Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
Separate opinion concurring and dissenting in part filed by Circuit Judge BORK.
TABLE OF CONTENTS
Page Introduction .................................... 1097 I. BACKGROUND ............................... 1097 II. THE USE OF A TIME-OF-REQUEST CUT-OFF DATE ............................ 1100 A. Applicable Law ....................... 1100 B. The Legality of the Agency's Rule Adopting A Time-of-Request Cut-off Date ................................. 1102 C. The Reasonableness of the Agency's Procedure in This Instance ........... 1103 III. THE REFERRAL PROCEDURE .................. 1105 A. "Agency Records" Covered by the Act ................................. 1105 B. Treatment of Documents Obtained From Other Agencies .................. 1109 IV. INVOCATION OF THE "INTELLIGENCE SOURCE" EXEMPTION ....................... 1112 CONCLUSION ...................................... 1114
HARRY T. EDWARDS, Circuit Judge:
We are asked in this case to decide several questions concerning the scope of the duties imposed on government agencies by the Freedom of Information Act ("FOIA" or "the Act").
The outcome of this case turns substantially upon nuances in its facts. Accordingly,
Appellant McGehee is a free-lance journalist and a relative of three victims of the gruesome demise of the "People's Temple" in Jonestown, Guyana. Many of the circumstances surrounding the Jonestown Tragedy are well known, indeed notorious. In November, 1978, Congressman Leo J. Ryan and a portion of his staff traveled to Guyana to investigate allegations of mistreatment of some of his constituents in the Jonestown religious community. On November 18, as they were about to board a plane to leave, Ryan, three representatives of the media, and one apparent defector from the community were shot and killed. Within hours, almost all of the more than 900 members of the Jonestown congregation, including its founder, Jim Jones, either committed suicide or were murdered.
Despite the extensive attention given the Jonestown Tragedy, the character of the People's Temple religious community, the events leading up to the catastrophe, and the manner in which so many people died remain somewhat mysterious. Proceeding on the assumption that the CIA possesses recorded information that sheds light on these matters, McGehee, on December 6, 1978, filed the FOIA request that gives rise to this controversy. McGehee initially asked for documents relating to several aspects of the development and fate of Jim Jones' congregation.
The treatment accorded McGehee's request during the following month is not entirely clear from the record. It appears that the agency's Information and Privacy Division ("IPD"), the office that coordinates responses to requests for information, determined that two other divisions — the Directorate of Operations ("DO") and the Office of Security ("OS") — were the offices most likely to possess documents of the sort McGehee was seeking. Accordingly, those two divisions were "tasked" — i.e., asked to search for and identify relevant records. Each division apparently was instructed to confine its attention to documents received on or before December 22, 1978, the day McGehee's request was finalized. Soon thereafter OS informed IPD that it had found no such materials. An initial search by DO, on the other hand, revealed the existence of responsive documents, but DO at this time appears not to have informed IPD of its findings. Nor does DO seem to have made any effort at this point to review
This initial flurry of activity had subsided by mid-January, 1979. Between that time and December, 1980, the agency did virtually nothing about McGehee's request.
On November 21, 1980, McGehee filed suit in the District Court seeking to compel the CIA to respond to his pleas.
The last set of records is one of the hubs of this controversy. It is undisputed that, of the 28 "other agency" documents, 27 had originated with the State Department and one with the FBI. In accordance with its standard procedure, the CIA declined to undertake any kind of substantive review of the "other agency" records and instead sent them to the agencies that first compiled them to enable those agencies to determine whether any material was exempt from disclosure.
In the summer of 1981, McGehee accidentally learned, from a letter written by a representative of the CIA to a third party, that the agency had been treating the time of his original request as a cut-off date for its FOIA search. Moreover, comments made in that letter raised the possibility that the agency had limited its searches to files denominated "People's Temple" and had not sought information under any closely related headings — e.g., the Reverend James Jones or Jonestown. See App. 191.
On January 19, 1982, despite these revelations, the District Court issued final judgment in the case. The court denied McGehee's motion for an in camera inspection of the withheld and edited documents to test the basis for the agency's refusal to release them, granted the CIA's motion to dismiss from the lawsuit the documents it had obtained from the State Department and FBI, and granted the CIA's motion for summary judgment as to the remainder of the suit.
