-Caveat Lector-
from:
http://www.ll.georgetown.edu/Fed-Ct/Circuit/dc/opinions/94-5408a.html
Click Here: <A
HREF="http://www.ll.georgetown.edu/Fed-Ct/Circuit/dc/opinions/94-5408a.html";>
Oglesby Carl v. US Dept Army</A>
-----
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 27, 1996 Decided March 26, 1996
No. 94-5408
CARL OGLESBY,
APPELLANT
v.
THE UNITED STATES DEPARTMENT OF THE ARMY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 87cv03349)
James H. Lesar argued the cause and filed the briefs for appellant.
Sherri L. Evans, Assistant United States Attorney, argued the cause for
appellees, with whom Eric H. Holder, Jr., United States Attorney, and R.
Craig Lawrence, Assistant United States Attorney, were on the briefs.
Before: WALD, WILLIAMS and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
WALD, Circuit Judge: This case marks yet another stage in Carl Oglesby's
decade-long effort to retrieve World War II vintage documents about a Nazi
general from six government agencies under the Freedom of Information Act, 5
U.S.C. § 552 ("FOIA" or "Act"). Oglesby, a professional writer and lecturer
with a special interest in the politics of clandestine services, submitted
his original FOIA requests in 1985 to the Department of the Army ("Army"),
the Central Intelligence Agency ("CIA"), the Federal Bureau of Investigation
("FBI"), the National Archives and Records Administration ("NARA"), the
National Security Agency ("NSA"), and the Department of State ("State").
Dissatisfied with the responses he received from the agencies, he filed suit
in federal court. The district court granted summary judgment for the
defendants, but this court vacated that decision in 1990, with instructions
for Oglesby to exhaust his administrative remedies. Oglesby v. Dep't of Army,
920 F.2d 57 (D.C. Cir. 1990). Several years later, having exhausted those
remedies without receiving what he considered a satisfactory response,
Oglesby returned to the district court, where the judge again ruled in favor
of the agencies. Oglesby v. U.S. Dep't of Army, Memorandum Opinion, No.
87-cv-3349 (D.D.C. Nov. 2, 1994) ("Mem. Op."). Once again, Oglesby has
appealed to this court, this time challenging one agency's refusal to grant
him a fee waiver for his search, and several agencies' allegedly inadequate
searches, incomplete Vaughn indices, and impermissible exemption
justifications. Oglesby raises three specific claims: (1) that the statute
specifically authorizing NARA to set fees for document production is not
exempt from FOIA's mandatory fee-waiver provision, and therefore NARA was
obligated to waive or reduce the fees for Oglesby's search; (2) that Army,
CIA, and NSA failed to submit adequate Vaughn indices and that Army and CIA
also failed adequately to justify the exemptions on which they based their
decisions to withhold certain responsive documents; and (3) that Army, CIA,
FBI, NSA and State failed to demonstrate that they had conducted adequate
searches in response to Oglesby's request. Because we find that Army, CIA,
and NSA have failed adequately to justify their withholdings, and Army and
CIA have failed to justify the adequacy of their searches, we remand once
again for further explanation on these points. With respect to all claims
against the other three defendants, we affirm the district court.
I. BACKGROUND
Since the early 1970s, Oglesby has relentlessly pursued the story of General
Reinhard Gehlen, who served as chief of a Nazi spy ring during World War II
and who allegedly later negotiated an agreement with the United States which
allowed his spy network to continue in existence despite post-war
de-nazification programs. After World War II, his group, then known as the
Gehlen Organization, was reportedly reconstituted as a functioning espionage
network under U.S. command. According to Oglesby, control of the Gehlen
Organization shifted back to the newly-sovereign West German Federal Republic
as the BND (for Bundesnachrichtendienst, or "the Federal Intelligence
Service") after ten years of U.S. control.
More than ten years ago, Oglesby submitted FOIA requests to six government
agencies, seeking records pertaining to Gehlen and certain post-WWII Nazi
organizations. Oglesby sent identical requests to Army, CIA, NSA, State, and
NARA. The five requests sought the following information:
(a) Records of World War Two German General REINHARD GEHLEN and on his
relationship with any Untied States officials during the period 1944 through
1956.
(b) Records of the meetings held at Fort Hunt, Virginia, in the summer of
1945 between the aforesaid GEHLEN and American officials including U.S. Army
General GEORGE V. STRONG and Office of Strategic Services officer ALLEN WELSH
DULLES.
(c) Records of the U.S. Army "Operation Rusty," carried out in Europe between
1945 and 1948.
(d) Records of post-war Nazi German underground organizations such as ODESSA,
KAMARADENWERK, BRUDERSHAFT, WEREWOLVES and DIE SPINNE.
(e) Records of OSS "Operation Sunrise" in 1945.
Joint Appendix ("J.A.") 39. The sixth request, submitted to the FBI, sought
only requests (a) and (b) above. J.A. 64.
Two years later, dissatisfied with the responses he had received from the
agencies, Oglesby initiated legal proceedings, first in the district court,
and then in the Court of Appeals. With respect to five of the six defendants,
this court held that Oglesby had not exhausted his administrative remedies.
Oglesby, 920 F.2d at 65. However, finding that the precise exhaustion
procedure required under FOIA had not previously been laid out with
sufficient clarity, we permitted Oglesby an opportunity to appeal within each
agency and thereafter refile his suit. With respect to the sixth defendant,
State, the court reversed the district court's decision that the agency had
successfully demonstrated the adequacy of its FOIA search. Id. at 59-60.
