10 Congress was well aware of this problem, and when it amended the FOIA to permit in camera inspection in exemption (b) (1) cases, it indicated that the court was not to substitute its judgment for that of the agency." If exemption is claimed on the basis of national security the District Court must, of course, be satisfied that proper procedures have been followed, that the claim is not pretextual or unreasonable, and that by its sufficient description the contested document logically falls into the category of the exemption indicated. It need not go further to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith. In every FOIA case, there exists the possibility that Government affidavits claiming exemptions will be untruthful. Likewise, in every FOIA case it is possible that some bits of non-exempt material may be found among exempt material, even after a thorough agency evaluation. If, as appellant argues, these possibilities are enough automatically to trigger an in camera investigation, one will be required in every FOIA case.' "This is clearly not what Congress intended, nor what this Court has found to be necessary. When Congress amended the FOIA in 1974 to provide that any reasonably segregable non-exempt portion of an agency record should be released, 5 U.S.C. § 552 (b) (Pub. L. 93-502 § 2(c)), this addition was meant to endorse judicial decisions holding that Congress did not intend to exempt an entire document "merely because it contained some confidential information." 12 But, neither the legislative history, nor court decisions, have indicated that it was appropriate for the District Courts to undertake a line-by-line analysis of agency records in each case. This Court has noted the difficulty of such a task, and held that such an investment of judicial energy was not justified, or even permissible. Vaughn v. Rosen, supra, at 825. "The burden has been placed specifically by statute on the Government." Ibid. It is only where the record is vague and the agency claims too sweeping or suggestive of bad faith that a District Court should conduct an in camera examination to look for segregable non-exempt matter. 13 The CIA dealt with the instant request on a conscientious manner. It disclosed much material, it released additional material as the result of an administrative appeal, and it came forward with newly discovered documents as located. Agency documents have been released to plaintiff on four-appellant separate occasions." The Agency submitted affidavits summarizing each document, or portion of a document withheld, and indicated the rationale for each claimed exemption. It filed an indexed description of all material withheld, and supported the withholding by explicit affidavits. No discovery was attempted; plaintiff simply contested the adequacy of the affidavits. There is no reason, on this record, to presume bad faith on the part of the CIA. In this instance, the CIA released some documents in their entirety and portions of 22 others. From the deletions in the partially released documents, and the Agency explanations for these deletions, the District Court could well determine that the Agency was not improperly withholding information. Such an examination of a full record can take the place of a partial, or sampling, in camera inspection. See Ash Grove Cement Co. v. FTC, 511 F.2d 815 (D.C. Cir. 1975). The District Court was correct in refusing to conduct an in camera inspection to check the veracity of Agency claims or to search for nonexempt material and no abuse of discretion has been shown. Where it is clear from the record that an agency has not exempted whole documents merely because they contain some exempt material," it is unnecessary and often unwise for a court to undertake such an examination. 10 "This standard of review does not allow the court to substitute its judgment for that of the agency-as under a de novo review-but neither does it require the court to defer to the discretion of the agency, even if it finds the determination not arbitrary or capricious. Only if the court finds the withholding to be without a reasonable basis under the applicable Executive order or statute may it order the documents released." S. Rep. No. 93-854, supra, at 16. It should be noted that this is no small matter. The number of FOIA complaints filed in the District of Columbia tripled this past year and totalled 183 cases. It should also be noted that 30 percent of the closed cases are appealed to this Court. (The national average rate of appeals for all cases is nine percent.) In camera inspection in each FOIA case would create a staggering burden both for the Court and the District Court. 12 Grumman Aircraft Engineering Corp. v. Renegotiation Bd., 475 F.2d 578, 580 (D.C. Cir. 1970), quoted in S. Rep. No. 93-854, 93d Cong. 2d Sess. 31 (1974). 13 On May 16, 1975, portions of two documents were released. On July 3, 1975, additional portions of those two documents were released, and portions of seven more documents that had been discovered after the initial Agency reply. On January 8, 1976, portions of nine additional documents and one entire document were released. On January 29, 1976. 15 more documents, or portions thereof, including some portions previously deleted, were released. 14 In some limited instances a stronger standard may apply. See, e.g., Cuneo v. Schlesinger, 484 F.2d 1086 (D.C. Cir. 1973), where the issue was whether "secret law" was being withheld. However, we do not deal with that issue here. IV. CONCLUSION As the above discussion indicates, the trial judge was well within his discretion in refusing to order an in camera examination. The Agency claims for exemptions under section (b) (1) and (b) (3) were properly sustained. However, exemptions under section (b) (7) are not available to the CIA except under special collateral circumstances.15 There are 29 documents where claims for exemption under various subsections of (b) (7) were made. While in most instances these claims were coupled with claims under (b) (3), it is still necessary to remand the case to the District Court to determine whether all or part of any of the 29 documents should be released. The Agency may well be able to show that the