Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.
KAREN LeCRAFT HENDERSON, Circuit Judge:
In August 1982, the Department of State (Department) published in The Department of State Bulletin a five-page article entitled "Armenian Terrorism: A Profile" (Article). The Article included a "Note," which stated:
This position contradicted longstanding United States policy and was eventually retracted in the May 1983 Bulletin.
In an effort to determine the origin of the Article and the Note, Van Z. Krikorian made a Freedom of Information Act (FOIA)
The parties filed cross-claims for summary judgment. Krikorian also requested in camera review of the withheld documents. The district court granted the Department's summary judgment motion, holding that the Department correctly withheld the ten documents because they fell within three FOIA exemptions: seven of them under exemption 1, one under exemption 3 and two under exemption 5. Moreover, although the court recognized "legitimate deficiencies" in the Department's search, it did not believe they were so severe as to constitute bad faith justifying in camera review. Mem. Op. at 8.
On appeal, we address three issues. First, do the ten withheld documents fall within one of the three FOIA exemptions? Second, if they do, should portions nonetheless be disclosed because they are either segregable or officially acknowledged? Third, did the Department conduct an adequate search for the requested materials? We affirm the district court's conclusion that each of the documents contains information exempt from disclosure under the FOIA. We remand, however, for the court to make specific findings whether portions of the withheld documents are segregable and whether any portions have been officially acknowledged. Finally, we remand for further proceedings to determine whether the Department conducted an adequate search for the requested material.
II. THE EXEMPTIONS
Under the FOIA, "the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B). The Department submitted affidavits from Ralph E. Lindstrom, Director of the Department's Office of Mandatory Review in the Classification and Declassification Center,
A. Exemption 1
Of the ten documents withheld in full or in part, the Department asserts that exemption 1 covers seven of them.
The Department claims that the seven documents fall under exemption 1 because
As another example, the Department withheld document 87, which was classified pursuant to section 1.3(a)(5) of Executive Order 12,356 because it relates to "foreign relations or foreign activities of the United States."
The district court found the Department's summaries of the seven documents "adequately specific" to satisfy its burden of proof. Mem. Op. at 7; see Halperin, 629 F.2d at 148 (affidavits need to be "reasonably specific"). The court concluded that, were the Department required to be more specific, it "would be forced to breach its promises of confidentiality." Mem. Op. at 7. Having also reviewed the descriptions of the other documents included in Lindstrom's affidavits (relating to documents 79, 93, 94, 103 and 104), we agree with the district court that the seven documents contain confidential information that is exempt from disclosure under exemption 1.
B. Exemption 3
The Department invokes exemption 3 to justify withholding document 11. Exemption 3 permits agencies to withhold documents if they are "specifically exempted from disclosure by statute," provided the 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). The Department asserts that document 11 is not disclosable under the National Security Act, 50 U.S.C. §§ 401 et seq., which makes the Director of the Central Intelligence Agency "responsible for protecting intelligence sources and methods from unauthorized disclosure." 50 U.S.C. § 403(d)(3). It is well settled that section 403(d)(3) falls within exemption 3. Gardels v. CIA, 689 F.2d 1100, 1103 (D.C.Cir.1982); Halperin, 629 F.2d at 147.
Under section 403(d)(3), a document is exempt if the Agency "demonstrates that an answer to the query `can reasonably be expected to lead to unauthorized disclosure of intelligence sources and methods.'" Gardels, 689 F.2d at 1103 (quoting Halperin, 629 F.2d at 147). In reviewing an exemption 3 claim, we do not closely scrutinize the contents of a withheld document; instead, we determine only whether there is a relevant statute and whether the document falls within that statute. Goland v. CIA, 607 F.2d 339, 350 (D.C.Cir.
Document 11 appears to be an earlier, thirty-page version of the Article. The Department states that portions
C. Exemption 5
Exemption 5 permits an agency to withhold "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). The purpose of exemption 5 is to protect the "quality of agency decisions." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S.Ct. 1504, 1516, 44 L.Ed.2d 29 (1975). The exemption protects pre-decisional, not post-decisional, documents because only the former can have an effect on the decisionmaking process. Id. at 151, 95 S.Ct. at 1516.
Documents 97 and 102 fall within exemption 5 because they are pre-decisional, deliberative documents that in part discuss how the Department should respond to the reaction of some members of the public to the Article and the Note. Document 97 includes two draft letters proposing two options for replies to public inquiries about the Article and the Note. Lindstrom Aff. II at 20. Neither option was ultimately used by the Department but the letters reflect advisory opinions that are important to the deliberative process. See Russell v. Department of Air Force, 682 F.2d 1045, 1048-49 (D.C.Cir.1982) (withholding documents to prevent public from "misconstruing" officer's views as agency views); Fisher v. United States Dep't of Justice, 772 F.Supp. 7, 10-11 (D.D.C.1991) (withholding documents "to prevent public confusion that might be caused by disclosure of reasons and rationales that were not ultimately the grounds for the agency's action"), aff'd, 968 F.2d 92 (D.C.Cir.1992). Document 102 is an informal, undated note containing comments made by one Department officer to another about a third officer's memorandum on the Armenian genocide. Lindstrom Aff. II at 21. The document reflects part of the deliberative process used to address the genocide issue. Accordingly, the district court correctly held both documents exempt from disclosure.
