Phillippi v. Central Intelligence Agency 178 U.S. App. D.C. 243, 546 F.2d 1009

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

Dissenting opinion filed by Circuit Judge MacKINNON.

J. SKELLY WRIGHT, Circuit Judge:

This is an action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1970), as amended (Supp. V 1975), in which plaintiff-appellant seeks to compel the Central Intelligence Agency to disclose certain records alleged to be in its possession concerning its relationship with the Hughes Glomar Explorer.

In March 1975 several news organizations published stories purporting to describe a secret operation conducted by the United *245States. The central figure in these stories was the Hughes Glomar Explorer, a large vessel publicly listed as a research ship owned and operated by the Summa Corporation. According to the stories, the ship’s actual owner and operator was the Government of the United States.

Following publication of these stories, other stories described the alleged efforts of the CIA to convince the news media not to make public what they had learned about the Glomar Explorer. The latter stories interested appellant, a journalist, and she filed a FOIA request for all Agency records relating to the reported contacts with the media.1 That request was denied on two grounds. First, the Agency claimed that “any records that might exist which reveal any CIA connection with or interest in the activities of the Glomar Explorer; and, indeed, any data that might reveal the existence of any such records * * * ” would be classified and therefore exempt from disclosure. App. 8; see 5 U.S.C. § 552(b)(1).2 Second, the Agency stated that

the fact of the existence or non-existence of the records you request would relate to information pertaining to intelligence sources and methods which the Director of Central Intelligence has the responsibility to protect from unauthorized disclosure in accordance with section 102(d)(3) of the National Security Act of 1947 [50 U.S.C. § 403(d)(3) (1970)]. * * *3

App. 9. Accordingly, the Agency asserted that the information was covered by FOIA's exemption for information “specifically exempted from disclosure by statute.” 5 U.S.C. § 552(b)(3).4 Plaintiff’s adminis*246trative appeal was rejected by the Agency on the ground that existence or nonexistence of the requested records was itself a classified fact exempt from disclosure under Sections (b)(1) and (3) of FOIA.5 The basis for this action was the Agency’s determination “that, in the interest of national security, involvement by the U.S. Government in the activities which are the subject matter of your request can neither be confirmed nor denied.” App. 11.

Appellant filed her complaint in the District Court two and a half months later. She then moved to require the Agency to provide a detailed justification for each document claimed to be exempt from disclosure. See 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). The Government responded with a motion to dismiss or for summary judgment and a motion for leave to submit all material related to the case to the court in camera. The first motion was supported by two sealed affidavits, one classified secret and the other top secret. The second motion was accompanied by a public affidavit in which the Deputy Under Secretary for Management of the Department of State affirmed “that the information relevant to the United States Government case has been classified * * * on the ground that public disclosure would damage the national security, including the foreign relations of the United States.” App. 26. The District Court refused to examine all of the material in camera but did consider the two sealed affidavits. On December 1st the court granted the Agency’s motion for summary judgment on the ground that

[ i]t appears to the Court that the provisions of 50 U.S.C.A. §§ 403(d)(3) and 403g6 are applicable to this situation. Therefore, any materials which the defendants may have that fit the description of materials requested by the plaintiff are exempt from disclosure under the provision of the third exemption of the Freedom of Information Act. 5 U.S.C. § 552(b)(3). * * *

App. 2. In the same order the court denied appellant’s motions to have her counsel participate in any in camera examination and to require the Agency to provide a Vaughn index.

Thus we are dealing with a case in which the Agency has refused to confirm or deny the existence of materials requested under the FOIA, and its refusal has been upheld by the District Court. In effect, the situation is as if appellant had requested and been refused permission to see a document which says either “Yes, we have records related to contacts with the media concerning the Glomar Explorer” or “No, we do not have any such records.” On appeal appellant does not assert that the Government may never claim that national security considerations require it to refuse to disclose whether or not requested documents exist. Reply br. at 9. Rather, her principal argument, and the only question we decide, is that the Agency should have been required to support its position on the basis of the public record.