On remand, Oglesby exhausted his administrative remedies and, still
dissatisfied, refiled in the district court. At some point during the
proceedings, each of the agencies submitted at least one affidavit regarding
the method and results of the search it conducted pursuant to Oglesby's
request. These affidavits also describe-with varying degree of detail-the
documents the agencies found but refused to disclose, and the FOIA exemptions
on which the agencies based their refusals to release information. Once
again, the district court determined that the searches were adequate and the
exemptions were justified, and granted summary judgment in favor of the
defendants. Oglesby now appeals that decision.
II. DISCUSSION
The Freedom of Information Act requires agencies to comply with requests to
make their records available to the public, unless the requested records fit
within one or more of nine categories of exempt material. 5 U.S.C. § 552(a),
(b). If a document contains exempt information, the agency must still release
"any reasonably segregable portion" after deletion of the nondisclosable
portions. Id. § 552(b). Although the Act makes public disclosure of nonexempt
material mandatory, it also expressly permits agencies, in many
circumstances, to charge certain reasonable fees to help defray the cost of
compliance with their FOIA responsibilities. Id. § 552(a)(4)(A). However, in
certain instances, where the dissemination of information will benefit the
public, FOIA requires the responsive agencies to waive or reduce the fees
they charge the requestor. Id. § 552(a)(4)(A)(iii).
This court has held that the Act also requires an agency in possession of
material it considers exempt from FOIA to provide the requestor with a
description of each document being withheld, and an explanation of the reason
for the agency's nondisclosure. See, e.g., King v. DOJ, 830 F.2d 210, 224
("[T]he agency affidavits must ... disclos[e] as much information as possible
without thwarting the exemption's purpose."); Vaughn v. Rosen, 484 F.2d 20
(D.C. Cir. 1973). The description and explanation the agency offers should
reveal as much detail as possible as to the nature of the document, without
actually disclosing information that deserves protection. See, e.g., King,
830 F.2d at 223. This requirement serves the purpose of providing the
requestor with a realistic opportunity to challenge the agency's decision.
In this case, Oglesby first claims that NARA violated the mandates of FOIA
when it refused to grant him a fee waiver for his search. Second, he alleges
that several of the defendant agencies provided him with inadequate
descriptions of the responsive documents they had located, and that two
agencies further failed to justify their reliance on certain FOIA exemptions.
Finally, Oglesby argues that the agencies have not sufficiently demonstrated
that the searches they conducted in response to his request were "reasonably
calculated to uncover all relevant documents," as required under FOIA. Truitt
v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990).
A. NARA's Fee Statute and FOIA's Fee Waiver
FOIA's fee provision, 5 U.S.C. § 552(a)(4)(A), requires agency regulations to
provide for the setting of reasonable charges for document searches,
duplication and review. The Act also contains a provision waiving the
agency's fees for searches requested for certain noncommercial purposes:
Documents shall be furnished without any charge or at a charge reduced below
the [reasonable standard charges] if disclosure of the information is in the
public interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government and is not
primarily in the commercial interest of the requester.
5 U.S.C. § 552(a)(4)(A)(iii). However, a few paragraphs later, the Act states:
Nothing in [this provision] shall supersede fees chargeable under a statute
specifically providing for setting the level of fees for particular types of
records.
5 U.S.C. § 552(a)(4)(A)(vi) ("subsection (vi)").
NARA claims that subsection (vi) works as an exception not only to FOIA's fee
provisions, but also to the Act's mandatory fee waiver. Since NARA's own
enabling statute specifically provides for the setting of fees, the agency
argues, it is therefore exempt from the FOIA waiver requirement.
The statute which NARA claims justifies its denial of Oglesby's waiver
request authorizes the Archivist
to recover the costs for making or authenticating copies or reproductions of
materials transferred to his custody. Such fee shall be fixed ... at a level
which will recover, so far as practicable, all elements of such costs....
44 U.S.C. § 2116(c) ("NARA § 2116").
In response to NARA's claim of exemption, Oglesby argues that NARA's fee
provision does not meet the requirements for exemption under subsection (vi)
of FOIA's fee provision because NARA § 2116 "neither provides a set formula
for the imposition of fees nor mandates the assessment of fees." Appellant's
Brief at 19. Although on its face, the fee-waiver exception provision
requires neither a statutorily fixed fee nor a mandatory fee, Oglesby claims
that these requirements are implied by the legislative history of FOIA, which
provided examples of fee-setting laws which should and should not qualify
under the exception. See 132 CONG. REC. H-29618 (daily ed. Oct. 8, 1986).
The district court rejected Oglesby's argument, and found that NARA's fee
provision was exempt from FOIA's fee-waiver requirement. We find as well that
the plain language of the two statutes confirms the district court's
determination that the NARA statute is indeed "a statute specifically
providing for setting the level of fees for particular types of records," and
thus fits comfortably within the exception carved out in FOIA subsection (vi).
The legislative history to which Oglesby directs our attention does not
convince us that the district court erred. For example, the fact that
Congress did not intend 31 U.S.C. § 9701, which generally permits the heads
of agencies "to establish the charge for a service or thing of value provided
by the agency," to enjoy exempt status has no bearing whatsoever on NARA §
2116. Whereas "a thing of value" clearly does not describe "particular types
of records," Oglesby cannot credibly claim that NARA's statute, which refers
to "materials transferred to [the Archivist's] custody," succumbs to the same
attack. Although the "types of records" it describes do indeed encompass the
vast bulk of material the agency deals with, the material is nonetheless
accurately identified. In short, pursuant to the plain language of both
provisions, NARA § 2116 qualifies as the genre of fee-setting provision not
to be "supersede[d]" under FOIA's subsection (vi) exemption.