II. THE USE OF A TIME-OF-REQUEST CUT-OFF DATE
McGehee's first challenge concerns the CIA's decision to limit its search to records in its possession on the date when his request was finalized. He points out that the agency did not disclose any documents to him until compelled to do so by an order of the District Court almost two and one-half years after his original request. Under these circumstances, he argues, the agency failed to discharge its statutory obligation when it retrieved and released only documents that originated with and were in the possession of the CIA during the first month following the events to which his request principally related.
A. Applicable Law
We begin by reviewing the legal principles that govern McGehee's claim. First, it is well established that the adequacy of an agency's response to a FOIA request is measured by a standard of reasonableness. As this court recently noted:
Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 837 (D.C.Cir. 1979) (footnotes omitted) (emphasis added).
Second, we hold that the agency bears the burden of establishing that any limitations on the search it undertakes in a particular case comport with its obligation to conduct a reasonably thorough investigation. It seems to us clear that the burden of persuasion on this matter is properly imposed on the agency. The Act explicitly assigns to the agency the burden of persuasion with regard to the closely related issue of the legitimacy of the agency's invocation of a statutory exemption to justify withholding of material.
Third, the fact that the subject of this appeal is the grant of appellee's motion for summary judgment means that the agency must satisfy a significant legal standard in order to carry its burden. The standard has been stated as follows:
Church of Scientology, 610 F.2d at 836 (footnotes omitted).
B. The Legality of the Agency's Rule Adopting A Time-of-Request Cut-off Date
In light of the foregoing principles, we must now determine whether the District Court fairly could have concluded that the CIA's decision to limit its search to documents in its possession as of the date of McGehee's finalized request was consistent with its statutory obligations. The agency would have us decide this question from a generic standpoint; it argues that language in the FOIA and authoritative case law interpreting the statute establish that the use of a time-of-request cut-off date is always reasonable. However, we are convinced that none of the arguments advanced by the agency to support this sweeping claim survives scrutiny.
The CIA first points to the statutory provision requiring that the materials sought by a FOIA request be "reasonably describe[d]."
C. The Reasonableness of the Agency's Procedure in This Instance
Having concluded that neither the terms of the statute nor the case law interpreting them supports a claim that the use of a time-of-request cut-off date is always proper, we are compelled to turn to the particular facts of the case before us to assess the reasonableness of the agency's conduct. McGehee directs our attention to circumstances that, on their face, cast considerable doubt on the merits of the agency's procedure. The CIA took almost two and one-half years to respond to McGehee's request. Yet, when it finally released documents, the CIA chose to limit itself to records that originated with and were possessed by the agency during the first 35 days following the Jonestown Tragedy. Were these facts all that appeared in the record, we would be very hard pressed to sustain the agency's actions.
The CIA attempts to dispel the skepticism to which the foregoing circumstances give rise by arguing that it would be exceedingly difficult to conduct its processing of FOIA requests on any other basis. In the affidavit of John Bacon submitted to the District Court, in its brief to this court, and in oral argument, the agency has consistently maintained that uniform use of a time-of-request cut-off date is essential to avoid an "administrative nightmare." To support this claim, the agency points to the benefits of "precis[ion]" (the value of having a single cut-off date that all agency divisions know in advance),
In the absence of more detailed substantiation, these claims strike us as either unpersuasive or irrelevant. Indeed, alternative procedures, without the flaws of the time-of-request cut-off policy and without any real potential for the administrative nightmares alleged by appellee, readily come to mind. The following procedure is an example:
SAMPLE PROCEDURE APPLYING A REASONABLE "CUT-OFF" DATE TO A FOIA SEARCH Soon after the CIA first receives a request, IPD "tasks" divisions of the agency it considers likely to have access to responsive documents. Those divisions determine whether they have any such materials
38and so inform IPD. IPD then notifies the requester that the agency possesses some relevant documents and will process his request as soon as it has completed processing all requests it received earlier. When the request nears the head of the "queue," IPD instructs each agency division that it thinks might possess relevant records to conduct, at that time, a thorough search for all responsive documents in its possession, to retrieve identified records forthwith, and to submit them to the central office for evaluation by persons able to determine whether any material is exempt. Substantive review follows promptly and all nonexempt material is released.
We do not offer the foregoing Sample as a directive to the agency, a procedure with which it is henceforth bound to comply. Nor do we mean to endorse a procedure fraught with excessive time delays.
