CHURCH OF SCIENTOLOGY OF CALIFORNIA, INC., Appellant
Stansfield TURNER, Director, Central Intelligence Agency, et al.
United States Court of Appeals,
District of Columbia Circuit.
Argued Nov. 14, 1980.
Decided Dec. 18, 1980.
Church filed a Freedom of Information Act request with the Central
Intelligence Agency seeking all documents relating to any of affiliated
organizations or its founder. The United States District Court for the
District of Columbia granted summary judgment in favor of Central Intelligence
Agency, and church appealed. The Court of Appeals held that where CIA
affidavit provided a paragraph-by-paragraph analysis of each of documents
withheld in whole or in part and for each document the affidavits indicated the
sender, recipient, source of information, and why partial release was or was
not possible and for each segment withheld, affidavits specifically indicated
adverse consequences that would flow from its release, affidavits submitted as
a Vaughn index were adequate to permit district court to rule on agency's
claims of exemption.
Where CIA affidavit provided a paragraph-by-paragraph analysis of each of
documents withheld in whole or in part and for each document the affidavits
indicated the sender, recipient, source of information, and why partial release
was or was not possible and for each segment withheld, affidavits specifically
indicated adverse consequences that would flow from its release, affidavits
submitted as a Vaughn index were adequate to permit district court to rule on
agency's claims of exemption. 5 U.S.C.A. s 552(b)(1, 3).
*784 **269 Appeal from the United States District Court for the District
of Columbia (D.C. Civil No. 75-1048).
Robert A. Seefried, Washington, D. C., with whom Earl C. Dudley, Jr.,
Washington, D. C., was on the brief for appellant.
Marc Johnston, Atty., Dept. of Justice, Washington, D. C., with whom Alice
Daniel, Asst. Atty. Gen., Charles F. C. Ruff, U. S. Atty., Leonard Schaitman,
Atty., Dept. of Justice, Washington, D. C., were on the brief for appellee.
Wendy N. Keats, Washington, D. C., entered an appearance for appellee.
Before McGOWAN and EDWARDS, Circuit Judges, and JOYCE HENS GREEN,[FN*]
*785 **270 United States District Judge for the District of Columbia.
FN* Sitting by designation pursuant to 28 U.S.C. s 292(a).
Opinion PER CURIAM
This is an appeal from a grant of summary judgment by the District Court in
favor of defendant Central Intelligence Agency and its director, Stansfield
Turner, in an action challenging appellees' refusal to release all or portions
of 25 documents requested under the Freedom of Information Act. The critical
question presented to us on appeal is the sufficiency vel non of agency
affidavits submitted as a Vaughn index.[FN1] Finding that the CIA's affidavits
contained detail ample enough to permit the District Court to rule on its
claims of exemption, we uphold the grant of summary judgment.
FN1. A Vaughn index is compiled for all documents the government wishes to
withhold in order to provide an opportunity for judicial evaluation of the
exemption claims without the invariable need to inspect the contested
documents. The affidavits accompanying the Vaughn index should describe
the indexed documents and why each is being withheld with enough
particularity to make meaningful review possible. See Dellums v.
Powell, 642 F.2d 1351, 1359-1360 (D.C.Cir.1980); Vaughn v. Rosen, 484
F.2d 820, 827 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564,
39 L.Ed.2d 873 (1974).
Appellant Church of Scientology of California filed in 1975 a FOIA request
with the Central Intelligence Agency seeking all documents relating to any of
its affiliated organizations or its founder, L. Ron Hubbard. On an earlier
appeal from the District Court's refusal to require release of all requested
documents, we remanded this case to the District Court for further
consideration in light of Ray v. Turner, 587 F.2d 1187 (D.C.Cir.1978). Upon
remand, the District Court ordered the CIA to file a new Vaughn index and
accompanying affidavits. The CIA complied, describing in detail the documents
in issue and its reasons for withholding wholly or in part 25 of the 40
documents it had identified as responsive to appellant's request. In addition,
the District Court inspected some of the withheld documents in camera. On the
basis of the affidavits and its inspection, the court granted the CIA's motion
for summary judgment.
The tension inherent in any FOIA demand directed to a government agency
engaged in confidential national security affairs has confronted this court in
previous cases. On several occasions,[FN2] we have refused to uphold summary
judgment orders based upon agency affidavits that were too conclusory or vague
to allow the District Court to decide, upon reviewing the claims de novo as
required by FOIA, whether the documents fell within the ambit of either FOIA
exemption 1, 5 U.S.C. s 552(b)(1), covering material appropriately
classified under an executive order, or exemption 3, 5 U.S.C. s 552(b)(3),
protecting material exempted from disclosure by certain other statutes.[FN3]
FN2. See, e. g., Allen v. CIA, 636 F.2d 1287 (D.C.Cir.1980);
Founding Church of Scientology v. National Security Agency, 610 F.2d
824 (D.C.Cir.1979); Ray v. Turner, 587 F.2d 1187 (D.C.Cir.1978).
FN3. In this case, the order relevant for exemption 1 purposes is
Executive Order 12065, 43 Fed.Reg. 28,949 (1978). The CIA asserts that
exemption 3 is also applicable because the provision incorporates by
reference 50 U.S.C. s 403(d)(3), which says, in pertinent part, that
"the Director of Central Intelligence shall be responsible for protecting
intelligence sources and methods from unauthorized disclosure...." For a
judicial gloss on the term "intelligence source," see Sims v. CIA, 642
F.2d 562 at 567-571 (D.C.Cir.1980).