We wish, however, to make it clear that we are in no way ruling on a separate
argument which Oglesby failed to raise in a timely fashion. In a motion filed
after oral argument, Oglesby pressed the claim that the FOIA subsection (vi)
exception excuses a qualified agency only from FOIA's fee-setting
requirements, and not from the fee-waiver provision. Oglesby attempts at this
point to argue that the legislative history of the fee-waiver and exception
provisions suggests that Congress intended by subsection (vi) to allow
agencies the freedom to develop their own fee-setting formulae, without also
intending to allow those agencies to refuse categorically to provide waivers
in the public interest. However, since Oglesby did not raise this argument in
a timely manner, we do not address it on the merits. See, e.g., Charter Oil
Co. v. Am. Employers' Ins. Co., 69 F.3d 1160, 1170-71 (D.C. Cir. 1995) (issue
waived where not raised until reply brief); McBride v. Merrell Dowell &
Pharmaceuticals, Inc., 800 F.2d 1208, 1211 (D.C. Cir. 1986) ("[c]onsidering
an argument advanced for the first time in a reply brief ... is not only
unfair to an appellee but also entails the risk of an improvident or
ill-advised opinion on the legal issues tendered.") (citations omitted). 1
We refer to this argument only to emphasize that our narrow ruling today on
the argument Oglesby did successfully make is not intended to bar a future
challenge on broader grounds. In this case, we hold only that NARA § 2116
fits within the description of fee-setting laws set out in FOIA subsection
(vi).
B. Vaughn Indices and Exemptions
In Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), this court outlined the
requirements an agency must meet in indexing the documents it has found
responsive to a FOIA request. The court explained that it would "simply no
longer accept conclusory and generalized allegations of [FOIA] exemptions,"
but rather would require agencies to offer "a relatively detailed analysis in
manageable segments." Id. at 826. Because FOIA challenges necessarily involve
situations in which one party (the government) has sole access to the
relevant information, and that same party bears the burden of justifying its
disclosure decisions, the courts must require the government to provide as
detailed a description as possible-without, of course, disclosing the
privileged material itself-of the material it refuses to disclose.
Additionally, the agency must determine if any portion of an exempt document
contains nonexempt information, and, if so, must disclose that nonexempt
portion. "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." Id. at 827. If an affidavit submitted by an agency contains
sufficient detail to forge the "logical connection between the information
[withheld] and the claimed exemption," Goldberg v. U.S. Dep't of State, 818
F.2d 71, 78 (D.C. Cir. 1987), then the court will accord that affidavit
substantial weight and consider the agency's "unique insights into what
adverse effects might occur as a result of public disclosure." Id.
In this case, Oglesby challenges the adequacy of the document descriptions
offered in the affidavits submitted by Army, CIA, and NSA, which he claims
are too sparse to allow an assessment of the various exemptions on which the
agencies based their decisions to withhold responsive documents. In an
overlapping claim, Oglesby raises specific challenges to Army's and CIA's
reliance on FOIA exemptions 1 and 3, even with respect to individual
documents described in adequate detail in the affidavits. He criticizes Army
for not specifically stating that the supposedly exempt documents had been
classified in accordance with the appropriate procedures, and he faults CIA
for failing to address specifically the age of the documents and for
depending on an allegedly unreliable affiant.
FOIA exemption 1, 5 U.S.C. § 552(b)(1), protects from disclosure matters that
are: (A) specifically authorized under criteria established by an Executive
Order to be kept secret in the interest of the national defense or foreign
policy; and (B) are in fact properly classified pursuant to that order. Id.
The Army and the CIA both withheld information under this exemption.
Exemption 3, 5 U.S.C. § 552(b)(3), protects from disclosure matters that are
specifically exempted from disclosure by statute. The CIA withheld
information under this exemption, claiming that two statutes specifically
operated to exempt certain responsive information; 50 U.S.C. § 403(d)(3),
which requires the CIA to protect intelligence sources and methods from
unauthorized disclosure; and 50 U.S.C. § 403g, which provides that the CIA
shall be exempt from any other law requiring the publication or disclosure of
the organization, functions, names, official titles, salaries, or numbers of
people employed by the CIA.
Because resolution of the issues raised by Oglesby's appeal depends on a
fact-intensive analysis of each of the agencies' searches and declarations,
we outline the relevant facts regarding each agency separately.
1. Army
In response to Oglesby's initial request in 1985, Army eventually informed
Oglesby that it had located responsive documents concerning three of the
topics contained in his request: Operation Rusty, Odessa, and Gehlen. In May,
1986, Army informed Oglesby by letter of its decision to withhold significant
portions of the responsive documents. The unreleased information consisted
of: eleven pages (and various redactions) in the ninety-nine pages of records
pertaining to Odessa; all of the 483 pages of records it had located
pertaining to Operation Rusty; and nine of 264 pages of records regarding
Gehlen.
Oglesby sued for release of the undisclosed documents, which prompted Army to
submit the affidavit of Robert Walsh, describing the responsive documents and
attempting to justify Army's withholdings. The Walsh declaration revealed
that the Army initially released seventy pages of Odessa records in their
entirety and eighteen in redacted form. Another eleven pages, the Army
withheld under exemption 1 (classified information). Aff. of Robert J. Walsh
3 (Apr. 6, 1988) ("Walsh Declaration"); J.A.189. Additionally, Army denied
access to an entire 483-page Operation Rusty file, also on the basis of FOIA
exemption 1. Id. at 7; J.A. 193.
The Walsh declaration described each of nineteen separate documents Army had
identified as responsive to Oglesby's request, and detailed the
justifications for any unreleased portions of those documents. In general,
the affidavit contained sufficient detail to allow a reviewing court to
assess the applicability of the claimed exemptions to the undisclosed
information. For example, the Army declared with respect to two documents:
c. Document 3 is a cover letter originated by the 971th [sic]
Counterintelligence Corps dated 19 May 1947 consisting of one page with one
enclosure consisting of three pages. The subject of the cover letter is
Organization Coburg, and is currently classified CONFIDENTIAL. Portions of
paragraphs 2 and 3 of this cover letter were redacted to exempt classified
information relating to intelligence methods and sources and foreign
classified matters. The remaining paragraph and all three pages of the
enclosure were regraded unclassified on 25 May 1986 and released to plaintiff.