It is clear that the FOIA contemplates that the courts will resolve funda*247mental issues in contested cases on the basis of in camera examinations of the relevant documents. See Department of the Air Force v. Rose, 425 U.S. 352, 378, 96 S.Ct. 1592, 1607, 48 L.Ed.2d 11 (1976); 5 U.S.C. § 552(a)(4)(B), as amended (Supp. V 1975). Appellant maintains that this authority does not extend to in camera examination of affidavits, the procedure used below. In the peculiar context of this case we must reject this contention. When the Agency’s position is that it can neither confirm nor deny the existence of the requested records, there are no relevant documents for the court to examine other than the affidavits which explain the Agency’s refusal. Therefore, to fulfill its congressionally imposed obligation to make a de novo determination of the propriety of a refusal to provide information in response to a FOIA request the District Court may have to examine classified affidavits in camera and without participation by plaintiff’s counsel.

Before adopting such a procedure, however, the District Court should attempt to create as complete a public record as is possible. In camera examination has the defect that it “is necessarily conducted without benefit of criticism and illumination by a party with the actual interest in forcing disclosure.” Vaughn v. Rosen, supra, 157 U.S.App.D.C. at 345, 484 F.2d at 825. In the ordinary case we have attempted to remedy this defect by requiring a detailed public justification for any claimed right to withhold a document. That justification must be accompanied by an index which correlates the asserted justifications with the contents of the withheld document. The detailed justification and index can then be subjected to criticism by the party seeking the document. If in camera examination of the document is still necessary, the court will at least have the benefit of being able to focus on the issues identified and clarified by the adversary process. See id., 157 U.S.App.D.C. at 346-348, 484 F.2d at 826-828. Congress has specifically approved these procedures. S.Rep. No. 93-854, 93d Cong., 2d Sess. 14-15 (1974).

Adapting these procedures to the present case would require the Agency to provide a public affidavit explaining in as much detail as is possible the basis for its claim that it can be required neither to confirm nor to deny the existence of the requested records.7 The Agency’s arguments should then be subject to testing by appellant, who should be allowed to seek appropriate discovery when necessary to clarify the Agency’s position or to identify the procedures by which that position was established. Only after the issues have been identified by this process should the District Court, if necessary, consider arguments or information which the Agency is unable to make public.

By supplemental memorandum appellees have now adopted in this court the rationale set forth in an affidavit submitted by Brent Scowcroft, Assistant to the President for National Security Affairs, as the basis for their continuing refusal to confirm or deny the existence of any of the records requested by appellant Phillippi. Scowcroft’s affidavit was submitted in the case of Military Audit Project v. Bush, 418 F.Supp. 876 (D.D.C.1976), in which the plaintiff sought copies of the contracts for construction and operation of the Glomar Explorer. The Scowcroft affidavit, which was preceded in that case by a less informative affidavit from the Government, asserted that the requested documents could not be released, nor their existence confirmed or denied, because “[ojfficial acknowledgment of the involvement of specific United States Government agencies would disclose the nature and purpose of the Program and could, in my judgment, severely damage the foreign relations and the national defense of *248the United States.”8 After the filing of the Scowcroft affidavit in the District Court, interrogatories propounded by the plaintiffs there were answered by Mr. Scowcroft.

Of course, the rationale that Mr. Scow-croft set forth and which appellees here seek to adopt differs significantly from the argument on which the Agency initially relied.9 Nevertheless, the Government suggests that the Scowcroft affidavit, which allegedly contains all the information that can possibly be made available.10 merely elaborates on the “basic proposition” the appellees have urged all along.11 Appellees’ supplemental memorandum at 4. For this reason, we are told, remand would be futile.

We reject this conclusion for two reasons. First, we are not convinced that appellant, through appropriate discovery12 and memo*249randa, will be unable to convince the District Court to reject the Agency’s position.13 Second, and more important, the course the Government urges us to take is inappropriate. Even if the Agency prevails on remand on the basis of the arguments made to the Military Audit Project court, we cannot sustain summary judgment for the appellees here on the basis of documents filed in a separate case concerned with different, although related, issues. Plaintiffs are entitled to an opportunity to conduct their own litigation.

The judgment of the District Court is reversed and the case is remanded for further proceedings in conformity with this opinion.14

*250 So ordered.

MacKINNON, Circuit Judge

(dissenting):

The foregoing opinion would treat this demand on the Central Intelligence Agency (CIA) for “all records” of a certain character “relating to the activities of the Glomar Explorer. . . . ” (App. 7) as though it were a normal request under the Freedom of Information Act (FOIA). But it is not. By statute the CIA is specifically exempt from “any other law” which would require it to disclose any of the “functions . of [its] personnel.” This is not a discretionary statute1 and the exemption is not from disclosure after some involved procedure, but is an exemption “from . . . the provisions of any other law” which would so require.

