for exemption. This aspect of the court's inquiry is fully open and adversarial.
b. The Factual Issues.
The court must then determine the facts of the particular case: the nature of the matters withheld and other relevant issues, such as the purposes for which the information was created,
c. Application of Law to Facts.
Finally, the court must decide whether the claimed exemption applies on the facts of the particular case. The statutory language and relevant precedents will often provide a clear answer, but, inevitably, some cases will present ambiguities that must be resolved. When such ambiguity is present courts should be guided by FOIA's emphasis on increasing disclosure and Congress' decision to place the burden on the party withholding information. If the government is unable to establish that the material withheld meets all the legal requirements necessary to qualify for one of the nine statutory exemptions, the material must be released.
With this framework in mind, I now turn to the particular circumstances of this case.
II. REVIEW IN THIS CASE
A. Adequacy of Index and Affidavits
An examination of the record in this case immediately reveals a problem: the CIA's affidavits are ambiguous about what exemptions apply to what portions of the withheld information. The affidavits specify that ten documents are involved, give a brief description of each document, and
This ambiguity as to which exemptions are claimed for which material is one of the very problems that led this court in Vaughn to require adequate indexing and detailed affidavits. The value of the Vaughn procedures is evident in this case. The ambiguity caused by the CIA's failure adequately to follow Vaughn caused the District Court to make an error that requires this court to reverse it. Apparently interpreting the ambiguous affidavit to assert that all the nondisclosed material could be withheld under Exemption 1 alone or under Exemption 3 alone, the District Court upheld the Agency's action on the alternative grounds of "exemption 1 alone, on the basis of exemption 3 alone, or on the basis of the two exemptions coupled together,"
B. Exemption 1
As the court's per curiam opinion briefly recognizes,
In this case the government submitted affidavits of Eloise Page, Chief of the Operations Staff of the Directorate of Operations of the CIA, who swore that she had "determined that some of these documents, or portions thereof, may not be released because * * * [t]hey are currently properly classified pursuant to the criteria and procedures set forth in Executive Order 11652 * * *." Affidavit of Eloise Page,
Id. at 33. On the basis of this statement and some general description of the types of information contained in the documents,
Appellants and amicus curiae raise several convincing objections to the District Court's conclusion. First, appellants point out that the affidavits do not indicate that all the material being withheld is exempt under Exemption 1. Ms. Page's affidavit is deliberately ambiguous, stating that the material is being withheld under Exemptions 1 "and or" 3 "and/or" 6
Second, appellants emphasize that summary judgment was granted before any discovery took place. Interrogatories and depositions are especially important in a case where one party has an effective monopoly on the relevant information. Discovery may be particularly useful to appellants in testing whether the procedural requirements of Exemption 1 have been met in this case.
Finally, amicus draws attention to the conclusory nature of the affidavit, which often merely parrots the language of the statute or Executive order. According to amicus, the CIA has developed "standard form" affidavits to handle cases such as this one. The CIA replies that its standard language reflects the typical nature of FOIA cases, and claims that any more particular descriptions might reveal the very information the Agency seeks to protect. While this concern may explain an agency's failure to produce sufficiently detailed affidavits in a particular case, it does not relieve either the agency or the court of its statutory responsibilities. When an agency cannot get beyond generalities in its affidavits for fear of revealing too much, de novo review requires the court to employ additional techniques, such as in camera inspection and more detailed in camera affidavits.
Faced with the conclusory affidavits produced in this case, appellants requested in camera examination, but the District Court
C. Exemption 3
The per curiam also finds the District Court's approach to Exemption 3 unsatisfactory. Per curiam, 190 U.S.App.D.C. at ___, 587 F.2d at 1196. Following its amendment in 1976 to overrule the result in Robertson, Exemption 3 applies to matters that are "specifically exempted from disclosure by statute," but only if the exempting statute either leaves no room for agency discretion to determine whether the information is to be disclosed or establishes effective guidelines for agency discretion by specifying "particular criteria for withholding" or "particular types of matters to be withheld." 5 U.S.C. § 552(b)(3) (1976). The 1976 amendment thus removed the Robertson loophole by insuring that no agency could rely on an "exempting" statute unless the statute contained clear guidelines upon which a court could rely in reviewing the agency's refusal to disclose requested information.
Proper judicial review of an Exemption 3 claim involves several steps: (1) determining whether the alleged exempting statute qualifies under Exemption 3 as amended, see American Jewish Congress v. Kreps, 187 U.S.App.D.C. 413, 574 F.2d 624 (1978), (2) determining what matters the exempting statute covers—what substantive and procedural requirements must be met before it permits nondisclosure, and (3) determining the facts of the particular case and whether the specific information withheld qualifies for nondisclosure under the alleged exempting statute. As with review of other claimed exemptions, the courts must consider each of these questions de novo. See Brandon v. Eckard, 187 U.S.App.D.C. 28, 32-35, 569 F.2d 683, 687-690 (1977); S.Rep. No. 1200, supra, at 8-9.