...
f. Document 6 is a one-page letter originated by the 971th [sic]
Counterintelligence Corps, dated 25 November 1946, with subject Organization
ODESSA. This document was regraded unclassified on 25 May 1983 and redacted
to exempt only the identity of a confidential source.
Id. at 4-5; J.A. 190-91.
With respect to the 483-page document withheld in full, however, the
affidavit offers significantly less detail:
o. Document 15 is a complete intelligence operation consisting of 483 pages,
entitled Operation Rusty. By letter dated 20 May 1986, plaintiff was advised
that this document was properly and currently classified CONFIDENTIAL and was
withheld in its entirety. The operation concerned gathering positive and
counterintelligence information concerning the activities and organizations
of an Intelligence Service and activities of various dissident German
organizations. The operation involved close coordination and cooperation with
foreign and other US intelligence organizations. Release of this information
would reveal intelligence activities, sources and methods as well as
classified foreign government activities.
Id. at 7; J.A. 193.
On remand, Army supplemented the Walsh declaration with a 1992 affidavit by
William Grayson. Decl. of William E. Grayson (Aug. 3, 1992) ("Grayson
Declaration"); J.A. 177. For each item of information that still had not been
turned over to Oglesby, Grayson explained what had been withheld and why. For
example, with respect to one document, he wrote:
a. Pages 13-17
The information on these pages is from a document dated September 10, 1947
and describes activities of ODESSA and related organizations. We have
withheld only the name and other identifying data-aliases, address, date and
place of birth, occupation, and physical description-of the individual
(apparently a German citizen) who was the confidential source of this
information, and we relied upon [FOIA exemption 7] to support our
withholding. Although the passage of time and/or the death of confidential
sources do not extinguish the protections of [exemption 7], we note that this
document indicates that the source was born during the 1920's and therefore
would be likely to still be living.
Grayson Decl. at 3-4; J.A. 179-80. With respect to the Operation Rusty file,
however, the Grayson declaration offered no new information. Grayson provided
a similar description to that which appeared in the Walsh declaration, and
concluded that "release of the information would reveal intelligence
activities, sources, and methods and also classified foreign government
activities" and was therefore not required under exemption 1. Id. at 8; J.A.
184. Grayson also declared that, "considering the nature of the document
(which is, in effect, a collection of documents), no one portion could be
considered reasonably segregable." Id. at 9; J.A. 185.
At the time of the Grayson declaration, nine of 264 pages regarding Gehlen
had still not been turned over to Oglesby. Grayson explained these
withholdings in paragraph 8 of the affidavit:
The remaining 9 pages contain information pertaining to intelligence
activities, sources, and methods and also contain classified foreign
government information. We cannot describe the material in more detail
without revealing classified information. As with the Operation Rusty file,
should the Court require further information, we will submit a classified
declaration or the full text documents for the Court's in camera, ex parte
inspection.
Id. at 9-10; J.A. 185-86.
Oglesby claims that Army's Vaughn index is inadequate for two reasons: first,
because the Operation Rusty file is not indexed in detail; and second,
because the affidavit fails to declare specifically that no portion of the
withheld material pertaining to Gehlen was further segregable into exempt and
nonexempt portions. Oglesby also claims that Army failed adequately to
justify the withholdings it took under FOIA exemption 1, because the
affidavits did not specifically assert that the "classified" information had
been classified in accordance with the procedure laid out in the appropriate
Executive Order.
Oglesby's first two complaints merit some attention. The Army provided the
district court with relatively little information about a 483-page document
it determined was wholly exempt from FOIA disclosure. Although the Army avers
that the file is not segregable, the Grayson declaration provides no details
justifying that conclusion. In fact, the affidavit describes the file as "in
effect, a collection of documents." Id. at 9; J.A. 185. Since Vaughn and its
progeny require that an agency itemize each document and explain the
connection between the information withheld and the exemption claimed, the
Army should be required on remand to provide any disclosable information
regarding each document in the Operation Rusty "compilation." The Army has
not adequately explained why it cannot provide general information (for
example: length, date, author and brief description of each document) which
would present Oglesby with a more realistic opportunity to challenge Army's
invocation of exemptions.
Similarly, Army has failed to offer any useful description of the nine
undisclosed pages of Gehlen material. We cannot so easily accept the district
court's determination that "[t]he fact that such a tiny percentage of the
[264 pages of] documents was withheld, coupled with the Army's evident
awareness of the requirement that it disclose reasonably segregable nonexempt
portions, leads the Court to the conclusion that the Amy did indeed make such
a determination with respect to the Gehlen files." Mem. Op. at 4; J.A. 469.
Although it is quite possible that the Army, which released the vast majority
of the Gehlen material, was indeed aware of its duties under FOIA to disclose
all nonsegregable information, Army has not provided this court with an
adequate explanation on which we can rely for that finding. We therefore
remand for a description of the specific documents (or segments) withheld and
an explanation of the harm that might result from release of the undisclosed
information.
Oglesby's third claim against this defendant-that Army failed to justify its
reliance on exemption 1 because it did not specifically assert that the
"classified" information had been labeled in accordance with the procedure
laid out in the appropriate Executive Order-elicits less concern. The Walsh
declaration asserts that the material withheld pursuant to exemption 1 "meets
the criteria set forth in [the Executive Order] which provides that
information concerning intelligence activities, sources, or methods shall be
considered for classification protection." Walsh Declaration at 9, 10; J.A.
