statutory mandate. Our decision here may sharply stimulate what must be, in the final analysis, the simplest and most effective solution-for agencies voluntarily to disclose as much information as possible and to create internal procedures that will assure that disclosable information can be easily separated from that which is exempt. A sincere policy of maximum disclosure would truncate many of the disputes that are considered by this court. And if the remaining burden is mostly thrust on the Government, administrative ingenuity will be devoted to lightening the load." For the reasons given, the case is remanded for further proceedings consistent with this opinion. So ordered. [Exhibit 70] ST. LOUIS POST DISPATCH V. FBI (Civ. No. 75-1025 (D.D.C. June 22, 1977) UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Civil Action No. 75-1025 ST. LOUIS POST-DISPATCH, ET AL., PLAINTIFFS V. FEDERAL BUREAU OF MEMORANDUM OPINION This is an action arising under the Freedom of Information Act (hereinafter FOIA), 5 U.S.C. § 552 (Supp. V 1975). Plaintiffs, St. Louis Post-Dispatch, a daily newspaper, and Richard B. Dudman, the paper's Washington Bureau Chief, seek to compel disclosure of certain documents described as "any investigatory files" which defendants have retained in the past ten years pertaining to plaintiff Dudman personally or to the Washington Bureau of the St. Louis Post-Dispatch.1 In particular, Mr. Dudman requested permission to view "whatever investigatory file led to the issuance of a subpoena on 13 August 1971 by the United States District Court for the District of Massachusetts for certain telephone records of my home telephone and the telephone of this bureau." Plaintiff Dudman's letter of February 19, 1975 to the Attorney General of the United States. Mr. Dudman has been associated with the St. Louis Post-Dispatch since 1949 and became Bureau Chief of the paper's Washington Bureau in 1969. He has written numerous articles on foreign policy issues; interviewed foreign officials, including those représenting Communist bloc countries; traveled abroad on assignment, including to China and Hanoi; arranged a trip to St. Louis for some Chinese journalists; and has given speeches about his experiences and observations in Indochina. In June 1971, the St. Louis Post-Dispatch came into possession of copies of the Pentagon Papers, some of which it printed. Thereafter, Mr. Dudman learned that a Boston grand jury investigating the Pentagon Papers leak had subpoenaed the long distance call records of both his home telephone and the Washington office of the Post-Dispatch. Neither he nor the newspaper had any notice of the subpoenas. Mr. Dudman has also learned that the Post-Dispatch was among the newspapers on the 1971 White House "enemies list." A substantial amount of material relating to these events has previously been released in whole or in part to plaintiffs. However, defendants are withholding 92 documents, or portions thereof, and claim they are exempt under 5 U.S.C. § 552 (b) 1, 2, 3, 5, 6, 7(C), 7(D) and 7(E). Defendants have divided these documents into three categories: A. the Dudman main file (22 documents); B. the Dudman "See Reference" file (58 documents which mention Mr. Dudman but 23 In this regard, administrative agencies should consider the example set by government investigative agencies following the passage of the Jencks Act. 18 U.S.C. § 3500 (1970). Confronted with a Congressional mandate to disclose information relevant to the testimony of witnesses in criminal trials, investigative agencies adopted procedures that assured proper disclosure. Investigative reports were prepared in a form in which the portions to which defense counsel should have access were easily removed from the file and made available to the defense counsel. Other parts of the file were kept segregated and relatively few problems were encountered. 1 Defendants indicate they were unable to locate any documents relating to the Washington Bureau of the St. Louis Post-Dispatch. Consequently, they broadened their search to include the St. Louis-Post Dispatch generally. are contained in files of other subjects); and C. the St. Louis Post-Dispatch (12 documents). In addition, defendants have provided the Court with documentby-document summaries of the factual descriptions of each document as those facts relate to the exemptions claimed and which have been presented in several affidavits and depositions, allegedly in conformance with the requirements of a detailed justification, itemization and indexing. Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir. 1973). Of the aforementioned 92 documents, plaintiffs have withdrawn their request for 22 of them, and with regard to two additional documents,* defendants have agreed to disclose those portions which plaintiffs seek. This matter is currently before the Court, as to the remaining 68 documents, on defendants' motion for summary judgment; plaintiffs' opposition thereto, cross-motion for summary judgment, and motion for in camera inspection; and supplemental memoranda of both parties. Defendants contend that there are no genuine issues as to any material fact and that they are therefore entitled to summary judgment as a matter of law. Plaintiffs, in both their opposition to defendants' motion and their cross-motion for summary judgment, allege that defendants have failed to carry their burden of proof that the documents being withheld fall within the claimed exemptions and that there are no segregable portions which can be released. Plaintiffs concur in defendants' statement of material facts as to which there is no genuine issue for purposes of their cross-motion but simultaneously in their opposition claim that there are genuine issues of material fact which can only be resolved through in camera inspection. The Court need not address this dispute in order to make a determination as to plaintiffs' request for in camera inspection. In camera inspection has clearly been recognized as appropriate in order to "resolve fundamental issues in contested cases," and to aid the Court in fulfilling its "congressionally imposed obligation to make a de novo determination of the propriety of a refusal to provide information in response to an FOIA request." Phillippi v. CIA, 546 F.2d 1009 (D.C.Cir. 1976). See, Department of the Air Force v. Rose, 425 U.S. 352 (1976). Additionally, the defect inherent in in camera review; namely, that it "is necessarily conducted without benefit of criticism and illumination by a party with the actual interest in forcing disclosure," is remedied here by the public justification, itemization and indexing of the documents which will aid the Court in focusing "on the issues identified and clarified by the adversary process.” Phillippi, supra citing Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). The Court certainly is not of the opinion that in camera inspection is required in every FOIA case. "This is clearly not what Congress intended, nor what this Court has found to be necessary." Weissman v. CIA, No. 76-1566 (D.C. Cir. Jan. 6, 1977, as amended, April 4, 1977). Nonetheless, it is necessary to determine the need for in camera inspection on a case by case basis. Plaintiffs have made a credible challenge to some of the defendants' claimed exemptions, and fairness dictates that the Court in this case determine de novo the applicability thereof, by means of in camera inspection of a few representative documents bearing in mind, of course, that the agency's affidavits will be accorded substantial weight 2 The three categories of documents appear as appendices A, B and C. respectively, to defendants' statement of material facts as to which there is no genuine issue. A given document will therefore be referred to by its appendix letter and the number assigned to the document within the appendix. 3 Plaintiffs have withdrawn their request for documents A-20, B-28. B-35, B-37. B-38, B-39, B-41, B-43, B-44, B-45, B-46, B-48, B-49, B-50, B-58, C-1, C-6, C-7, C-8, C-9. C-10 and C-11. 4 Documents C-2 and C-12. The other issues plaintiffs focus on in their cross-motion for summary judgment concern documents C-2 and C-12, and the applicability of Exemption (b) (7) (D) to documents A-6, A-11. A-14, A-15, A-16, A-18. A-21, B-2, B-3. B-4, B-5, B-6, B-7, B-8, B-9, B-10, B-11, B-12, B-13, B-22, B-23, B-24, B-25, B-26. These issues are now moot since defendants have released those portions of documents C-2 and C-12 which plaintiffs seek and have withdrawn their claims of Exemption (b) (7) (D) to the above documents except for document A-21). Defendants retain their claim that these documents should be withheld under Exemption (b) (1). Exemption (b) (7) (D) involves "investigatory records compiled for law enforcement purposes" to the extent they would "disclose the identify of a confidential source and . . . confidential information furnished only by the confidential source". Exemption (b) (1) relates to matters which are "(1) (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 qualified pursuant to such Executive Order". 6 Excepted from this are the five (5) CIA documents, B-51-55, discussed infra. where national security exemptions are claimed. 