It is possible that circumstances unknown to us or to the District Court do indeed render unfeasible any such alternative, more responsive procedure. If so, the agency's argument that its present practice is "reasonable" would be powerful. We therefore remand this portion of the case with instructions to afford the agency an opportunity to adduce additional relevant testimony.
III. THE REFERRAL PROCEDURE
McGehee's second allegation of error is that the District Court improperly granted the CIA's motion to dismiss from the lawsuit the records it had obtained from the State Department and FBI. As was true with regard to the issue just discussed, the general principles governing McGehee's claim are well known but their application to the specific question presented has never been resolved.
A. "Agency Records" Covered by the Act
The Supreme Court has recently clarified the conditions under which a federal court may compel an agency to release documents. In Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980), the Court held:
Id. at 150, 100 S.Ct. at 968.
The CIA argues vigorously that the District Court's decision in the instant case was proper under the third branch of this test. Records that are in the possession of the agency to which a FOIA request is submitted but that were originally compiled by another agency, the CIA insists, are not "agency records" within the meaning of the Act. So stated, the argument seems rather implausible, but this was indeed the theory on which the District Court rested its ruling.
In sum, the question whether a document in the possession of one agency that originated in another constitutes an "agency record" for the purposes of the FOIA is not governed by either the terms of the statute, the legislative history or precedent. To resolve the issue, we are thus compelled to look to the general principles that underlie the Act as a whole.
It has often been observed that the central purpose of the FOIA is to "open up the workings of government to public scrutiny."
This conclusion is buttressed by consideration of the probable practical effect of a different rule. If records obtained from other agencies could not be reached by a FOIA request, an agency seeking to shield documents from the public could transfer the documents for safekeeping to another government department. It could thereafter decline to afford requesters access to the materials on the ground that it lacked "custody" of or "control" over the records and had no duty to retrieve them.
B. Treatment of Documents Obtained From Other Agencies
Our conclusion that the documents the CIA obtained from the State Department and FBI constitute "agency records" does not settle the fate of those materials. Two branches of the test delineated by the Supreme Court remain to be satisfied. The District Court should have compelled disclosure of the documents only if they were "(1) `improperly'; (2) `withheld'" by the CIA. Kissinger v. Reporters Committee, 445 U.S. at 150, 100 S.Ct. at 968. Unfortunately, the recent vintage of the Court's three-pronged test means that there is very little case law directly concerned with the meaning of those crucial terms.
"Improper": We are persuaded by Justice Stevens' opinion in Kissinger that sensible explication of the term "improper" in this context requires incorporation of a standard of reasonableness.
A principle implicit in the foregoing definitions is that, when an agency receives a FOIA request for "agency records" in its possession, it must take responsibility for processing the request. It cannot simply refuse to act on the ground that the documents originated elsewhere.
There is insufficient evidence in the record to determine what result should be reached by applying these standards to the instant case. Neither the decision below nor the affidavits on which it was based make clear the nature of the referral procedure or exactly what advantages were gained by referring each of the documents obtained from the State Department and FBI to the originating body.
We recognize that the standards we adopt today are not "bright line" tests. The District Court may find it difficult, given the absence of other germane precedent, to apply our holdings to the instant case even when all the facts have been ascertained. To mitigate that uncertainty, and to provide some guidance to courts confronted with similar problems in future cases, we set forth below a model for a referral system. We do not suggest that agencies are bound to accept our plan; we describe it merely to indicate one set of practices that would comport with the general principles embodied in the Act:
SAMPLE PROCEDURE FOR PROCESSING DOCUMENTS ORIGINATING WITH OTHER AGENCIES An agency in possession of documents, responsive to a FOIA request, that it has received from another agency would forward them to the originating body (in lieu of processing them itself) if and only if they satisfied an "intent to control" test.
73Specifically, an intention on the part of the originating agency that it retain the authority to decide if and when materials are released to the public would have to be made evident by either (i) explicit indications to that effect on the face of each document or (ii) the circumstances surrounding the creation and transfer of the documents. 74To minimize the resultant delay, the referral would have to be prompt and public. In other words, as soon as the agency retrieved responsive documents, and possibly even before it undertook an examination of their contents to determine whether they were exempt from disclosure, it would identify those records that originated elsewhere and, if they passed the aforementioned "intent to control" test, would immediately (i) inform the requester of the situation, (ii) notify the originating agency and, (iii) if necessary, forward to the latter copies of the relevant documents. To minimize the burden on the requester, this notification and referral would be accorded the status of a FOIA request; the person seeking information would thereby be relieved of the duty to submit a separate demand to the originating agency.
