FOUNDING CHURCH OF SCIENTOLOGY OF WASHINGTON, D. C., INC., Plaintiff,
NATIONAL SECURITY AGENCY et al., Defendants.
Civ. A. No. 76-1494.
United States District Court, District of Columbia.
May 19, 1980.
Freedom of Information Act suit was brought against National Security Agency.
The District Court, John Lewis Smith, Jr., J., held that: (1) documents were
exempt from disclosure under Act, and (2) Agency's search for other responsive
documents was adequate.
Defendant's motion for summary judgment granted.
Where, although contents of documents might not have been sensitive, affidavit
established conclusively that functions and activities of National Security
Agency that might be revealed by disclosure of documents included signals
intelligence sources and methods still in active use, sources that were unique
to signals intelligence community and not a matter of public knowledge and
where affidavit demonstrated how disclosure would reveal processing
capabilities of Agency, documents were exempt from disclosure under Freedom of
Information Act. 5 U.S.C.A. s 552(b)(3); National Security Act of 1947, s
101 note, 50 U.S.C.A. s 402 note.
Where National Security Agency explained in detailed fashion how it indexed
signals intelligence materials and why it could not locate requested documents
until provided with identifying serial numbers by Central Intelligence Agency
and where thorough reading of entire record demonstrated that facts regarding
Agency's capability in retrieving information were immaterial, Agency
adequately explained apparent incongruity between its mission to collect
information on particular subjects and its inability to retrieve such
information once gathered and thus agency's search for certain documents was
adequate under Freedom of Information Act. 5 U.S.C.A. s 552(b).
*951 William Dobrovir, Washington, D. C., for plaintiff.
Raymond M. Larizza, Dept. of Justice, Washington, D. C., for defendants.
JOHN LEWIS SMITH, Jr., District Judge.
Plaintiff brought this action under the Freedom of Information Act, 5
U.S.C. s 552(b) (FOIA), seeking release of any documents concerning plaintiff's
affiliated organizations or the subject matter of Scientology. Defendant
National Security Agency (NSA) identified sixteen responsive documents, but
resisted disclosure on the basis of national security exemptions under FOIA.
The Court of Appeals for the District *952 of Columbia Circuit reversed this
Court's July 31, 1977, grant of defendant's motion for summary judgment and
remanded the case for further proceedings to resolve two areas of concern.
First, the remand required a more complete showing that disclosure of the
sixteen items fits within Exemption 3, and second, it required NSA to
demonstrate more fully that it had undertaken an adequate search for other
relevant materials. Defendant's motions for summary judgment and to dismiss
the Director of NSA as an improper party were argued before the Court on April
22, 1980, and on April 25 the Court granted the motion to dismiss the
Director. The Court deferred ruling on the motion for summary judgment until
NSA might submit a more detailed affidavit in camera. NSA thereafter submitted
a thirty-six page document, classified "Top Secret," which is the affidavit of
Mr. Roy R. Banner, Chief of the Policy Staff for NSA.
NSA contends that all sixteen documents are exempt from disclosure in their
entirety under Exemption 3, which provides that
This section (requiring disclosure) does not apply to matters that are:
specifically exempted from disclosure by statute . . . 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. 5 U.S.C. s 552(b)(3).
The collateral statute upon which NSA relies is P.L. 86-36, section 6,
nothing in this Act or any law . . . shall be construed to require the
disclosure of the organization or any function of the National Security Agency,
or any information with respect to the activities thereof, or of names, titles,
salaries, or number of persons employed by such agency. 50 U.S.C. s 402
In its remand, the Court of Appeals upheld this Court's conclusion that
section 6 provides authority for Exemption 3 withholding of documents falling
within its provisions.
(1) The documents at issue comprise material that is "the direct product of
communications intelligence activities." Banner Public Affidavit, P 14. Even
though the contents of the documents may not be sensitive, what their
disclosure would reveal about agency functions not now publicly known compels
nondisclosure. The Boardman affidavit submitted in camera establishes
conclusively that the "functions" and "activities" of NSA that might be
revealed, P.L. 86-36, s 6, include signals intelligence sources and methods
still in active use, sources that are unique to the signals intelligence
community and not a matter of public knowledge. The in camera affidavit,
moreover, demonstrates how disclosure would reveal the processing capabilities
of the Agency. Such internal operations of NSA fall within the protection of
section 6, which precludes the disclosure of any information concerning the
"organization" of NSA.
(2) The second issue raised by the Court of Appeals' remand is the adequacy
of the Agency's search for other responsive documents. The Court is satisfied
that NSA has fully explained the apparent incongruity between its mission to
collection information on particular subjects and its inability to retrieve
such information once gathered. NSA has, in detailed fashion, explained how it
indexes signals intelligence materials and why it could not locate the
requested documents until provided with identifying serial numbers by the CIA.
Although plaintiff calls into issue certain facts regarding the Agency's
capability in retrieving information, a thorough reading of the entire record,
including the in camera submission, demonstrates that these facts are not
material. Any more public disclosure of the internal procedures of NSA and of
the identity of the information at issue would compromise the secrecy required
by section 6 of P.L. 86-36 to protect intelligence methods, sources, and
For the reasons set forth above, and it appearing to the Court that there are
no genuine issues as to material facts in this *953 case, defendant's motion
for summary judgment is granted.