OPERATION CLAMBAKE: SCIENTOLOGY COURT FILES

Part of a public library containing court papers related to lawsuits involving Scientology in some way. Collected to help lawyers and critics of Scientology in future lawsuits from or against this cult. Please report back if this has been of help, or send new contributions to the collection. Thanks. Andreas Heldal-Lund (heldal@online.no)




    The FOUNDING CHURCH OF SCIENTOLOGY OF WASHINGTON, D. C., INC., Appellant,
                                       v.
                         NATIONAL SECURITY AGENCY et al.
                                  No. 77-1975.
                         United States Court of Appeals,
                          District of Columbia Circuit.
                             Argued March 27, 1978.
                              Decided May 15, 1979.
  A church brought suit against the National Security Agency, alleging that it
 improperly refused to release documents requested by the church under the
 Freedom of Information Act. The United States District Court for the District
 of Columbia, 434 F.Supp. 632, John Lewis Smith, Jr., J., entered summary
 judgment in favor of the NSA, and the church appealed. The Court of Appeals,
 Spottswood W. Robinson, III, Circuit Judge, held that the NSA had failed to
 establish its entitlement to a summary disposition of the litigation.
  Reversed and remanded for additional proceedings.

 [1] RECORDS
 Statute stating that no law shall be construed to require disclosure of
 organization or function of National Security Agency or of any information with
 respect to its activities or names, titles, salaries or number of persons
 employed by it was statute which qualified under exemption of Freedom of
 Information Act for information "specifically exempted from disclosure by
 statute."  5 U.S.C.A. s 552(b)(3), (b)(3)(A, B);  5 U.S.C. (1958 Ed.) s
 654;  Federal Aviation Act of 1958, s 1104, 49 U.S.C.A. s 1504;  National
 Security Act of 1947, ss 6, 102(d)(3) as amended 49 U.S.C.A. ss 402
 note, 403(d)(3);  Central Intelligence Agency Act of 1949, s 7, 50
 U.S.C.A. s 403g.
 See publication Words and Phrases for other judicial constructions and
 definitions.

 [2] FEDERAL CIVIL PROCEDURE
 Affidavit of information officer of National Security Agency, submitted in suit
 under Freedom of Information Act to support NSA's position that its records
 sought by church were exempt from disclosure under Act, was too conclusory to
 support trial court's action in entering summary judgment for NSA where it
 furnished little that would enable determination as to whether materials
 withheld actually bore on Agency's organization, functions or faculty for
 intelligence operations and, instead, merely stated that compliance with
 church's demand would reveal "certain functions and activities" protected from
 mandatory disclosure by statute and would "jeopardize national security
 functions the Agency was established to perform."  5 U.S.C.A. s
 552(a)(4)(B), (b)(1, 3), (b)(7)(E).

 [3] FEDERAL CIVIL PROCEDURE
 National Security Agency, as defendant in suit by church under Freedom of
 Information Act to require production of records concerning NSA's alleged
 investigation of church, failed to establish absence of triable issues of fact
 on issue whether searches which it made of its files were adequate to support
 its statement that other materials sought by church were unavailable.  5
 U.S.C.A. ss 552, 552(b)(3);  28 U.S.C.A. s 2106;  National Security Act
 of 1947, s 6 as amended 50 U.S.C.A. s 402 note;  Fed.Rules Civ.Proc.
 Rule 60(b), 28 U.S.C.A.
  *824 **305 Appeal from the United States District Court for the District
 of Columbia (D.C. Civil Action No. 76-1494).
  William A. Dobrovir, Washington, D. C., for appellant.
  Michael F. Hertz, Atty., Dept. of Justice, Washington, D. C., with whom Earl
 J. Silbert, U. S. Atty., Barbara Allen Babcock, Asst. Atty. Gen., and Robert E.
 Kopp, Atty., Dept. of Justice, Washington, D. C., were on the brief, for
 appellee. Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., also
 entered an appearance for appellee.

