Opinion for the Court filed by Circuit Judge WILKEY.
WILKEY, Circuit Judge:
Appellant Carlisle Tire and Rubber Company (Carlisle) seeks to compel disclosure under the Freedom of Information Act (FOIA),
To buttress its exemption claims, Customs submitted an affidavit sworn by its Assistant Commissioner for Regulations and Rulings explaining its reasons for refusing to disclose the requested information.
On appeal Carlisle now reiterates its challenges to Customs' claims of authorized nondisclosure under Exemptions 1, 4, and 5. For reasons outlined below we vacate, under United States v. Munsingwear, Inc.,
A. Exemption 5
The parties agree that eight of the documents in dispute have been released to appellants virtually in their entirety in the course of civil discovery in the Customs
B. Exemption 1
Under Exemption 1, an agency may withhold documents only if they apply to matters which 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...."
The four documents for which Customs claims Exemption 1 protection are responses by the ROK government to questionnaires issued to it by Customs in the course of the countervailing duty proceedings.
In our view, only the second of these two contentions deserves more than cursory discussion here. In Lesar v. United States Department of Justice
With regard to the first step, in Lesar and Baez we held that when a court conducts procedural and substantive review of a classification decision the relevant Executive Order is the one "in effect at the time the agency makes its ultimate classification determination."
Executive Order 12,065 provides generally for classification as "Confidential" of information "the unauthorized disclosure of which reasonably could be expected to cause identifiable damage to the national security."
We have held repeatedly in recent years that the agency may carry this burden
Customs has sought to bear its burden here primarily through submission of the three affidavits sworn by its Assistant Commissioner in charge of Regulations and Rulings.
With regard to the showing of reasonable likelihood of harm to national security from unauthorized disclosure, Customs begins by citing section 1-303 of the Executive Order, which expressly creates the presumption that "[u]nauthorized disclosure of foreign government information ... [will] cause at least identifiable damage to the national security,"
Judge Oberdorfer found that because the "documents in question were plainly submitted by the governments of Taiwan and the ROK in response to questionnaires directed to them by the Customs Service [and because the] foreign governments explicitly requested that the responses be accorded confidential treatment" Customs had caried its burden of showing that the documents constituted foreign government information properly classified as "confidential."
With respect to Carlisle's first contention, we agree that the fact that certain information has been received from a foreign government "in confidence" does not, by itself, compel automatic classification of the document. Section 1-302 makes clear that, even for foreign government documents, a classification decision requires an additional determination by the original classification authority that unauthorized disclosure reasonably could be expected to cause "at least identifiable damage" to the national security.
We cannot agree, however, with Carlisle's second contention — namely that Treasury Regulation § 2.5(c) effectively requires that the documents here should not have been classified "Confidential," because their disclosure could not have validly been presumed to damage the national security. While we cannot deny the contradiction between the plain language of the Executive Order and the language found in the Treasury regulation, neither can we accept appellant's
Furthermore, even if we were to treat the contrary Treasury regulation as evidence rebutting the presumption of identifiable damage to national security found in section 1-303 of the Executive Order, the bare existence of that regulation does not seem to us sufficient evidence to drive the presumption from this case. We need not find that the President intended that unauthorized disclosure of foreign government information should be irrebuttably presumed to damage the nation's security
We need not decide here when, if ever, a FOIA requester can overcome the presumption that disclosure of evidence provided to our government agencies by foreign sovereigns under express requests of confidentiality will damage our national security. Suffice it to say that Carlisle has not produced sufficient prima facie evidence of non damage here to overcome that presumption in this case. On appeal Carlisle has made only two general arguments in this regard: that Customs' failure to classify the information in these documents from the outset, "demonstrate[d] that the Agency did not, in fact, consider the information in the subject
In his memorandum and order, however, the district judge addressed these concerns in two ways. First, he distinguished the type of "classified" information which in fact has been deliberately disclosed to large numbers of individuals
To summarize, we agree that the affidavits provided by the agency "indicate a logical nexus between the information at issue and the claimed exemption," thus satisfying the test for Exemption 1 purposes which we have recently clarified in Lesar and Baez.