The CIA's Exemption 3 claim in this case is based on the applicability of 50 U.S.C. §§ 403(d)(3) (directing the Director of the CIA to protect "intelligence sources and methods from unauthorized disclosure") & 403g (exempting the CIA from any law requiring "disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency") (1970). The District Court, following unanimous pre-1976 precedents from this circuit,
Since the District Court's review of the CIA's affidavits in this case was based on the pre-amendment language of Exemption 3, it understandably does not demonstrate the kind of "hard look" necessary to assure adherence to congressional purpose. The District Court's extreme deference to the Agency's interpretation of what constitutes an "intelligence source or method" is evident in such passages as the following:
Ray v. Bush, Civil Action No. 76-0903 (D.D.C. Jan. 25, 1977), at JA 66-67. This is hardly the de novo review mandated by Congress, with the government having the burden of proof.
The District Court denied appellants' motion for in camera inspection with the comment that "[w]ith respect to documents withheld under exemption 3, in camera inspection is seldom, if ever, necessary or appropriate." Id. at JA 68. The court apparently based this conclusion on language in cases under the pre-amendment version of Exemption 3 to the effect that in review of an Exemption 3 claim "the only question `to be determined in a district court's de novo inquiry is the factual existence of [a specific statute of the kind described in Exemption 3], regardless of how unwise, self-protective, or inadvertent the enactment might be.'"
This court today definitively rejects this position as inconsistent with the language and legislative history of the FOIA.
An effective de novo review—using in camera inspection of material claimed to reveal "intelligence sources and methods" when appropriate—will achieve the goal Congress intended in amending Exemption 3. Courts will be able to insure that agencies do not impermissibly expand by unreviewed interpretations the "particular types of matters" Congress has exempted from disclosure. Although precedents detailing what may be withheld to protect intelligence sources or methods may not be possible, courts will be able to declare in published opinions what is not an acceptable interpretation of "protecting intelligence sources and methods."
D. Exemptions 6 and 7(F)
The CIA's affidavit also relied on Exemptions 6 and 7(F) to withhold certain parts of the documents sought by appellants.
As mentioned above, the District Court failed to reach these claims because it misinterpreted the Agency's ambiguous affidavit. The court's per curiam opinion remands for a more specific affidavit and recognizes that once the Agency has specified which material is allegedly exempt under which exemptions the District Court may well have to consider Exemptions 6 and 7. Per curiam, 190 U.S.App.D.C. at ___, 587 F.2d at 1197.
In ruling on an Exemption 6 claim, a court must determine de novo (1) whether the material requested falls within the type of matter covered by the exemption, i. e., "personnel and medical files and similar files," and (2) whether disclosure would constitute a "clearly unwarranted invasion of personal privacy." Unless the documents in question are indeed "personnel and medical files and similar files," the latter inquiry becomes unnecessary. "Personnel" files, as the Supreme Court wrote in Department of the Air Force v. Rose, supra, ordinarily contain information such as "where [an individual] was born, the names of his parents, where he has lived from time to time,
Consideration of an Exemption 7(F) claim likewise requires a court to determine de novo (1) whether the material involved consists of "investigatory records compiled for law enforcement purposes"
Effective de novo review by the courts is essential to assure that government agencies comply with Congress' commitment to compel disclosure of information that is being "withheld only to cover up embarrassing mistakes or irregularities * * *."
The original opinion in Weissman stated that Congress had recognized the lack of judicial expertise by indicating "that the court was not to substitute its judgment for that of the agency." Weissman v. CIA, supra, slip op. at 10 (preamendment version). In fact, Congress expressly refused to approve such deference.
In Bell v. United States, 563 F.2d 484 (1st Cir. 1977), the First Circuit relied in part on a portion of a Senate Report, S.Rep. No. 93-854, 93d Cong., 2d Sess. 16 (1974), that describes a provision in the Senate Bill as reported from committee that was later deleted on the floor of the Senate because it was considered too deferential to the agencies. To the extent that any language in Bell is inconsistent with the approach outlined in this opinion, we must respectfully decline to depart from our understanding of the mandate of Congress.
The result in Bell may be justified on the particular circumstances of that case. It was a suit to release over 500,000 documents gathered by the Allied Intelligence Service during World War II under the ULTRA program. The Secretary of Defense had exempted these documents from the automatic declassification schedule pending completion of a specific program designed to review individually the classification of all the documents by 1980.