  *825 **306 Before TAMM and ROBINSON, Circuit Judges, and OBERDORFER,[FN*]
 United States District Judge, United States District Court for the District of
 Columbia.

      FN* Sitting by designation pursuant to 28 U.S.C. s 292(a) (1976).

  Opinion for the Court filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.

  SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
  The Founding Church of Scientology of Washington, D.C., Inc., the appellant,
 complained in the District Court of the refusal of the National Security
 Agency (NSA), the appellee, to release documents requested by appellant under
 the Freedom of Information Act.[FN1] The court, relying upon an affidavit
 submitted by the agency, ruled that the materials solicited were protected from
 disclosure by joint operation of Exemption 3 of the Act [FN2] and Section 6
 of Public Law No. 86-36,[FN3] and granted summary judgment in favor of NSA.
 [FN4] We find that NSA failed to establish its entitlement to a summary
 disposition of the litigation. Accordingly, we reverse the judgment appealed
 from and remand the case for additional proceedings before the District Court.

      FN1. Pub.L.No.89-487, 80 Stat. 251 (1966), codified by Pub.L. No.90-23, 81
     Stat. 55 (1967), as amended by Government in the Sunshine Act, Pub.L. No.
     94-409, s 5(b)(3), 90 Stat. 1247 (1976), codified at 5 U.S.C. s
     552 (1976) (hereinafter cited as codified).

      FN2. 5 U.S.C. s 552(b)(3) (1976).

      FN3. Pub.L.No.86-36, s 6, 73 Stat. 63 (1959), codified at 50
     U.S.C. s 402 note (1976), quoted in text Infra at note 25.

      FN4. Founding Church of Scientology v. NSA, 434 F.Supp. 632
     (D.D.C.1977).

                                          I
  NSA was created by order of the President in 1952 [FN5] and endowed with a
 twofold mission. Its first major task is shielding the Nation's coded
 communications from interception by foreign governments. Its second principal
 function, implicated by appellant's document request, entails acquisition of
 information from electromagnetic signals and distillation of that information
 for assimilation by the intelligence community and national policymakers. As a
 part of the latter activity, NSA surreptitiously intercepts international
 communications by a variety of means.

      FN5. Memorandum from President Harry S. Truman to the Secretary of State
     and the Secretary of Defense, "Communications Intelligence Activities"
     (Oct. 24, 1952). See S.Rep.No.755, 94th Cong., 2d Sess. 736 (1976). NSA is
     a separately organized agency within the Department of Defense, and is
     controlled by the Secretary of Defense.

  In December, 1974, appellant sought access, pursuant to the Freedom of
 Information Act, to all records maintained by the Agency on appellant and the
 philosophy it espouses, as well as records reflecting dissemination of
 information about appellant to domestic agencies or foreign governments.
 Subsequently, appellant's request was enlarged to embrace all references
 touching on L. Ron Hubbard, founder of the doctrine of Scientology. NSA's reply
 was that it had not established any file pertaining either to appellant or
 Hubbard, and that it had transmitted no information regarding either to the
 entities specified in the demand. In March, 1975, appellant enumerated other
 Scientology organizations with respect to which pertinent records might exist.
 NSA again denied possession of any of the data sought.
  In the course of Freedom of Information Act proceedings against the Department
 of State and the Central Intelligence Agency (CIA), appellant learned that NSA
 had at least sixteen documents concerning Scientology, appellant and related
 organizations. So advised, and armed with details solicited from CIA, NSA
 succeeded in locating fifteen of those items in warehouse storage, and obtained
 a copy of the sixteenth from CIA. Release of these materials was resisted,
 however, on grounds that they were protected from disclosure by provisos of the
 *826 **307 Act relating to national security matters [FN6] and to
 confidentiality specifically imparted by other statutes.[FN7]

      FN6. Exemption 1, 5 U.S.C. s 553(b)(1) (1976), immunizes from
     compulsory disclosure information that is
     (A) specifically authorized under criteria established by an Executive
     order to be kept secret in the interest of national defense or foreign
     policy and (B) are in fact properly classified pursuant to such Executive
     order(.)
     As the District Court did not predicate the summary judgment on this
     exemption, we do not consider its applicability here. See text Infra at
     notes 9-10.