195, 196. Walsh also stated that he had personally reviewed each of the
documents and determined that they were "currently and properly classified,
SECRET and CONFIDENTIAL." Id. The district court held-and we agree-that these
claims that the information was "classified" encompass both the procedural
and substantive aspects of classification.
2. CIA
In response to Oglesby's initial 1985 FOIA request, CIA released twenty pages
of material it had previously released to someone else pursuant to a 1983
FOIA request for information on Gehlen and Operation Sunrise. Letter from
John H. Wright to Carl Oglesby (Sept. 10, 1985); J.A. 57. The agency then
informed Oglesby that it would not conduct a new search on Gehlen or any of
the other listed topics unless and until Oglesby wrote back and agreed to pay
search fees. Rather than responding to the letter, Oglesby filed suit. In our
earlier opinion, we encouraged the Army to reconsider a decision it had made
to deny Oglesby a fee waiver, Oglesby, 920 F.2d at 66 n.11, and on remand,
both Army and CIA informed Oglesby that his waiver would be granted. CIA then
conducted a search, during which it discovered thirty-five responsive
documents. The agency disclosed twenty-nine of these documents, and withheld
six of them pursuant to various FOIA exemptions.
The CIA coordinated its Vaughn declaration with the FBI's, since the FBI had
forwarded thirteen responsive documents for CIA review. The CIA submitted the
declaration of Lee Carle, dated June 1, 1988, and the FBI submitted an
affidavit by Angus Llewellyn, dated May 26, 1988. The Carle declaration
described in impressive detail each document and portion thereof which CIA
had located but refused to release. For example, Carle offered the following
justification for withholding a one-page memo:
This one-page CIA memorandum to Director ... from Deputy Director ... is
classified SECRET. This document is denied in its entirety pursuant to FOIA
exemptions (b)(1) and (b)(3) as no meaningful segregation can be made for
release to Plaintiff. Disclosure of any portion of this information would
identify by name a foreign intelligence source of the CIA and specific
methods by which CIA collected information on this source. The information
withheld relates to possible travels and activities of the source during a
precise time period. The names of the source's traveling companions are also
included in the deleted information. Release of the information itself would
immediately reveal specific details relating to activities and travel plans
of these foreign intelligence sources, thereby allowing them to be easily
identified.
Declaration of Lee E. Carle 19-20 (June 1, 1988) ("Carle Declaration").
After our first remand, CIA supplemented the Carle Declaration with a 1993
affidavit by Katherine Stricker. Declaration of Katherine M. Stricker (Jan.
15, 1993) ("Stricker Declaration"); J.A. 248. In addition to the documents
discussed in the Carle Declaration, Stricker addressed two new documents
(documents 5 and 6 in her document description index, id. at 4; J.A. 251),
which she described in significant detail. For example, Stricker referred to
"document 6" as follows:
This 78-page document is a chronological accounting of Operation Sunrise.
This document is released in sanitized form. The redacted information is
withheld pursuant to FOIA exemptions (b)(1) and (b)(3). The information
withheld on pages 11, 34, and 35 of this document pertains to a liaison
relationship with a foreign government. (See paragraph 17, the Stricker
Declaration [explaining that "liaison relationships" are initiated and
continued only on the basis of secrecy] ). I have determined that release of
this information could reasonably be expected to cause damage to the national
security. Therefore, the full-text version of this document is currently and
properly classified at the SECRET level.
Id. at 17; J.A. 264.
Although both Carle's and Stricker's declarations offer sufficient details to
allow a court to assess the propriety of most of the exemptions claimed by
the CIA, Stricker's declaration also contains a reference to "additional
responsive documents" which the agency nowhere describes or explains. Id. at
4; J.A. 251. Apparently the agency intended to submit a classified index in
camera, but for some reason failed to do so. 2 With respect to these
documents, which CIA has never described for Oglesby, the agency has clearly
failed to meet its FOIA obligation to justify each and every exemption taken.
Despite CIA's failure either to describe the documents or to submit the
classified index in camera, the district court expressly found both that the
CIA's Vaughn index was adequate, Mem. Op. at 5; J.A. 470, and that the CIA
had described its withheld information and its justifications for the
withholdings, "with reasonable specificity, demonstrating a logical
connection between the information and the claimed exemption." Id. at 7; J.A.
472. At oral argument, counsel for the defendants conceded the need for a
remand on this point. 3
Oglesby challenges the adequacy of CIA's Vaughn index, which we can quickly
declare insufficient with respect to the undescribed "additional" documents.
However, Oglesby also claims that CIA has failed to justify its withholding,
under FOIA exemptions 1 and 3, of material it did describe in the affidavits.
First, he argues that CIA's failure to explain expressly why the passage of
time has not diminished the security concerns with respect to the undisclosed
records renders the affidavits inadequate to justify the exemptions. Second,
Oglesby charges that the district court should not have relied on the
Stricker declaration because Ms. Stricker's credibility had been tarnished by
her involvement in a separate proceeding, in which she submitted an affidavit
stating that disclosure of certain information, which it was later learned
had been released thirty years before without incident, would cause damage to
the national security if released. Appellant's Brief at 36.
To back his claim that the passage of time has reduced the risk of this
information leading to breaches in security, Oglesby points to the CIA's
Historical Review Program ("HRP"), pursuant to which the agency
systematically reviews for declassification all records more than thirty
years old. See HR 70-14 a.(1); J.A. 333. Although we would not go so far as
the district court and deny that CIA's review program "ha[s] any relevance"
to Oglesby's claim, Mem. Op. at 8 n.4; J.A. 473, neither do we believe that
the passage of time alone is enough to discredit an otherwise detailed and
persuasive affidavit. Oglesby has not demonstrated that an agency's national
security concerns automatically disappear with the passage of time, and
therefore has not rebutted the affidavits stating that the material had been
reviewed at the time of the request, and had been determined to pose a current
threat to national security if released.