Id. at 17030 (Sen. Ervin):
Id. at 17028 (Sen. Chiles):
S.Rep. No. 93-854, 93d Cong., 2d Sess. 15-16 (1974) (emphasis added).
During the House debates that led to an override of President Ford's veto of the 1974 amendments, Representative William Moorhead, the cognizant Subcommittee Chairman, made the following observation on available court procedure under the bill.
Source Book, note 17 supra, at 405-06.
Exemption 1 covers matters that are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1) (1976). Exemption 3 covers matters that are "specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3) (1976). The CIA also claimed that one document relating to appellant Schaap was an interagency memorandum covered by Exemption 5, 5 U.S.C. § 552(b)(5) (1976).
The letter to appellant Schaap illustrates the lack of specificity in the Agency's response:
Letter from Young to Schaap, supra, at JA 18.
Letter from Blake to Schaap, supra, at JA 22
S.Rep. No. 813, 89th Cong., 1st Sess. 2-3 (1965).
5 U.S.C. § 552(a)(3) (1970).
Id. at 17030.
Source Book, supra note 28, at 449. See also id. at 437-438, 459-460 (remarks of Sen. Kennedy), 466-467 (remarks of Sen. Cranston), 404-406 (remarks of Rep. Moorhead), 413 (remarks of Rep. Reid).
Source Book, supra note 28, at 460. See also Zweibon v. Mitchell, 170 U.S.App.D.C. 1, 48-50, 516 F.2d 594, 641-643 (1975) (en banc), cert. denied, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976).
The Conference Report did register an "expectation" that agency affidavits would be given "substantial weight." This passage of the Conference Report is discussed in Part I-C-2-b infra.
Another recent case also underscores the vital role that the threat of in camera inspection can play, perhaps especially with respect to the CIA. In that case, Goland v. CIA (D.C.Cir. No. 76-1800, decided May 23, 1978), plaintiffs "requested documents from the [CIA] relating to the legislative history of the Agency's organic statutes, slip op. at 2." Not convinced of the thoroughness with which the Agency had searched for responsive documents, and questioning the Agency's refusal to make available concededly responsive materials, plaintiffs brought suit under the FOIA. The District Court granted summary judgment in favor of the CIA; the opinion of this court affirming the District Court issued on May 23, 1978. One week later, on May 30, 1978, the CIA for the first time disclosed to plaintiffs' counsel and to this court the existence of various other documents that had been determined by the Agency six months earlier to be potentially relevant to the Goland case. These documents totaled 321, and were supplied to plaintiffs in June 1978. The CIA thus withheld from the plaintiffs and from the judicial process until after the opinion of the appellate court had issued the existence of over 300 documents of at least potential relevance to the Goland case. By so doing the CIA has again amply demonstrated the need for incentives such as in camera inspection to ensure compliance with the requirements of the FOIA. Similarly, in Marks v. CIA (D.C.Cir. No. 77-1225, decided this day). (slip op. at 1 n. 4). (Wright, C. J., concurring and dissenting), the Agency, subsequent to the District Court's opinion and to that court's refusal to conduct an in camera inspection of disputed materials, although prior to this court's judgment, released information that previously had been withheld.
Even in a case in which a specific finding of the Agency's good faith had been made, in camera inspection resulted in disclosure of additional information, thus emphasizing the difficulties that inhere in permitting an agency to be the final judge of its own cause. See Halperin v. CIA, 446 F.Supp. 661, 666-667 (D.D.C.1978).
Document Number Statement * * * * * * 2 This document is a three-page memorandum the subject of which is "Rennie Davis and Friends." It is essentially the debriefing report of a sensitive intelligence source. The majority of the information concerns individuals other than the plaintiffs. This document has been denied in its entirety, primarily to protect intelligence sources and methods since the release of any meaningful portion would disclose the identity of the source, and further, to protect cryptonyms, names of CIA personnel and CIA organizational data. Thus exemptions (b)(1), (b)(3) and (b)(6) apply. Supplemental Affidavit of Eloise Page, supra note 8, at JA 62-63.
Id. at JA. The Agency released most of Document 1, deleting only "the location of CIA overseas installations, cryptonyms, a pseudonym and CIA organizational data" on the basis of Exemptions 1 and 3. Id. at JA 62.
Supplemental Affidavit of Eloise Page, supra note 8, at JA 63-64.
For a discussion of why the CIA, in order to avail itself of Exemption 7, must have acquired the information sought in a lawful national security investigation, see Marks v. CIA, supra note 51, slip. op. at 5-16 (Wright, C.J., concurring and dissenting).