Appellant seeks to use the FOIA as the base for her demand but the disposition of her request is controlled by the specific provisions of the CIA statute. The Act establishing and controlling its operations provides that the CIA

shall be exempted from . . . the provisions of any other law which requires the publication or disclosure of the . functions ... of personnel employed by the Agency.2

The Freedom of Information Act recognizes this special statute when it provides that its general requirements that certain agencies make available to the public certain information:

does not apply to matters that are—

******

(3) specifically exempted from disclosure by statute.3

5 U.S.C. § 552(b)(1)(A).

Thus, when the foregoing opinion attempts to apply FOIA procedures to appellant’s request by its assertion: “It is clear the FOIA contemplates that the courts will resolve fundamental issues in contested cases on the basis of in camera examinations of the relevant documents,” p. 246 of 178 U.S.App.D.C., p. 1012 of 546 F.2d supra, it fails to recognize the “exempt” status of the Agency, created, not only by the FOIA which recognizes the special status of the CIA, but created primarily by its own separate special statute.

Since the CIA is thus specifically exempted from the FOIA by the Act creating it, the CIA need only assert this fact when it refuses “the publication or disclosure of the functions . . . .” etc.4 requested. Once the court determines that fact nothing further is necessary. As Justice Stewart said in his concurring opinion in FAA Administrator v. Robertson, 422 U.S. 255, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975),4 which involved a factual situation *251less favorable to the exemption than the CIA statute:

[T]he only question “to be determined in a district court’s de novo inquiry is the factual existence of such a statute, regardless of how unwise, self-protective, or inadvertent the enactment might be.” EPA v. Mink, supra, [410 U.S. 73] at 95 n, [93 S.Ct. 827, at 840, 35 L.Ed.2d 119.]

422 U.S. at 270, 95 S.Ct. 2140, 2149. Justice Marshall also concurred in the opinion by Justice Stewart.

The procedural aspects of the Freedom of Information Act thus need not be complied with by the CIA because when the Act provides that the Agency is “exempted from the . . . provisions of any other law . . .,” etc.,5 it means the entire law.

In this case, it is clear that complying with appellant’s request could result in the “publication and disclosure of the . functions ” of the Agency in a highly secret activity definitely related to national security. That is precisely the type of information the Act was designed to protect.6 The information here requested from the Agency was plainly not information that it was required to publish or disclose. On the facts here present the Agency was permitted to rest on the showing made on the factual existence of the statute and it was not required to indulge in any elaborate procedure to over-prove the obvious.

FAA Administrator v. Robertson, supra, held that the Federal Aviation Administration, by virtue of the subsection (3) exemption of the Freedom of Information Act, was not required to comply with the demand that it produce certain Systems Worthiness Analysis Program Reports made by the airlines to the FAA as part of its safety program. Its claim of exemption was based on 49 U.S.C. § 1504 (1970), which provides:

Any person may make written objection to the public disclosure of information contained in any . . . report . filed pursuant to the [FAA Act] . . . Whenever such objection is made, the Board or Administrator shall order such information withheld from public disclosure when, in their judgment, a disclosure of such information would adversely affect the interests of such person and is not required in the interest of the public.

Robertson held that this discretionary statute satisfied the terms of subsection (3) of the FOIA.

Following the Robertson decision, the 94th Congress amended subsection (3) to read as follows:

(3) 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 *252particular types of matters to be withheld.

Pub.L. 94-409, § 5(b), 90 Stat. 1247 (Sept. 13, 1976).

This amendment does not become effective until 180 days after the date of its enactment, so it is not controlling here; but it is important to note because it plainly indicates that, even after it does become effective, the CIA exemption will still continue. In fact, it will even be strengthened because exemption (3) will then specifically exempt from disclosure all matter in those instances where the

statute . . . requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue . . . ,7

(Emphasis added). The CIA statute is such a statute because it is not couched in discretionary terms, but specifically “leave[s] no discretion” that

the Agency shall be exempted from . the provisions of any other law which require the . . . disclosure of the . . . functions ... of personnel employed by the Agency.

50 U.S.C. § 403g (1970).

That the present request would violate this statute, both as presently interpreted and as it would be interpreted after the 1976 amendment, is too clear to require further discussion. The CIA statute was designed specially to prevent what my colleagues’ opinion would require — disclosing top secret information in order to protect it from disclosure. It is sufficient that the agency has pointed to the applicable statute.

I respectfully dissent.