For example, in Founding Church of Scientology v. National Security Agency,
610 F.2d 824 (D.C.Cir.1979), this court held that an affidavit stating that
disclosure would "jeopardize (the agency's) national security functions" was
too conclusory, absent a showing of the particularized harm that could be
expected to occur from production of the requested information. However, we
have also affirmed orders of summary judgment in favor of agencies seeking to
protect confidential information when their affidavits were specific enough to
allow a District Court judge to exercise meaningful de novo review. In Baez
v. *786 **271 United States Department of Justice, 647 F.2d 1328
(D.C.Cir.1980), nondisclosure was upheld on the basis of affidavits asserting
that, inter alia, producing the documents would reveal cooperation with and
perhaps the identity of a foreign intelligence service or a covert intelligence
source. See at 1335.
In determining the adequacy vel non of agency representations we are obliged
to keep in mind the cautionary words of Vaughn itself. In that case, the court
said that "(a)n 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 documents." Vaughn v. Rosen, 484 F.2d 820,
826-27 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d
873 (1974) (footnote omitted). Therefore, the fact that the agency has not
disclosed in its affidavits the information the documents contain need not lead
to the conclusion that the affidavits are inadequate.
In this case, the CIA has, in obvious response to the earlier teachings of
this court, been at some pains to provide two lengthy affidavits which, while
not disclosing the contents of the withheld documents, provide a reviewing
judge with a wealth of information. The affidavits include a lengthy general
discussion of the adverse consequences that could flow from releasing the
information withheld. The release of any particular document, the CIA warned,
could lead to one or more of the following harmful results: breaching
agreements with foreign intelligence services, refusal of intelligence sources
to share information in the future, revelation of intelligence-gathering
methods, and disclosure of the identity of foreign or CIA intelligence
operatives either directly or by inference from the content of the
information. The affidavits assert that release of a message's content could
lead to the revelation of its source, since certain types of information are
known to be in the possession of only a few. See Supplemental Appendix at 9
(hereinafter referred to as S.A.). Appellant has adduced no evidence tending
to undercut the plausibility of this argument.
Having identified the various harms that could be expected from the documents'
production, the CIA then goes on to explain how they relate to FOIA's
exemptions 1 and 3. The agency states that these unwelcome consequences are
exactly what Executive Order 12065 and 50 U.S.C. s 403(d)(3) seek to avoid.
Since exemption 1 incorporates Executive Order 12065 and exemption 3 the
statute, see note 3 supra, the CIA argues that these documents are exempt from
Building upon this general argument, largely contained in the first, or Owen,
affidavit, both affidavits provide a paragraph-by-paragraph analysis of each of
the documents withheld in whole or in part. For each document the affidavits
indicate the sender, the recipient, the source of the information, and why
partial release was or was not possible. For each segment withheld, the
affidavits specifically indicate which of the adverse consequences discussed
earlier could occur upon release.[FN4]
FN4. The discussion of any one document suffices to give a flavor of the
affidavits. For example, Document No. 18 was released in part with the
following explanation: "This document is a two-page dispatch ... from CIA
Headquarters to a foreign CIA station which consists of information ... on
L. Ron Hubbard.... It is released with certain deletions. In the first and
second paragraphs, five cryptonyms were deleted pursuant to exemption
(b)(3).... The third and fourth paragraphs were denied in their entirety
pursuant to exemptions (b)(1) and (b)(3) coextensively since both
paragraphs consist of information provided in confidence by the
intelligence services of two named countries; since the third paragraph
refers to a foreign CIA station and operations; and since the fourth
paragraph contains a cryptonym...." S.A. at 25-26.
We believe that these affidavits provided the kind of detailed, scrupulous
description that enables a District Court judge to perform a searching de novo
review.[FN5] The *787 **272 harms to which the CIA directs the court's
attention are neither amorphous nor conclusory, but reasonable articulations of
precise consequences. The individual descriptions of each portion of the
documents further permit the District Court to determine whether the agency has
properly segregated, within each document, exempt material from information it
must provide to the requester. The CIA could provide no more information
without revealing the content of the document, which was what it sought to
protect from disclosure.
FN5. In addition, it is appropriate for the District Court to inspect some
or all of the documents in camera, as was done in this case, to ensure that
the claimed exemptions are appropriate. The availability of in camera
review is further assurance that the District Court will be able to provide
plaintiffs the benefits of de novo review without disclosing what the
government seeks to maintain in confidence.
We think that a reasonable balance must be struck between the competing
congressionally-sanctioned policies of public access to government information,
on the one hand, and maintenance of a functioning intelligence-gathering
system, on the other. We have consistently maintained that vague, conclusory
affidavits, or those that merely paraphrase the words of a statute, do not
allow a reviewing judge to safeguard the public's right of access to government
records. We believe that the affidavits provided in this case, bottomed as
they are upon specification of both intelligence sources and of the harm to be
expected from disclosure, provide a suitably informed basis on which a District
Court could rationally determine that the withheld portions of the requested
documents are within the claimed statutory exemptions. Accordingly, we affirm.
It is so ordered.