For the reasons developed above, we hold the district court judgment vacated in part and otherwise
Effective 2 January 1980 responsibility for administering the countervailing duty laws shifted to the Secretary of Commerce pursuant to Reorg. Plan No. 3 of 1979, § 5(a)(1)(C), 44 Fed.Reg. 69,273, 69,275 (1979) and Exec.Order No. 12,188, § 1-107(a), 45 Fed.Reg. 989-93 (1980).
Carlisle sent its letters of request on 1 August 1978, Appendix (App.) at 76-77 (Taiwan); id. at 78-80 (Korea). Customs acknowledged receipt of the FOIA request on 7 August 1978, App. at 81. Construing that acknowledgment as a request for extension of time, Carlisle filed an administrative appeal on 5 September 1978 of Customs' deemed denial of its FOIA request, alleging that no substantive reply to its request had been received within the statutory 20 working day period and requesting that the Commissioner of Customs review the record and order disclosure of the requested documents. See Letter from Eugene L. Stewart to Honorable Robert E. Chasen (5 September 1978), reprinted in App. at 82-83.
On 13 October 1978 Customs sent to Carlisle reports and intra-agency memoranda concerning the preliminary countervailing duty determination on bicycle tires and tubes from the Republic of China, excluding documents contained in the Public Reading File. The letter attached to those documents specified that "[t]he enclosed documents represent that portion of the record which is either not exempt from disclosure under the statute or exempt in part and reasonably segregable." Letter from Steven I. Pinter to Eugene L. Stewart (13 October 1978), reprinted in App. at 93-94.
Customs then filed two supplemental affidavits by Leonard Lehman, the first pursuant to the court order of 1 March, see Supplemental Affidavit of Leonard Lehman (14 March 1979), reprinted in App. at 95-175 [hereinafter Second Lehman Affidavit], and the second addressing the applicability of Exemption 1 to certain of the requested documents, see Supplemental Affidavit of Leonard Lehman (20 March 1979) [hereinafter Third Lehman Affidavit], reprinted in App. at 176-84.
On cross-motions for summary judgment, the court granted summary judgment for Customs in two of the actions and partial summary judgment for Customs in the third. Id. The district judge eschewed in camera review on the grounds that "[t]he supplementary affidavits filed in the consolidated actions, together with the documents submitted with deletions for 16 of the 21 items, have permitted the Court to obtain a detailed knowledge of the type of information contained in the withheld materials.... [Thus] in camera inspection would serve no purpose." Id. at 3, reprinted in App. at 7.
The court found, with respect to eight of the documents (Documents Nos. 2-9), classed as intra-agency memoranda by or to a number of the parties, all deleted material was properly withheld pursuant to Exemption b(5). Id. at 8-10, reprinted in App. at 12-14. With respect to four of the documents (Documents Nos. 10-13), responses by the ROK government to Customs' questionnaires, the court further held that they had been properly classified "Confidential" pursuant to the relevant Executive Order and thus nondisclosure of those documents in their entirety was authorized under Exemption 1. At the same time, the court granted summary judgment for Carlisle with respect to substantive excerpts from Documents Nos. 10-13 which had previously been published in the Federal Register. Id. at 11-17, reprinted in App. at 15-21. Finally, the court held that some portions of Documents Nos. 10-13 were also exempt from disclosure under Exemption 4. Id. at 17, reprinted in App. at 21.
Documents Nos. 4, 6, and 7 have been disclosed without deletions; Documents Nos. 2, 5, and 9 have been released in their entirety but for the last line of each giving the recommendation of the author. Document No. 3 has been wholly released except for a list of financial figures on one of its seven pages and the recommendation line; Document No. 8 has been wholly released except for some two sentences containing recommendations. Brief for Appellees at 9-10. Appellant acknowledges that it has now received these documents "virtually intact," Brief for Appellant at 16; and furthermore, that the deletions in Documents 2, 3, 5, 8 and 9 are "insignificant," Brief for the Appellant at 15, 74.
See also Section I.G. 12 of the Implementing Directive of the Interagency Classification Review Committee, 43 Fed.Reg. 46,280, 46,281 (1978) (employing the same language in implementing Executive Order No. 12,065).