      FN7. Exemption 3, 5 U.S.C. s 552(b)(3) (1976), quoted in text Infra at
     note 19.

  In August, 1976, appellant commenced suit in the District Court to compel NSA
 to conduct a renewed search of its files and to enjoin any withholding of the
 materials desired. Appellant served numerous interrogatories on NSA inquiring
 into its efforts to locate responsive records, its classification of documents,
 and its correspondence with CIA with respect to the items theretofore
 uncovered. Purportedly to avoid revelation of functions and activities
 assertedly insulated by the Act from public scrutiny,[FN8] NSA declined to
 supply more than minimal information in answer to the interrogatories.

      FN8. See notes 6-7 Supra.

  Then, invoking Public Law No. 86-36 [FN9] and Exemption 3 [FN10] exclusively,
 NSA moved for dismissal of the action or alternatively for summary judgment in
 its favor. In support of the motion, NSA tendered the affidavit of Norman
 Boardman, its information officer, and offered to furnish a more detailed but
 classified affidavit for In camera inspection. Appellant vigorously opposed any
 Ex parte submission and sought more extensive public airing of the issues. The
 District Court was of the view that Section 6 of Public Law No. 86-36 was an
 Exemption 3 statute foreclosing compulsory release of the sought-after data.
 [FN11] In that light, and on the basis of Boardman's public affidavit, the
 court ordered summary judgment for NSA.[FN12] From that action, this appeal was
 taken.

      FN9. Quoted in text Infra at note 25. Initially, NSA also advanced 18
     U.S.C. s 798 (1976) and 50 U.S.C. s 403(d)(3) (1976) as Exemption 3
     statutes. For a discussion of these provisions in the context of litigation
     against NSA, see Baez v. NSA, 76-1921 (D.D.C. April 7, 1978). NSA's summary
     judgment motion and the District Court's decision, however, rested only on
     Pub.L. No. 86-36. We limit our consideration accordingly.

      FN10. Quoted in text Infra at p. note 19.

      FN11. Founding Church of Scientology v. NSA, supra note 4, 434 F.Supp.
     at 633.

      FN12. Id.

                                         II
  Appellant begins with a challenge to the District Court's holding that the
 sixteen documents admittedly retained by NSA enjoy a protected status.[FN13]
 Appellant then complains of the court's failure to probe more thoroughly NSA's
 protestations respecting possession of other relevant material.[FN14] In
 pressing the first point, appellant concedes that Section 6 of Public Law
 No. 86-36 is a law bringing Exemption 3 into play but claims inadequacies in
 the agency's showing, upon which the District Court awarded summary judgment.
 More particularly, appellant contends that the Boardman affidavit lacked
 sufficient detail to enable an informed determination as to whether disclosure
 of any or all of the sixteen items would illuminate agency activities of which
 the public was not already aware. We, too, believe that Section 6 is an
 Exemption 3 statute and that NSA's affidavit did not furnish a satisfactory
 basis for testing the exemption's applicability to the data appellant seeks.

      FN13. See text Supra at note 6.

      FN14. Discussed in Part III Infra.