III. NON-EXEMPT DOCUMENTS
Although the ten documents fall within the three exemptions, portions of the documents may not be exempt. "It has long been a rule in this Circuit that non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions." Mead Data Cent., Inc. v. United States Dep't of Air Force, 566 F.2d 242, 260 (D.C.Cir.1977). Indeed, the FOIA dictates that "[a]ny reasonably segregable portion of a record shall be provided ... after deletion of the portions which are exempt under this subsection." 5 U.S.C. § 552(b). We have made clear that "[t]he `segregability' requirement applies to all documents and all exemptions in the FOIA." Center for Auto Safety v. EPA, 731 F.2d 16, 21 (D.C.Cir.1984).
Recently, we described the type of detail an agency must provide in its Vaughn index
As we did in Schiller, we remand here because the district court did not make specific findings of segregability regarding each of the withheld documents. The district court itself noted that the plaintiff "refers to a few instances in which the agency might have been more exacting in its segregation of factual assertions from confidential thought processes." Mem. Op. at 8-9. For example, Document 103 purports to be the author's views "on the legal, historical, and policy aspects of genocide as it applies to Armenians." Lindstrom Aff. II at 22. This description is quite general and may well include segregable material. Likewise, the Department's affidavit describing document 94 broadly states that "[p]ortions of the four-page memorandum contain information provided by a foreign government," and "[t]he four-page memorandum is primarily an analysis and discussion of foreign policy considerations and options." Lindstrom Aff. II at 15-16 (emphasis added). The use of such qualifying language implies that other portions of the documents may be segregable.
Notwithstanding the remand, we recognize that the Department may be unable to describe in more specific terms the separate portions of the withheld documents. Unlike Schiller, where the NLRB was attempting to protect litigation strategies, the Department contends that it is protecting national security material regarding terrorism and foreign relations. The dangers of disclosure may be much greater. Nevertheless, we must insist that the affidavits provide a relatively detailed description. Goldberg v. United States Dep't of State, 818 F.2d 71, 78 (D.C.Cir.1987) (requiring affidavits to provide a "relatively detailed analysis" of withheld information), cert. denied, 485 U.S. 904, 108 S.Ct. 1075, 99 L.Ed.2d 234 (1988). We therefore leave it to the district court to determine on remand whether more detailed affidavits are appropriate or whether an alternative such as in camera review would better strike the balance between protecting sensitive foreign relations information and disclosing non-exempt information as required by the FOIA.
B. Department's Official Acknowledgement
Krikorian also questions whether the Department has "officially acknowledged" any documents so that disclosure may be compelled even though the document falls within an FOIA exemption. For information to be "officially acknowledged," it (1) "must be as specific as the
IV. ADEQUACY OF THE SEARCH
Finally, Krikorian challenges the adequacy of the Department's search — the core issue in this appeal. In reviewing the adequacy of a search, we have stated that
Weisberg v. United States Dep't of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983) (emphasis in original) (citations omitted). If there is substantial doubt in the record as to the adequacy of the search, summary judgment cannot be granted to the agency. Truitt v. Department of State, 897 F.2d 540, 542 (D.C.Cir.1990).
The district court listed the locations the Department searched to satisfy Krikorian's request, Mem. Op. at 3, but it did not expressly evaluate the adequacy of the search. Instead, it focused on the adequacy of the affidavits to rebut Krikorian's argument that the search was conducted in bad faith. Id. at 7-8. Notwithstanding our conclusion that Krikorian failed to demonstrate bad faith, the district court's inquiry should not have ended there. A finding of no bad faith does not necessarily equate to a finding that the search was adequate. Krikorian's FOIA request asked for all documents regarding the origin of the Article and the Note. At no point did the district court expressly conclude that the search was adequate or that it satisfied the reasonableness standard. On the contrary, it noted that the plaintiff "does point out legitimate deficiencies in defendant's processing of plaintiff's FOIA request." Id. at 8.
Krikorian's allegations of shortcomings in the Department's search make the absence of a finding as to the adequacy of the search troubling. First, as the district court noted, the Department apparently did not know how many documents it had recovered. Id. Second, Krikorian found Department documents relevant to his request, including the unclassified December 1981 version of the Article similar to document 11, that the Department had evidently failed to locate. Third, and perhaps most significant, the Department conceded that it did not search any of the eleven Regional Security offices that the Article's author expressly thanked in the Article for responding to questionnaires he had generated during his research. The district court discounted these matters as "relatively minor imperfections in the agency's response" because they did not rise to the level of bad faith. Id. at 9.
Accordingly, we remand this case to the district court to consider whether the Department's search adequately responded to Krikorian's FOIA request. Although we reach no conclusion whether the eleven Regional Security offices should be searched, nevertheless, if the district court concludes that the Department's search to date is
To sum up, we affirm the district court's holding that the ten documents either in whole or in part fit into recognized FOIA exemptions. We remand, however, so that the district court can make findings whether the Department should disclose any segregable portions of the withheld documents or any documents that have been officially acknowledged. In addition, on remand the district court is to address the adequacy of the Department's search.
It is so ordered.