93d Cong., 2d Sess., Senate Report No. 93-1200, at 12 (The Conference Report). Accordingly, the Court will inspect in camera the following documents: A-2, A-3, A-4, A-5, A-9, A-12, A-15, A-21, A-22, B-1, B-5, B-25, B-30, B-47 and C-4. The defendants shall submit these documents to the Court no later than five (5) days following the filing of this memorandum and accompanying order. With respect to the five CIA documents for which defendants claim Exemptions (b) (1), (3) and (6) o, the Court is of the opinion that further justification, itemization and indexing are required. Vaughn v. Rosen, supra. For example, each claimed exemption should be cross-referenced to the applicable deleted portion of each document. Where the justification refers to "the names of other individuals in a context in which their privacy would be affected", the agency should be able to provide more detailed information. Plaintiffs also seek disclosure of file numbers. The Court is of the opinion that Exemption (b)(2) which exempts matters "related solely to the internal personnel rules and practices of an agency" is properly invoked since the numbering system is used internally by the agency for information retrieval. The Court will reserve final judgment with respect to the pending motions until it has had the opportunity to conduct in camera inspection of the documents requested and review the additional justification, itemization and indexing of the CIA documents. Dated: June 22, 1977. ?Documents B-51 (part), B-52 (part), B-53, B-54 and B-55. JUNE L. GREEN, $ See note 5, supra, for the text of Exemption (b) (1). Exemption (b) (3) relates to matters "specifically exempted from disclosure by statute". Exemption (b) (6) involves" files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." ARTICLES [Exhibit 71] THE FREEDOM OF INFORMATION ACT AND NATIONAL SECURITY SECRECY : How It's WORKING AFTER TWO YEARS (From First Principles, National Security and Civil Liberties, December 1976) (By Christine M. Marwick) It is at all times necessary, and more particularly so during the pro- Thomas Paine Although we are regularly told that our republican form of government is based on the informed consent of the governed, it was not until the passing of the Freedom of Information Act in 1966 that the public had, for the first time, a legal right to some of the records that federal agencies had on hand. And it was not until November, 1974 that Congress passed-over a presidential veto-amendments to the FOIA which gave the public an affirmative, if also limited, right to information dealing with the national security. Information may now be withheld only if it is properly classified according to the executive's own standards, and judges have the power to decide anew whether information had in fact been properly classified. It is now two years since Congress established this right of access, and we are now in a position to make some judgments about how the Act is doing as a wedge into what had at one time been the executive branch's exclusive preserve. This article narrows its focus to two areas of the FOIA in operation: It is a progress report first on the successes of the FOIA in releasing information from the government, and second, on how the courts have been dealing with the conflicting claims in the super-secret area known as "national security interests." People who are interested in a more general overview of the Act should read the November, 1975 issue of First Principles. FOIA-EXPANDING THE PUBLIC'S ACCESS There are admittedly many problems with how the FOIA is working outthere are numerous signs of non-compliance, of foot-dragging with the statutory time limits, and of agencies abusing the discretion that Congress gave them on whether or not to waive fees. And some agencies produce things in a more spritely fashion once a lawsuit is filed, meaning that people who are not in a position to sue don't have the full advantages of the provisions of the FOIA. But there is no question that it has greatly increased the flow of information to the public. You might say that one measure of its effectiveness is in the way that executive branch agencies are complaining about the "burden" of the act, that they are so busy with FOIA requests that it prevents them from spending their time on "their real tasks." (They overlook, of course, that Congress decides what their real functions should be, and that answering FOIA requests has become one of those assigned functions. At the same time the complaints are an indication that the bureaucrats are now taking FOIA requests seriously, something which the 1966 version of the act-with its open-ended time limits, its lack of ready remedies in court, its prohibitive fees for search, review, and copying, and its broad exemptions-did not force them to do. But even with a conspicuous lack of enthusiasm for the public's right to information, a great deal of information is, for the first time, coming out of the execu 21-656-78- 42 tive branch. Some of it is trivial, but some of it is incendiary, and some of it is the sort of thing that