claim of exemption (b) (3) alone, or coupled with other exemptions, is sufficient to protect the document against disclosure even in the absence of (b) (7), but this cannot be ascertained on the basis of the papers brought here on the appeal. The judgment below is affirmed in all respects except as it relates to documents claimed to be exempt under section (b) (7), other than Nos. 12, 44 and 46, and the case in this respect alone is remanded to the District Court for further proceedings consistent with this opinion. [Exhibit 66a] WEISSMAN V. CIA SUPPLEMENTAL ORDER (Civ. No. 76-1566 (D.C. Cir. April 4, 1977) ORDER Upon consideration of the petitions for rehearing filed by the appellant and by the appellees, and of the brief filed by Senator Edmund S. Muskie, as amicus curiae on behalf of appellant's petition for rehearing, and the Court having this date filed and entered an order amending the Opinion for the Court dated January 6, 1977, it is Ordered by the Court that both petitions are denied. ORDER It is ORDERED by the Court, sua sponte, that the Opinion for the Court heretofore filed in this case on January 6, 1977 be, and it hereby is, amended by striking in its entirety the paragraph beginning on Page 10 which extends onto Page 11, including Footnote 10 to which it refers, and substituting in lieu thereof a new paragraph, including a new footnote, which shall be and read as follows: Additional considerations apply to in camera proceedings under exemption (b) (1) where classification of documents is involved. Few judges have the skill or experience to weigh the repercussions of disclosure of intelligence information. Congress was well aware of this problem when it amended the FOIA to permit in camera inspection in exemption (b) (1) cases.10 If exemption is claimed on the basis of national security the District Court must, of course, be satisfied that proper procedures have been followed, and that by its sufficient description the contested document logically falls into the category 15 For example, in the case of three documents Nos. 12, 44 and 46, an exemption under (b) (7) was claimed to protect the names of the FBI law enforcement officers. The exemption was properly claimed in this instance in conjunction with the claims for exemption of the same three documents under exemptions (b) (1) and (3). 10 Claims under (b) (1), like other claims of exemption are subject to de novo review in the District Court. See 5 U.S.C. § 552 (a) (4) (B). However, the legislative history of the 1974 amendments makes clear that, in evaluating (b) (1) claims under this standard, "substantial weight" is to be accorded to detailed agency affidavits, setting forth the basis for exemption: "[T]he conferees recognize that the Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse effects might occur as a result of public disclosure of a particular classified record. Accordingly, the conferees expect that the federal courts, in making de novo determinations in section 552(b) (1) cases under the Freedom of Information Act, will accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record." S. REP. 93-1200, 93d Cong., 2d Sess. 12 (1974). See also Senator Muskie's remarks during the floor debate preceding the Senate's vote to override President Ford's veto of the amendments. 120 CONG. REC. 36870 (1974) ("The judge would be required to give substantial weight to the classifying agency's opinion in determining the propriety of the classification.") of the exemption indicated. In deciding whether to conduct an in camera inspection it need not go further to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith. It is FURTHER ORDERED by the Court, sua sponte, that the word "and" in the eighth line on Page 12 of the Opinion for the Court is stricken and the word "or" is inserted in lieu thereof, so that as amended, the sentence of which that line is a part, shall be and read as follows: It is only where the record is vague or the agency claims too sweeping or suggestive of bad faith that a District Court should conduct an in camera examination to look for segregable non-exempt matter. [Exhibit 67] PHILLIPPI V. CIA (546 F.2d 1009 (D.C. Cir. 1976)) UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT HARRIET ANN PHILLIPPI, APPELLANT, V. CENTRAL INTELLIGENCE AGENCY No. 76-1004. Argued April 19, 1976. Decided Nov. 16, 1976. As Amended Nov. 24, 1976. A journalist brought an action against the Central Intelligence Agency seeking production, under the Freedom of Information Act, of all records relating to alleged efforts of the CIA to convince the news media not to make public what they had learned about secret operations conducted by the United States by use of a vessel publicly listed as a research ship owned and operated by a private corporation. The United States District Court for the District of Columbia, Oliver Gasch, held that the materials requested were exempt from production by provisions of the National Security Act of 1947 and denied the journalist's motions to have her counsel participate in any in camera examination of affidavits filed by the Agency, and the journalist appealed. The Court of Appeals, J. Skelly Wright, Circuit Judge, held, inter alia, that the Agency should be required to provide a public affidavit explaining in as much detail as possible the basis for its claim that it could be required neither to confirm nor to deny the existence of the requested records. Reversed and remanded for further proceedings. MacKinnon, Circuit Judge, dissented and filed opinion. Freedom of Information Act contemplates that courts will resolve fundamental issues in contested cases on basis of in camera examinations of relevant documents. 5 U.S.C.A. § 552 (a) (4) (B). Where, in action by journalist under Freedom of Information Act to obtain records of Central Intelligence Agency, Agency adopted position that it could be required neither to confirm nor to deny the existence of requested records, Agency would be required to provide public affidavits explaining in as much detail as possible the basis for its claim; journalist would then be allowed to seek appropriate discovery when necessary to clarify Agency's position or to identify procedures by which that position was established, and only after issues had been identified by such process would district court, if necessary, consider arguments or information which Agency was unable to make public. 