Nevertheless, we hesitate to describe the existence of the review program as
"irrelevant," because if Oglesby could show that withheld information is
substantially similar to information the government has declassified because
of its age, he might raise a successful challenge to the government's
reliance on exemption 1. In this case, however, he has presented no such
evidence; he has merely made the naked assertion that the passage of time
renders the national security claims questionable. As long as an agency
declares through its affidavits that the responsive material has been
reviewed to assure the continuing accuracy of its original classification,
and that a determination has been made that the withheld information still
poses a security risk if released, the mere passage of time is not a per se
bar to reliance on exemption 1. 4
With respect to Oglesby's second challenge-to the credibility of CIA's
affiant-we note that the record contains no suggestion that the error
Stricker allegedly made in the unrelated case involved any duplicity or
intentional misrepresentation. Without any allegation of bad faith, we are
unwilling to assume that an agency employee who withholds information that
ultimately turns out to be substantially similar to information that has
already been released-in short, an employee who makes a mistake-is forever
barred from serving as a reliable affiant in the future. Accordingly, we
reject Oglesby's claim that the district court should have rejected the
Stricker declaration on that basis.
3. NSA
NSA originally responded to Oglesby's request by informing him that his fee
waiver had been denied and that the search would likely cost him $900. After
Oglesby filed suit for the first time, NSA reversed its original position and
granted him a waiver. In 1990, the agency made its "final response" to the
request, releasing four documents pertaining to "werewolves" and several
others regarding Gehlen. In addition, the agency withheld several documents
pursuant to exemptions 1 and 3.
Oglesby appealed the agency's decision to withhold part or all of five
separate reports and two letters. The NSA refused to disclose the documents
in unredacted form because "release of certain portions of these documents
would reveal specific information regarding communications intelligence and
cryptologic activities, thereby jeopardizing intelligence sources and
methods." Declaration of Michael A. Smith 4 (May 4, 1992) ("Smith
Declaration"); J.A. 167. Through the Smith declaration, NSA claimed that some
of the withheld information ("such as titles of reference documents used in
the preparation of one of the reports at issue, codewords and distribution
caveats, and matters of foreign relations") met the criteria for exemption 1,
and the rest ("including employee names") was also protected by exemption 3.
Id. at 5; J.A. 168.
In subsequent affidavits, NSA supplemented the Smith declaration with
statements by Boyd Wooton, J.A. 453 ("Wooton Declaration"), and Robert
Killen, J.A. 456 ("Killen Declaration"). Wooton described the usual search
procedure for NSA, and Killen provided details regarding the actual procedure
the agency implemented in conducting Oglesby's search. Killen ran a new
search of the agency's files, entering the terms: Gehlen, Strong, Dulles,
Hunt, Rusty, Odessa, Kamaradenwerk, Bruderschaft, Werewolf, Werewolves,
Spinne, and Sunrise. Killen Declaration at 2; J.A. 457.
In June, 1994, Smith issued a supplemental declaration in which he explained
that Killen's search had produced eight new responsive documents.
Supplemental Declaration of Michael A. Smith (June 28, 1994) ("Smith Supp.");
J.A. 459. Three of these documents were released in full and five were
withheld in full. The supplemental affidavit offered no details regarding the
five documents, but conclusively stated that they were all currently and
properly classified either TOP SECRET or SECRET because "the disclosure of
all or any portion of their contents could reasonably be expected to cause
exceptionally grave damage and serious damage, respectively, to the national
security." Smith Supp. at 3; J.A. 461. Smith also averred that these five
documents satisfied the requirements for exemption 3 as well, since they
contained classified information concerning communications intelligence
activities. Id. at 4; J.A. 462. The affidavit concluded with the sweeping
declaration that "it is not possible to describe further the withheld
information in an unclassified declaration because any additional description
would itself divulge classified information." Id.
Oglesby claims that NSA's Vaughn index inadequately describes the responsive
material, and we are inclined to agree with him. With respect to documents
located since this case's last visit to the Court of Appeals, NSA's
affidavits contain only sweeping and conclusory assertions that the agency
withheld the documents because they contained material which could reasonably
be expected to cause damage to national security. The affidavits offer no
functional description of the documents; NSA has failed to disclose the types
of documents, dates, authors, number of pages, or any other identifying
information for the records it has withheld. Comparison of these affidavits
with the Army and CIA declarations highlight the shortcomings of the NSA
statements.
Thus we agree with Oglesby that NSA has clearly failed to provide an adequate
Vaughn index. On remand, the district court should order NSA to submit an
index describing the withheld documents to the greatest extent possible
without disclosing information that must be protected.
C. Adequacy of the Searches
In addition to attacking the adequacy of the Vaughn indices and exemption
justifications offered by Army, CIA and NSA, Oglesby challenges the adequacy
of the searches conducted by those agencies, as well as by FBI and State.
1. Army.
In a letter to Oglesby dated March 31, 1986, Army explained that it had
searched its automated Defense Central Index of Investigations ("DCII") and
Investigative Records Repository ("IRR") for records responsive to his FOIA
request. Letter from Thomas Conley to Carl Oglesby (Mar. 31, 1986); J.A. 41.
According to the letter, DCII "is a computerized index to intelligence
investigative records maintained by the Department of Defense" and the IRR
"is the Army's official storage facility for all intelligence investigative
records." Id. at 1. Oglesby claims that Army has failed to aver that these
two indices are the only places pertinent records might be stored.
Appellant's Brief at 44 ("The record also does not clarify whether INSCOM
maintains other indices of its records, computerized or manual. Discovery is
needed to answer these questions.").