lawsuits for damages and congressional investigations are made of. Two lawsuits on the docket of the Project on NS&CL provide examples of this. One is the case of Nasser Afshar, a naturalized American citizen who publishes a bi-lingual newspaper in the U.S., the Iran Free Press. Under the FOIA Afshar received a copy of a telegram from Richard Helms, former Director of Central Intelligence and ambassador to Iran, stating that the Shah wanted the Iran Free Press closed down, and that the U.S. government was, in spirit at least, willing to see what it could do: In fact, in last two years embassy had several times raised with Department question whether Iran Free Press could be closed down. Matter had been carefully studied but lawyers had concluded that under U.S. laws there was regretably no basis for such action. The second suit is that of William Albertson. In an FOIA request dealing with FBI operations against the Communist Party, there was one place where the censor's pen evidently slipped, and documents were released which named Albertson as the victim of an FBI "snitch jacket" which convinced his colleagues that he was an FBI informer. He was drummed out of the party, disgraced, and spent the rest of his life trying to prove that he had been innocent. The Project has a growing library of important documents that have been obtained under the FOIA: some have been the fruit of court actions, but most have not. Some are of interest primarily to scholars, but most feed directly into current debates-intelligence agency abuses, foreign policy decision making, and the secret directives which govern the intelligence agencies. Many documents contain deletions, but what is released is often important in itself, and sometimes provides a trail to other, related documents and additional requests. Briefly, we list here examples of the kinds of information the Project has on file: Internal reports about the ongoing need to revamp the intelligence bureaucracy, such as the "Blue Ribbon Defense Panel Report to the President and the Secretary of Defense (July 1, 1970)," which produced a series of reports stating that military intelligence collected more information than it could ever use; and "A Review of the Intelligence Community" with a familiar conclusion that the intelligence bureaucracy needs to be reorganized. "Studies in Intelligence," a classified internal CIA publication, which includes book reviews and articles. It provides a view of the world from within Langley, and confirms things such as the reliability of Philip Agee's CIA Diary. The secret law which governs the intelligence agencies. For example, the secret testimony before Congress when the CIA was being set up; the Delimitation Agreement of 1948 in which the CIA and FBI each stake off their own turf; National Security Council Memorandum 10/2, June 18, 1948, which gave the CIA its secret charter "to plan and conduct covert operations," and which established the "plausible denial" for undertaking actions that can't be admitted to publicly; the National Security Council Intelligence Directives (NSCIDs) from 1947 to 1972, which include a decision (in NSCID 7, 1948) for the CIA to get into "domestic exploitation" even though the CIA spokesmen assured Congress that the CIA would not operate domestically; and a memoranda from the CIA's General Counsel that, contrary to what was stated publicly, the National Security Act did not give CIA authority to carry out subversion and sabotage. And there is a growing list of documents dealing with questionable intelligence agency operations. In order to make the need for external controls seem unnecessary, the agencies are all, to greater or lesser degrees, trying to give the impression of internal housecleaning. This means that they are sometimes willing to come forward with documents on these operations, such as: synopses of Hoover's legendary blackmail files on public figures in the U.S.; CIA assassination plots against Trujillo, Castro, leaders in South Vietnam, and leaders in the Belgian Congo: the files which Colby referred to before the Senate Appropriations Committee in a report dealing with domestic operations, such as their report "Restless Youth" (which found that there was no foreign connection to domestic political upheavals): the Colby Report to President Ford that was the response to Seymour Hersh's revelation in December, 1974 that the CIA had carried out a massive domestic surveillance program: the Huston Plan: the ongoing search for the missing foreign link to domestic political upheaval: a memo from the CIA Inspector General to the DCI warning him about "Potential Flap Activities," i.e., what he needed to keep the lid on; the CIA's file on Lee Harvey Oswald's involvement with Cuba; and the list goes on. |