                                          A
  [1] As originally enacted, Exemption 3 authorized the withholding of
 information "specifically exempted from disclosure by statute." [FN15] The
 exemption was amended in *827 **308 1976, however, "to overrule (a)
 decision of the Supreme Court" [FN16] which had sanctioned rejection of a
 records request on grounds that nondivulgence was authorized by a statute
 conferring a "broad degree of discretion" [FN17] on an agency to conceal data
 "in the interest of the public." [FN18] Under the exemption as amended,
 materials are deemed "specifically exempted from disclosure by statute" only if
 the "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." [FN19] Subsection (A) reaches only those laws that mandate
 confidentiality "absolute(ly) and without exception"; [FN20] it condones no
 decisionmaking at the agency level.[FN21] Subsection (B), on the other hand,
 does contemplate some exercise of administrative discretion in closely
 circumscribed situations, "but its unmistakeable thrust . . . is to assure that
 basic policy decisions on governmental secrecy be made by the Legislative
 rather than the Executive branch." [FN22]

      FN15. 5 U.S.C. s 552(b)(3) (1976).

      FN16. H.R.Rep.No.1441, 94th Cong., 2d Sess. 14 (1976) (conference report),
     referring to Administrator v. Robertson, 422 U.S. 255, 95 S.Ct. 2140, 45
     L.Ed.2d 164 (1975).

      FN17. Administrator v. Robertson, supra note 16, 422 U.S. at 266, 95
     S.Ct. at 2148, 45 L.Ed.2d at 174.

      FN18. 49 U.S.C. s 1504 (1976), providing that, upon objection of any
     person, agency officials "shall order such information withheld from public
     disclosure when, in their judgment, a disclosure of such information would
     adversely affect the interests of such person and is not required in the
     interest of the public."

      FN19. 5 U.S.C. s 552(b)(3) (1976).

      FN20. 122 Cong.Rec. H9260 (daily ed. Aug. 31, 1976) (remarks of
     Representative Abzug).

      FN21. American Jewish Congress v. Kreps, 187 U.S.App.D.C. 413, 415 &
     n.33, 574 F.2d 624, 626 & n.33 (1978) (discussing legislative history).

      FN22. Id. at 417, 574 F.2d at 628 (footnote omitted).

  The provision on which NSA relies to trigger Exemption 3 into operation is
 Section 6 of Public Law No. 86-36, which states that with exceptions
 inapplicable in this case
   nothing in this Act [FN23] or any other law (including, but not limited to,
 the (Classification Act of 1949)) [FN24] shall be construed to require the
 disclosure of the organization or any function of the National Security Agency,
 of any information with respect to the activities thereof, or of names, titles,
 salaries, or number of the persons employed by such agency.[FN25]

      FN23. Pub.L.No.86-36, 73 Stat. 63 (1959) ("(t)o provide certain
     administrative authorities for the National Security Agency"), as amended,
     50 U.S.C. s 402 note (1976).

      FN24. 5 U.S.C. s 654 (1958), repealed by Pub.L.No.86-626, 74 Stat. 427
     (1960).

      FN25. Pub.L.No.86-36, s 6, 73 Stat. 64 (1959), in 50 U.S.C. s 402
     note (1976).

  Plainly, Section 6 insulates the information specified from mandatory
 divulgence though it does not purport to bar voluntary disclosure by NSA
 itself. Since it countenances administrative discretion to publicize or
 maintain secrecy, Section 6 lacks the rigor demanded by Subsection (A) of
 Exemption 3. But appellant acknowledges, and the District Court ruled,[FN26]
 that, within the meaning of Subsection (B), Section 6 "refers to particular
 types of matters to be withheld." [FN27] More specifically, in material part
 the provision protects information laying open "the organization or any
 function of the National Security Agency, . . . (or) the activities thereof."
 [FN28]

      FN26. Founding Church of Scientology v. NSA, supra note 4, 434 F.Supp.
     at 633.

      FN27. See text Supra at note 19. Concurring in this view are Baez v.
     NSA, supra note 9; Kruh v. GSA, 421 F.Supp. 965, 967-968
     (E.D.N.Y.1976).

      FN28. See text Supra at note 25.

