agencies lose very little by refusing to disclose documents. At most they will be put to a court test stacked in their favor, the burden of which can be easily shifted to another by simply averring that the information falls under one of several unfortunately imprecise exemptions. Conversely, there is little to be gained by making the disclosure. Indeed, from a bureaucratic standpoint, a general policy of revelation could cause positive harm, since it could bring to light information detrimental to the agency and set a precedent for future demands for disclosure.

Secondly, since the burden of determining the justifiability of a government claim of exemption currently falls on the court system there is an innate impetus that encourages agencies automatically to claim the broadest possible grounds for exemption for the greatest amount of information. Let the court decide! And the tactical ploy is, to the extent that the number of facts in dispute are increased. the efficiency of the court system involved in that dispute resolution will be decreased. If the morass of material is so great that court review becomes impossible, there is a possibility that an agency could simply point to selected, clearly exempt portions, ignore disclosable sections, and persuade the court that the entire mass is exempt. Thus, as a tactical matter, it is conceivable that an agency could gain an advantage by claiming overbroad exemptions.

The simple fact is that existing customary procedures foster inefficiency and create a situation in which the Government need only carry its burden of proof against a party that is effectively helpless and a court system that is never designed to act in an adversary capacity. It is vital that some process be formulated that will (1) assure that a party's right to information is not submerged beneath governmental obfuscation and mischaracterization, and (2) permit the court system effectively and efficiently to evaluate the factual nature of disputed information. To possible ways of achieving this goal we now turn our attention.

III. Procedures for Testing the Classifications of Claims to Exemptions

A. Detailed Justification

[3] The problem of assuring that allegations of exempt status are adequately justified is the most obvious and the most easily remedied flaw in current procedures. It may be corrected by assuring government agencies that courts will simply no longer accept conclusory and generalized allegations of exemptions." such as the trial court was treated to in this case, but will require a relatively detailed analysis in manageable segments. An analysis sufficiently detailed would not have to contain factual descriptions that if made public would compromise the secret nature of the information, but could ordinarily be composed without excessive reference to the actual language of the document."

B. Specificity, Separation, and Indexing

The need for adequate specificity is closely related to assuring a proper justification by the governmental agency. In a large document it is vital that the agency specify in detail which portions of the document are disclosable and which are allegedly exempt. This could be achieved by formulating a system of

20 This requirement is clearly mandated by the Supreme Court's language in Mink: An agency should be given the opportunity, by means of detailed affidavits or oral testimony, to establish to the satisfaction of the District Court that the documents sought fall clearly beyond the range of material [subject to disclosure].

E. P. A. v. Mink, 410 U.S. 73, 93, 93 S.Ct. 827, 839, 35 L.Ed.2d 119 (1973) (emphasis added).

21 In E. P. A. v. Mink. ibid., the Supreme Court made the following relevant comment: [T]he Agency may demonstrate, by surrounding circumstances, that particular documents are purely advisory and contain no separable, factual information. A representative document of those sought may be selected for in camera inspection. And, of course, the agency may itself disclose the factual portions of the contested documents and attempt to show, again by circumstances, that the excised portions constitute the bare bones of protected matter.

In employing these techniques approved by the Court the agency should be careful that it does not discuss only the representative example while ignoring the bulk of the documents which may be disclosable. Such a course of action is not permissible under the Court's language in Mink and would lead to the undesirable result of sweeping disclosable material under a blanket allegation of exemption.

itemizing and indexing that would correlate statements made in the Government's refusal justification with the actual portions of the documents.”

Such an indexing system would subdivide the document under consideration into manageable parts cross-referenced to the relevant portion of the Government's justification. Opposing counsel should consult with a view toward eliminating from consideration those portions that are not controverted and narrowing the scope of the court's inquiry. After the issues are focused, the District Judge may examine and rule on each element of the itemized list. When appealed, such an itemized ruling should be much more easily reviewed than would be the case if the government agency were permitted to make a generalized argument in favor of exemption.

The need for an itemized explanation by the Government is dramatically illustrated by this case. The Government claims that the documents, as a whole, are exempt under three distinct exemptions. From the record, we do not and cannot known whether a particular portion is, for example, allegedly exempt because it constitutes an unwarranted invasion of a person's privacy or because it is related solely to the internal rules and practices of an agency. While it is not impossible, it seems highly unlikely that a particular element of the information sought would be exempt under both exemptions. Even if isolated portions of the document are exempt under more than one exemption, it is preposterous to contend that all of the information is equally exempt under all of the alleged exemptions. It seems probable that some portions may fit under one exemption, while other segments fall under another, while still other segments are not exempt at all and should be disclosed. The itemization and indexing that we herein require should reflect this.

C. Adequate Adversary Testing

Given more adequate or rather less conclusory, justification in the Government's legal claims, and more specificity by separating and indexing the assertedly exempt documents themselves, a more adequate adversary testing will be produced. Respect for the enormous document-generating capacity of government agencies compels us to recognize that the raw material of an FOIA lawsuit may still be extremely burdensome to a trial court. In such cases, it is within the discretion of a trial court to designate a special master to examine documents and evaluate an agency's contention of exemption. This special master would not act as an advocate; he would, however, assist the adversary process by assuming much of the burden of examining and evaluating voluminous documents that currently falls on the trial judge.

IV. Conclusion

Upon remand the Government should undertake to justify in much less conclusory terms its assertion of exemption and to index the information in a manner consistent with Part III above. The trial judge may, if he deems it appropriate, appoint a special master to undertake an evaluation of the information.

The procedural requirements we have spelled out herein may impose a substantial burden on an agency seeking to avoid disclosure. Yet the current approach places the burden on the party seeking disclosure, in clear contravention of the

23 In our opinion in Sterling Drug, Inc. v. F. T. C., 146 U.S.App.D.C. 237, 450 F.2d 698 (1971), we remanded a FOIA case to the trial court because it was impossible to determine from the record if the trial court had considered whether all of the disputed information was exempt or whether part was exempt and part not. There we said:

We must agree, however, that there is no indication in the opinion below that the judge considered the possibility of deleting portions of the documents. It may well be that making deletions would not change the character of these documents, since they appear to consist primarily of the thoughts and recommendations of the Commission and its staff. However, there may be appendices or statements of facts which are clearly subject to disclosure. See Šoucie v. David, 145 U.S.App.D.C. 144 at 155, 488 F.2d 1067 at 1078 (1971). We must therefore remand the case so that the District Court judge can consider this possibility and state in his opinion that he has done so. 146 U.S.App.D.C. at 243, 450 F.2d at 704. This case is similar in that we have no way of determining the scope of the trial court's determination of exemption. From all that appears on the record, the trial judge's determination was that he found all information exempt under all three of the alleged exemptions. This inability to determine which exemptions apply to what portions of the information gives rise to the need for an adequate indexing system such as described above.

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
INVESTIGATION, ET AL., DEFENDANTS

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 representing 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.

• Documents C-2 and C-12.

5 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".

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,
U.S. District Judge.

8 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."