If, in a given case, the "intent to control" test were satisfied but the agency to which the request was first submitted had not followed the procedures suggested above by the time litigation commenced, the district court would still have some options at its disposal that would enable it to ensure that the petitioner's request was processed expeditiously without sacrificing the benefits accruing from a substantive review by the originating agency. The court might, for example, allow the defendant agency to submit affidavits or present witnesses from the originating agency, explaining which documents are exempt and why. Alternatively, the court could require the originating agency to appear as a party to the suit pursuant to FED.R.CIV.P. 19(a). But these options would be makeshift arrangements; the preferable situation would be adherence to a set of review and referral guidelines of the sort described above.
IV. INVOCATION OF THE "INTELLIGENCE SOURCE" EXEMPTION
McGehee's final allegation of error
The crucial issue, as this matter appears before us, is whether the District Court was warranted in granting the CIA's motion for summary judgment solely on the basis of affidavits submitted by the agency. Here at last we have the benefit of a well-established body of precedent. A long line of cases, decided in this circuit and elsewhere, have prescribed the standards for reviewing claims of exemptions in this procedural context:
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981) (footnote omitted).
On the fourth and final requirement, however, the CIA stumbles. We find that the record contains significant evidence suggesting that the agency has not processed McGehee's request in good faith. Our conclusion is founded principally on the combination of two facts: First, it took almost two and one-half years before the CIA processed McGehee's reasonably straightforward request;
It remains to be decided what should be the proper remedy on remand. McGehee urges two solutions on us. First, he requests an instruction to the District Court to permit him to conduct discovery to ascertain the basis of the agency's claim that disclosure of the withheld material would reveal the identities of "intelligence sources." Second, he seeks a directive to the District Court to conduct an in camera examination of the documents in question to determine whether the invocations of exemptions were justified.
With regard to the first option, the CIA argues vigorously that an explanation for its actions any fuller than that already made would itself compromise national security.
We turn, therefore, to the second proposed remedy. In a recent case, we summarized
The judgment of the District Court is reversed. The case is remanded with instructions to afford the parties opportunity to present additional evidence relevant to the matters we have discussed. The District Court should then, on the basis of the standards we have outlined, evaluate the reasonableness of the agency's use of a time-of-request cut-off date and the legality of its procedure for processing the records obtained from the State Department and FBI. The District Court should also consider whether any remedy is due for the CIA's failure to notify appellant of the time-of-request cut-off policy. Finally, the court should undertake an in camera inspection of the withheld documents.
We wish to make clear the spirit in which further proceedings in this case should be conducted. This is a controversy impinging on national security. In such circumstances, the judgment of the CIA is to be accorded considerable respect and deference.
Reversed and remanded for further proceedings consistent with this opinion.
BORK, Circuit Judge, dissenting in part:
I concur in most of Judge Edwards' excellent opinion and dissent only from the majority's conclusion that the CIA's "bad faith" in dealing with appellant's request for documents necessitates an in camera inspection of documents withheld by the agency under the "intelligence source" exemptions
Under Allen v. CIA, 636 F.2d 1287 (D.C. Cir.1980), agency bad faith is relevant because it undermines the credibility of the agency's statements in its affidavits. I find nothing in this case which impeaches the credibility of the CIA's affidavits. There is no evidence relating to the affidavits themselves which suggests any credibility problem. There may, of course, be cases in which an agency's general performance evidences such a degree of untrustworthiness that a court would not feel justified in relying upon any of its statements without independent examination of the documents withheld, but I do not find this to be such a case. The district court found that there was no bad faith here, and I agree. Joint Appendix at 221. The CIA's performance here may be far from exemplary, but it appears attributable to bureaucratic inefficiency rather than to a desire to circumvent the law. Thus, I would conclude that all four parts of the Military Audit test were met. In camera inspection was not required and summary judgment was properly granted as to documents withheld under FOIA exemptions (1) and (3).
Appendix ("App.") 150.