  Our examination of Section 6 and its legislative history confirms the view
 that it manifests a "congressional appreciation of the dangers inherent in
 airing particular *828 **309 data," [FN29] and thus satisfies the
 strictures of Subsection (B). The section was enacted at the request of the
 Department of Defense.[FN30] The Department's immediate aim was termination of
 personnel oversight by the Civil Service Commission, which would subject highly
 sensitive agency activities to inspection.[FN31] Exclusion from the
 Classification Act, [FN32] administered by the Civil Service Commission, was
 thought to be "consistent with the treatment . . . accorded other agencies
 engaged in specialized or highly classified defense activities." [FN33] The
 purpose and scope of the bill proposed was broader, however, for, as the
 Department explained, "(t)he unique and highly sensitive activities of the
 Agency require extreme security measures." [FN34] Accordingly, the bill
 incorporated provisions "exempting the Agency from statutory requirements
 involving disclosures of organizational . . . matters which should be protected
 in the interest of national defense." [FN35]

      FN29. American Jewish Congress v. Kreps, supra note 21, 187
     U.S.App.D.C. at 417, 574 F.2d at 628.

      FN30. Letter from Donald A. Quarles, Acting Secretary of Defense, to
     Richard M. Nixon, President of the Senate (Jan. 2, 1959), included in
     S.Rep.No.284, 86th Cong., 1st Sess. 2-3 (1959).

      FN31. Id. at 3 (letter).

      FN32. See note 24 Supra.

      FN33. S.Rep.No.284, Supra note 30, at 3 (letter); see Id. at 2 (text
     of report).

      FN34. Id. at 3 (letter).

      FN35. Id. (letter).

  The Senate report focused on relieving NSA from the requirements of the
 Classification Act.[FN36] But it also echoed the Department's concern over
 publicity of NSA's "very highly classified functions vital to the national
 security." [FN37] The statutory language similarly evinces a purpose to shield
 the matters enumerated from indiscriminate public consumption. Section 6
 ordains unequivocally that "nothing in this Act or any other law (including,
 but not limited to, the (Classification Act)) shall be construed to
 require . . . disclosure." [FN38]

      FN36. Id. at 1-2 (text of report).

      FN37. Id. at 1 (text of report).

      FN38. See text Supra at note 25.

  Thus, Section 6 embodies far more than "a vague apprehension that (the)
 Agency might someday fall heir to sensitive information." [FN39] It reflects
 instead a congressional judgment that, in order to preserve national security,
 information elucidating the subjects specified ought to be safe from forced
 exposure. The basic policy choice was made by Congress, not entrusted to
 administrative discretion in the first instance. It follows that Section 6
 is a statute qualifying under Exemption 3.[FN40]

      FN39. American Jewish Congress v. Kreps, supra note 21, 187
     U.S.App.D.C. at 417, 574 F.2d at 628.

      FN40. Accord, Baez v. NSA, supra note 9; Kruh v. GSA, supra note 27,
     421 F.Supp. at 967-968.

  Even the most casual reading of Section 6 suggests, however, a potential
 for unduly broad construction. On the one hand, the section embraces personnel
 matters of a fairly restricted character and susceptible of little
 interpretation.[FN41] Literal application of those terms might expectably honor
 the congressional policy underlying Section 6 without doing violence to the
 Freedom of Information Act's "overwhelming emphasis upon disclosure." [FN42] On
 the other hand, *829 **310 Section 6 encompasses "any information with
 respect to the Activities " of NSA,[FN43] and that implicates superficially the
 gamut of agency affairs. To be sure, the legislation's scope must be broad in
 light of the agency's highly delicate mission. But a term so elastic as
 "activities" should be construed with sensitivity to the "hazard(s) that
 Congress foresaw." [FN44] As we have observed in an analogous context, "(t)o
 fulfill Congress' intent to close the loophole created in Robertson,[FN45]
 courts must be particularly careful when scrutinizing claims of exemptions
 based on such expansive terms." [FN46]

      FN41. "(N)ames, titles, salaries, or number of the persons employed by
     (the) agency." See text Supra at note 25.