5 U.S.C.A. §§552, 552 (a) (4) (B), (b) (1, 3); National Security Act of 1947 § 102 (d) 3, 50 U.S.C.A. § 403 (d) (3); Central Intelligence Agency Act of 1949, § 7, 50 U.S.C.A. § 403g; Executive Order No. 11652, 50 U.S.C.A. § 401 note. If Central Intelligence Agency could demonstrate, in action for production of documents under Freedom of Information Act, that release of requested information could reasonably be expected to lead to unauthorized disclosure of intelligence sources and methods, it was entitled to invoke statutory protection accorded by section of National Security Act of 1947 providing that director of Central Intelligence Agency shall be responsible for protecting intelligence sources and methods from unauthorized disclosure. 5 U.S.C.A. § 552 (a) (4) (B), (b) (3); National Security Act of 1947, § 102 (d) (3), 50 U.S.C.A. § 403 (d) (3); Central Intelligence Agency Act of 1949, § 7, 50 U.S.C.A. § 403g. Section of Central Intelligence Agency Act of 1949 providing that information may be withheld about functions of personnel employed by CIA does not accord CIA complete exemption from Freedom of Information Act. 5 U.S.C.A. § 552 (a) (4) (B), (b)(3); National Security Act of 1947, § 102(d) (3), 50 U.S.C.A. § 403 (d) (3); Central Intelligence Agency Act of 1949, § 7, 50 U.S.C.A. § 403g; Executive Order No. 11652, 50 U.S.C.A. § 401 note. Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 75–1265). Mark H. Lynch, Washington, D.C., with whom Larry P. Ellsworth and Alan B. Morrison, Washington, D.C., were on the brief, for appellant. David M. Cohen, Atty., Dept. of Justice, Washington, D.C., with whom Rex E. Lee, Asst. Atty. Gen., Earl J. Silbert, U.S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellees. Before Wright and MacKinnon, Circuit Judges, and Weigel, District Judge. 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 States. 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. 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).a 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 1 Plaintiff requested "all records relating to the Director's or any other agency personnel's attempts to persuade any media personnel not to broadcast, write, publish, or in any other way make public the events relating to the activities of the Glomar Explorer, including, but not limited to, files, documents. letters, memorando, travel logs. telephone logs or records of calls made, records of personal visits, or any other records of any kind of communications." App. 7. 25 U.S C. § 552 (b) (1) exempts from disclosure matters that 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 classification system is established by Executive Order 11652, 3 C.F.R. at 339 (1974). unauthorized disclosure in accordance with section 102(d) (3) of the National Security Act of 1947 [50 U.S.C. § 403(d) (3) (1970)]. ** ** 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).ʻ Plaintiff's administrative 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." 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 403g 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). * * 6 350 U.S.C. § 403 (d) (3) provides in relevant part, "[t]hat the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure.' It is important to note that Congress has been peculiarly sensitive to expansive judicial interpretations of the exemptions to the FOIA. Through various amendments it has sought to insure that these exemptions not provide means by which government agencies could eviscerate the policy of the Act. In fact, in response to two different Supreme Court decisions amendments have recently been enacted which narrow the scope of each of the exemptions on which the Agency here seeks to rely. After the decision in Environmental Protection Agency v. Mink, 410 U.S. 73 93 S.Ct. 827, 35 L.Ed.2d 119 (1973). in which the Supreme Court construed the $552(b) (1) (i.e., "Executive order") exemption broadly and denied the plaintiffs access to the information they sought, Congress moved promptly to overrule the decision and limit the exemption. See 5 U.S.C. § 552(a) (4) (B) (Supp. V 1975): 5 U.S.C. § 552 (b) (1) (Supp. V 1975): S.Rep No. 854, 93d Cong., 2d Sess. 13-15 (1974). Even more recently, in the Government in the Sunshine Act, Congress limited to § 552(b) (3) exemption to the FOIA as follows: (b) This section does not apply to matters that are (3) specifically exempted from disclosure by statute (other than section 552h 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 particular types of matters to be withheld[.] Pub. L. 94-409 § 5(b), 94th Cong. (Sept. 13, 1976). Specifically, in the discussion of the amendment in the final Conference Report it is stated, "The conferees intend this language to overrule the decision of the Supreme Court in Administrator FAA v. Robertson, 422 U.S. 255. 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975)"-a decision on which the dissent relies and in which 552(b) (3) was construed broadly with respect to an exemption statute not involved in this case. See S. Rep. No. 94-1178, 94th Cong., 2d Sess. 25 (1976): H.R. Rep. No. 94-1441. 94th Cong., 2d Sess. 25 (1976). This latest amendment shows plainly that Congress is determined that the exemptions to the FOIA should be interpreted narrowly. The Agency based its claim to an exemption under § 552 (b) (3) entirely on 50 U.S.C. $ 403 (d) (3) supra note 3. 50 U.S.C. 403g provides, in relevant part, that "[1]n the interests of the security of the foreign intelligence activities of the United States and in order further to implement the proviso of section 403 (d) (3) of this title that the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure, the Agency shall be exempted from the provisions of any other law which require the publication or disclosure of the organization, functions, names, official titles. salaries, or numbers of personnel employed by the Agency * * *." So far as appears from the public documents in this case, the Agency never asserted the relevance of this provision. |