To back his claim on this issue, Oglesby cites to a book about Reinhard
Gehlen in which the author asserts that Army Intelligence provided her with
"well over a thousand documents" about Gehlen in response to her FOIA
requests. MARY ELLEN REESE, GENERAL REINHARD GEHLEN: THE CIA CONNECTION xiii
(1990); J.A. 342. Although information in the record fails to reveal the
precise nature of the FOIA request the book author submitted, and therefore
her experience cannot prove that Army's search was inadequate, her claim
raises enough of a doubt to preclude summary judgment in the absence of an
affidavit describing Army's filing system and decision to search only the
DCII and IRR indices. Although Oglesby argues that discovery is needed to
answer his questions regarding the adequacy of Army's search, a relatively
detailed affidavit addressing the issue could suffice.
2. CIA
With respect to the CIA, the district court ruled that the agency had
conducted an adequate search, and that CIA's failure to describe its
subsequent search which located additional records was "irrelevant." Mem. Op.
at 10; J.A. 475. We disagree that the court had sufficient information on
which to base its summary judgment determination. Particularly since the
record does not disclose how many additional documents were produced in the
subsequent search, or offer any description of the nature of these documents,
the court could not properly conclude that the original search (which failed
to locate any of these possibly numerous and important documents) was
"reasonably calculated to uncover all relevant documents." Truitt v. Dep't of
State, 897 F.2d 540, 542 (D.C. Cir. 1990); see also Founding Church of
Scientology v. NSA, 610 F.2d 824, 837 (D.C. Cir. 1979) ("[I]f, in the face of
well-defined requests and positive indications of overlooked materials, an
agency can so easily avoid adversary scrutiny of its search techniques,
[FOIA] will inevitably become nugatory.").
3. FBI
The FBI submitted a detailed affidavit describing each document it found in
response to Oglesby's original request, as well as each paragraph or
subparagraph deleted from each document. See Declaration of Angus Llewellyn
(May 26, 1988) ("Llewellyn Declaration"). Because Oglesby does not attack the
adequacy of the FBI's index, we will not detail the documents withheld or the
explanations offered to justify the exemptions.
Oglesby challenges only the adequacy of the search conducted by FBI. In
response to his initial request, the FBI released a document which suggested
to Oglesby that certain Gehlen files might be found in a "section tickler"
and that this tickler might contain records responsive to his request. He
wrote to the FBI and asked that they search under additional terms and that
they search the section tickler. See Declaration of Karlton D. Bolthouse 3
(Sept. 24, 1992); J.A. 229. On August 8, 1991, the FBI responded that it had
conducted the additional requested search and had located no additional
documents. The letter also informed Oglesby that the reference to a "section
tickler" did not indicate that any other responsive documents existed. Id. at
4; J.A. 230.
The FBI's response to Oglesby described the Bureau's search in sufficient
detail to satisfy summary judgment standards. The FBI assured Oglesby that,
"the reference to a "section tickler' was not an indication that other
responsive records existed," id., and Oglesby has advanced no reason to doubt
that allegation. Oglesby seems to believe that common sense dictates the
conclusion that a "tickler" necessarily contains documents. We do not find it
so clear that a "tickler" must be a repository for documents, and we will not
second-guess FBI's affidavit on this point.
4. State
As with the FBI, Oglesby challenges the district court's ruling in favor of
State only with respect to the adequacy of the department's search.
In a 1992 declaration submitted by Frank Machak, State described its filing
system and the search the department conducted in response to Oglesby's
request. Declaration of Frank Machak (Mar. 30, 1992) ("Machak Declaration").
According to the affidavit, State organizes its files under three categories:
automated document system (files from 1973-present); central foreign policy
files (1954-1973); and lot files (described by Machak as "paper files retired
by foreign service posts and by Department offices, covering the time period
circa 1954-present that are maintained in sealed boxes, known as lots, and
arranged according to subject matter and time periods"). Id. at 6; J.A. 155.
All State records covering the period prior to 1954 had been accessioned to
NARA, and therefore State conducted a search only with respect to the first
item on Oglesby's request (records pertaining to Gehlen and his relationship
with U.S. officials). A research specialist determined that any documents
responsive to Oglesby's request which had been retained by State would be
contained in the central foreign policy files. State apparently did not
search the lot files, because "the description of records requested ... was
not specific enough to allow for [it]." Id. at 9; J.A. 158. Lot files are
organized only by nine broad subject categories (administration, business
affairs, consular affairs, economic affairs, military and defense,
operations, political affairs, social affairs, and technology & science), and
not by individuals' names. Id.
Oglesby raises two objections to State's conduct of its search: first, he
alleges that the Department's failure to search the lot files rendered the
search inadequate; and second, he claims that the court cannot rule on the
adequacy of the search based on Machak's declaration because Machak was
allegedly involved in an unlawful attempt to expedite an unrelated FOIA
request in 1992. Appellant's Brief at 47. The district court rejected these
claims, and we affirm that decision.
State adequately addressed the first of Oglesby's concerns when it explained
that the lot files are organized by nine broad subject categories and not by
individuals' names. J.A. 158. Since State's search only reached the first
item on Oglesby's list (because the other items had been accessioned to
NARA), the department sought only information pertaining to Gehlen and his
relationship with U.S. officials. If, as the affidavit alleges, the lot files
cannot be searched for an individual's name, we find that it is reasonable
that State would require more specific information in order to search these
files.
Oglesby's second challenge also lacks merit. The district court found "no
reason to doubt Machak's credibility in this case," and we find no reason to
challenge that conclusion. Particularly in light of the fact that the judge
in the case which Oglesby claims reveals Machak's untrustworthiness
ultimately determined that Machak's declaration in that case had been "well
grounded in fact," Nation Magazine v. Dep't of State, 92-cv-2302, slip
opinion at 29 (D.D.C. Aug. 18, 1995), we find Oglesby's unsupported
allegations attacking Machak's credibility insufficient to convince us to
reverse the district court's decision.