      FN42. Vaughn v. Rosen, 157 U.S.App.D.C. 340, 343, 484 F.2d 820, 823
     (1973), Cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873
     (1974). Compare Baker v. CIA, 188 U.S.App.D.C. 401, 580 F.2d 664 (1978),
     in which we construed literally s 7 of the Central Intelligence Agency Act
     of 1949, ch. 227, s 7, 63 Stat. 211 (1949), codified at 50 U.S.C. s
     403g (1970), which exempted "from the provisions of section 654 of Title
     5, and the provisions of any other law which requires the publication or
     disclosure of the organization, functions, names, official titles,
     salaries, or numbers of personnel employed by the Agency . . . ." We noted,
     however, that to require that sought-after personnel material be in fact
     linked with intelligence, security, sources or methods would render s
     403g "mere surplusage, since such a showing would necessarily bring the
     requested information within the purview of s 403(d)(3) (see note 46
     Infra ) and thereby immunize it from disclosure without the need for a
     separate statutory exemption." Baker v. CIA, supra, 188 U.S.App.D.C. at
     405, 580 F.2d at 668. We observed, too, that "section 403g creates a
     very narrow and explicit exception to the requirements of the" Freedom of
     Information Act. Id. 188 U.S.App.D.C. at 407, 580 F.2d at 670.

      FN43. See text Supra at note 25.

      FN44. American Jewish Congress v. Kreps, supra note 21, 187
     U.S.App.D.C. at 418, 574 F.2d at 629.

      FN45. See note 16 Supra and accompanying text.

      FN46. Ray v. Turner, 190 U.S.App.D.C. 290, 323, 587 F.2d 1187, 1220
     (D.C.Cir. 1978) (concurring opinion). We spoke there of 50 U.S.C. s
     403(d)(3) (1976), which instructs the Director of the Central Intelligence
     Agency to protect "intelligence sources and methods from unauthorized
     disclosure." We observed that, "while the 'particular types of matters'
     listed in Section 403g (E. g., names, official titles, salaries) are
     fairly specific, Section 403(d)(3)'s language of protecting
     'intelligence sources and methods' is potentially quite expansive."
     It may be that Congress intended to confer no greater protection to NSA's
     "activities" by enacting Pub.L.No.86-36 than it did to CIA by complementary
     operation of ss 403g and 403(d)(3). See Baez v. NSA, supra note 9.
     The Senate Report discussing Pub.L.No.86-36 likened the secrecy afforded
     NSA to that allowed other intelligence agencies exempted from the
     Classification Act, which would include CIA. See S.Rep.No.284, Supra
     note 30, at 2 ("(s)uch exemption would be consistent with legislation in
     effect with respect to other agencies similarly engaged in highly
     classified defense activities"). As NSA's defense in the instant case is
     avowedly directed at safeguarding intelligence sources and methods, see
     text Infra at notes 47-48, we need not consider whether the term
     "activities" in Pub.L.No.86-36 might conceivably shield any more than that.

  NSA has not based its repulsion of appellant's informational request upon an
 illusory need to safeguard "secrets" either familiar to all or unrelated to its
 operational modes. In the agency's words, its "claim . . . . is not made with
 respect to its general functions or activities"; [FN47] it seeks instead to
 halt any divulgence of "information in such detail so as to let potential
 adversaries know which specific communications circuits are not secure, and
 which communications, depending on the circuits through which they were
 transmitted, the Agency is likely to possess or not possess." [FN48] That
 position, if substantiated, would undercut appellant's reliance on the Senate's
 far-ranging disclosure of NSA's operations in the course of recent
 investigations of gross illegalities on the part of intelligence agencies,
 [FN49] for the Senate inquiries seemingly stopped short of revealing specifics
 about the agency's intelligence capabilities,[FN50] which still warrant
 stringent *830 **311 protection from compulsory exposure. With this
 background, then, we proceed to examine whether the District Court adequately
 undertook to adjudicate the applicability of Section 6 to the materials
 appellant seeks.