Circumstances surrounding the processing of McGehee's request do indeed suggest that the agency has not acted in good faith. See text at notes 82-84 infra. Thus, we might conclude that the agency has not established that its search procedure was reasonable solely on the ground that the credibility of the affidavit it submitted in support of that proposition (App. 193-214) is undermined by evidence of bad faith. However, in order to offer some guidance to present and future litigants concerning the legitimacy of the use of cut-off dates, we prefer not to rest our decision on that narrow premise and proceed instead on the (counter-factual) assumption that the statements made in the agency's affidavits are worthy of the usual measure of credit.
The CIA makes much of some language by this court in Krohn v. Department of Justice, 628 F.2d 195, 198 (D.C.Cir.1980), interpreting this provision. Contrary to the agency's insinuations, Krohn merely proscribed requests that either were excessively vague or required the agency to engage in analysis. The opinion never addressed the question of the legitimate time frame of a FOIA request.
The only other arguably relevant statutory definition of "record" is equally unhelpful. See 44 U.S.C. § 3301 (1976) (expansive definition for purposes of the "disposal of records").
It is tempting to draw inferences from Congress' action in a related context. In 1975, it amended the Securities Exchange Act of 1934 to provide:
Securities Acts Amendments of 1975, Pub.L. No. 94-29, § 19, 89 Stat. 97, 158 (codified at 15 U.S.C. § 78x(a) (1976)). But, on reflection, it appears that this enactment is equally susceptible of two inconsistent interpretations. It might indicate that Congress assumed that "records" meant all documents "filed with" or "obtained by" an agency. Or it might reflect Congress' conviction that the public's interest in gaining access to materials held by the SEC was sufficiently great to necessitate an unusually encompassing definition, applicable solely to that agency.
Not every record that originates with Congress escapes the coverage of the Act; such a document is held not to constitute an "agency record" only if a two-pronged test is satisfied: both "the circumstances attending the document's creation and the conditions under which it was transferred to the agency" must affirmatively indicate that Congress wished to retain primary control of the material. Holy Spirit v. CIA, 636 F.2d at 841; see also Goland v. CIA, 607 F.2d at 347-48. The only evidence the CIA has advanced to indicate that any of the records it obtained from the State Department or the FBI could pass such a "control" test is the fact that some of the documents at issue are classified and, apparently, not declassifiable by the CIA. See note 71 infra. Because we conclude that all records that originate in agencies covered by the Act constitute "agency records," we express no opinion on the question whether such restrictions on declassification, without more, would be sufficient to satisfy the Goland/Holy Spirit test.
It has been held, however, that, to escape categorization as "agency records," court documents, like Congressional documents, must pass an "intent to control" test. See Carson v. U.S. Dep't of Justice, 631 F.2d 1008, 1010-15 (D.C.Cir.1980); Valenti v. Department of Justice, 503 F.Supp. at 233 (semble).
Id. at 157, 100 S.Ct. at 972. This approach differs significantly from the Goland/Holy Spirit test, see notes 50-51 supra, which stresses manifestations by the creator of an intent to retain control.
Because the majority of the Court concluded that the documents at issue in the case either did not constitute "agency records" or had not been "withheld," it did not have occasion to consider the meaning of the term "improperly."
As to the remaining six State Department records and the one FBI record, we have even less relevant information. The District Court's discussion of those materials is limited to the conclusory observation that, "the agency that generated the documents is in the best position to determine expeditiously and efficiently the propriety of disclosure ...." 533 F.Supp. at 868. A more particularized finding of advantage, in terms of the quality of the substantive review, is necessary to justify a referral.
In making the foregoing inference, we are assuming that the agencies would not abuse option (i) — i.e., that they would place an "intent to control" marking on a document forwarded to another agency only if they had good reason (aside from a desire to frustrate FOIA requesters) to wish to retain the right to decide whether the document should be released to the public. If, at some future date, it becomes evident that that assumption was naive, we may have to reconsider the procedures we propose today.
In their briefs, the parties engage in a heated dispute over the proper definition of an "intelligence source." Given the manner in which we dispose of appellant's challenge to the agency's invocations of exemptions, the precise meaning of that phrase is unimportant. To the extent that said definition becomes relevant on remand, we reaffirm our discussion of the matter in Holy Spirit v. CIA, 636 F.2d at 843-44.