5. NSA
Oglesby claims that the Smith declaration "contains no information whatsoever
concerning the nature of the search it conducted." Appellant's Brief at 48.
What Oglesby's brief fails to mention is that on remand, NSA submitted
additional affidavits that do detail the nature of the agency's search. The
Killen declaration explains that Killen personally ran all of the main terms
in Oglesby's request through NARA's Archival Information Retrieval System
("AIRS"), "the only system of records ... that could reasonably be expected
to contain any archival records responsive to plaintiff's FOIA request."
Killen Declaration at 1; J.A. 456. Because Oglesby has put forward no reason
to doubt the sufficiency of this search, we affirm the district court's
holding that NSA had demonstrated the adequacy of its search.
III. CONCLUSION
In sum, we affirm the district court in part and reverse in part, holding:
(1) that the district court correctly rejected Oglesby's claim that NARA's
fee-setting statute was not a "statute specifically providing for setting the
level of fees for particular types of records," and therefore did not fall
within 5 U.S.C. § 552(a)(4)(A)(vi)'s exemption from FOIA's fee requirements;
(2) that Army, CIA and NSA all submitted inadequate Vaughn indices;
(3) that the district court correctly held that FBI, State, and NSA had
demonstrated that they had conducted adequate searches; and
(4) that Army and CIA have not provided sufficient information to justify the
district court's finding that their searches were reasonably calculated to
uncover all responsive documents.
Thus, we affirm the district court's decision with respect to NARA, FBI, and
State, but reverse and remand for further proceedings involving Army, CIA and
NSA.
So ordered.
Footnotes
1 Here, Oglesby did not even raise this argument in his reply brief; he
raised it for the first time two weeks after oral argument.
2 Before oral argument, the defendants moved to dismiss Oglesby's appeal,
claiming that the CIA's failure to submit the classified index for in camera
review rendered the district court's disposition of this case non-final.
Defendants allege that the judge could not have offered a final disposition
against every defendant since she had not even seen all of the evidence on
which she was to rule.
Although the defendants are certainly correct to note that a judge cannot
properly find that evidence which she has never seen and which the agency has
never described satisfies FOIA's exemption requirements, the impropriety of
the ruling does not change the fact that the district court held that "the
CIA's exemption 1 claims are justified." J.A. 471.
3 Oglesby correctly notes that even if the CIA had submitted the index as
planned, the agency had not created a sufficient public record to justify an
in camera review because it had not made public as much information as
possible. Lykins v. DOJ, 725 F.2d 1455, 1463-65 (D.C. Cir. 1984). In Lykins,
the court found the government's Vaughn index "clearly insufficient" to
support an in camera review where the index provided only the date, the type
of document, and a conclusory declaration that the material would be
potentially disruptive. The court warned that "a trial court should not use
in camera affidavits unless necessary and, if such affidavits are used, it
should be certain to make the public record as complete as possible." Id. at
1465. The CIA has offered far less information here than the agency in Lykins;
the public record contains no information except a vague reference to
"additional responsive documents."
4 To back his argument that the agency must specifically address the passage
of time, Oglesby cites several cases which we find inapposite. The only case
from this court, King v. U.S. Dep't of Justice, 830 F.2d 210 (D.C. Cir.
1987), involved a request for documents which had been classified under an
executive order which specifically directed the agency to consider "the
passage of time" and which had been reviewed by the agency only for procedural
compliance with the executive order. Id. at 226.
In addition to King, Oglesby points to dicta in two nonbinding cases from the
Northern District of California which we find uncompelling in this context.
In Powell v. U.S. Dep't of Justice, the court found that the government had
"manifested a bad faith disregard for plaintiff's rights under FOIA," id. at
1513, and supplied only conclusory affidavits claiming that the release of
certain information could cause damage to national security, id. at 1517.
Likewise, in Dunaway v. Webster, 519 F. Supp. 1059, 1069 (N.D. Cal. 1981),
the government had submitted only "conclusory statements" to justify
continuing classification under a different executive order which the court
determined embodied a "clear policy" of declassification for older documents.
Id.
-----
Aloha, He'Ping,
Om, Shalom, Salaam.
Em Hotep, Peace Be,
All My Relations.
Omnia Bona Bonis,
Adieu, Adios, Aloha.
Amen.
Roads End
<A HREF="http://www.ctrl.org/";>www.ctrl.org</A>
DECLARATION & DISCLAIMER
==========
CTRL is a discussion & informational exchange list. Proselytizing propagandic
screeds are unwelcomed. Substance—not soap-boxing—please! These are
sordid matters and 'conspiracy theory'—with its many half-truths, mis-
directions and outright frauds—is used politically by different groups with
major and minor effects spread throughout the spectrum of time and thought.
That being said, CTRLgives no endorsement to the validity of posts, and
always suggests to readers; be wary of what you read. CTRL gives no
credence to Holocaust denial and nazi's need not apply.
Let us please be civil and as always, Caveat Lector.
========================================================================
Archives Available at:
http://peach.ease.lsoft.com/archives/ctrl.html
<A HREF="http://peach.ease.lsoft.com/archives/ctrl.html";>Archives of
[EMAIL PROTECTED]</A>
http:[EMAIL PROTECTED]/
<A HREF="http:[EMAIL PROTECTED]/";>ctrl</A>
========================================================================
To subscribe to Conspiracy Theory Research List[CTRL] send email:
SUBSCRIBE CTRL [to:] [EMAIL PROTECTED]
To UNsubscribe to Conspiracy Theory Research List[CTRL] send email:
SIGNOFF CTRL [to:] [EMAIL PROTECTED]
Om