      FN47. Brief for Appellees at 14.

      FN48. Id. at 13 n.5; see Id. at 12-13.

      FN49. See Final Report of the Select Comm. to Study Governmental
     Operations with Respect to Intelligence Activities, S.Rep.No.755, 94th
     Cong., 2d Sess. (1976) (especially Book III, at 733-786). Although NSA
     would have no protectable interest in suppressing information simply
     because its release might uncloak an illegal operation, it may properly
     withhold records gathered illegally if divulgence would reveal currently
     viable information channels, albeit ones that were abused in the past.
     Compare Halkin v. Helms, 194 U.S.App.D.C. 82, 90-91, 598 F.2d 1, 9-10
     (D.C.Cir. 1978). Of course, every effort should be made to segregate for
     ultimate disclosure aspects of the records that would not implicate
     legitimate intelligence operations, however embarrassing to the agency.

      FN50. See S.Rep.No.755, Supra note 49, Book III, at 735-736 ("(t)he
     Committee recognizes that NSA's vast Technological capability is a
     sensitive national asset which ought to be zealously protected for its
     value to our common defense" (emphasis supplied)); Id. at 736-783. See
     also Hearings Before the Select Comm. to Study Governmental Operations with
     Respect to Intelligence Activities, 94th Cong., 1st Sess. 36, Vol. 5
     (1975) (remarks of Senator Church, Chairman) ("(t)o make sure this
     Committee does not interfere with ongoing intelligence activities, we have
     had to be exceedingly careful for the Techniques of the NSA are of the most
     sensitive and fragile character" (emphasis supplied)). Compare Halkin v.
     Helms, supra note 49, 194 U.S.App.D.C. at 90-91, 598 F.2d at 9-10.

                                          B
  [2] Congress has directed that in reviewing agency rejections of Freedom of
 Information Act requests, "the court shall determine the matter de novo, and
 may examine the contents of . . . agency records in camera to determine whether
 such records or any part thereof shall be withheld under any of the exemptions
 set forth in subsection (b)." [FN51] Very importantly, "the burden is on the
 agency to sustain its action." [FN52] The legislative history of the Act
 explains that "the Government should be given the opportunity to establish by
 means of testimony or Detailed affidavit that the documents are Clearly exempt
 from disclosure," [FN53] and that the court should "accord substantial weight
 to an agency's affidavit." [FN54] But, as in the recent past we have noted,
 "conclusory and generalized allegations of exemptions" are unacceptable; [FN55]
 if the court is unable to sustain nondivulgence on the basis of affidavits, In
 camera inspection may well be in order. As Congress has declared, "in many
 situations" review of requested materials in chambers "will plainly be
 necessary and appropriate." [FN56]

      FN51. 5 U.S.C. s 552(a)(4)(B) (1976).

      FN52. Id.

      FN53. S.Rep.No.1200, 93d Cong., 2d Sess. 9 (1974), Reprinted in (1974)
     U.S.Code Cong. & Ad.News 6267, 6287 (conference report) (emphasis
     supplied). See Ray v. Turner, supra note 46, 190 U.S.App.D.C. at 303-
     305, 587 F.2d at 1210-1212 (concurring opinion); Weissman v. CIA, 184
     U.S.App.D.C. 117, 121-122, 565 F.2d 692, 696-697 (1977). See also EPA v.
     Mink, 410 U.S. 73, 92-93, 93 S.Ct. 827, 838-839, 35 L.Ed.2d 119, 134-136
     (1973).

      FN54. S.Rep.No.1200, Supra note 53, at 12, Reprinted In (1974) U.S.Code
     Cong. & Ad.News 6290. Though these remarks were made in the context of
     Exemption 1, they would seem equally pertinent to Exemption 3 claims
     involving national security. See Ray v. Turner, supra note 46, 190
     U.S.App.D.C. at 315, 587 F.2d at 1211; Goland v. CIA, 197 U.S.App.D.C.
     25, 49 n.64, 607 F.2d 339, 363 n.64 (D.C.Cir. 1978).

      FN55. Vaughn v. Rosen, supra note 42, 157 U.S.App.D.C. at 346, 484
     F.2d at 826. See Ray v. Turner, supra note 46, 190 U.S.App.D.C. at
     321, 587 F.2d at 1218 (concurring opinion); Goland v. CIA, supra note
     54, 197 U.S.App.D.C. at 49 n.64, 607 F.2d at 363 n.64; Brandon v.
     Eckard, 187 U.S.App.D.C. 28, 33-34, 569 F.2d 683, 688-689 (1977);
     National Cable Television Ass'n v. FCC, 156 U.S.App.D.C. 91, 98, 479
     F.2d 183, 190 (1973).

      FN56. S.Rep.No.1200, Supra note 53, at 9, Reprinted in (1974) U.S.Code
     Cong. & Ad.News 6287. See Ray v. Turner, supra note 46, 190
     U.S.App.D.C. at 311, 587 F.2d at 1208 (concurring opinion).

  We think the District Court failed in this litigation to conduct a true de
 novo review consonant with the foregoing principles, and that summary judgment
 was precipitously entered. The showing made by NSA consisted wholly in the
 public affidavit of Norman Boardman, its information officer.[FN57] Boardman
 avowed that the materials requested "were acquired in the course of conducting
 lawful signals intelligence activities," and that "(r)elease of any record or
 portion thereof would disclose information about the nature of NSA's activities
 including its functions." [FN58] He further explained:

      FN57. Joint Appendix (J.App.) 83.

      FN58. J.App. 89-90.

   I have determined that the records involved in this case and specific informa
 *831 tion **312 about those records such as numbers, dates, and type of
 information contained therein cannot be disclosed, because to do so would
 jeopardize national security functions the Agency was established to
 perform. . . . Disclosure of specific information which may be related to a
 specific individual or organization . . . in the context of (the agency's)
 singular mission would reveal certain functions and activities of the NSA which
 are protected from mandatory disclosure by Section 6 of Public Law 86-36.
 [FN59]

      FN59. J.App. 90.

  Boardman additionally maintained that his averments were as detailed as
 security constraints allowed:
   It is not possible to describe in a publicly filed affidavit the material in
 and dates of the documents held by NSA, because this would . . . enable a
 knowledgeable person to determine the nature of the documents . . . and thus
 disclose intelligence sources and methods . . . . In short, any further factual
 public description of material would compromise the secret nature of the
 information and would compromise intelligence sources and methods.[FN60]

      FN60. J.App. 91. The affidavit also averred that "(t)he NSA is in a
     dilemma because it is in possession of evidence which would fully justify
     the withholding of the records at issue under a statute that must be cited
     for the protection of the records, but it cannot disclose this evidence
     without revealing information which itself requires the same protection."
     On this issue, see text Infra at notes 73-77.

  In our view, the Boardman affidavit was far too conclusory to support the
 summary judgment awarded NSA. The agency acknowledged to the District Court,
 and has represented to us on appeal, that the documents in issue have been
 suppressed, not on account of their "substantive content," but because release
 to appellant would reveal "vital national security information concerning the
 organization, function and communication intelligence capabilities of the
 NSA." [FN61] But the Boardman affidavit furnishes precious little that would
 enable a determination as to whether the materials withheld actually do bear on
 the agency's organization, functions or faculty for intelligence operations.
 Rather, it merely states, without any elucidation whatever, that compliance
 with appellant's demand would reveal "certain functions and activities . . .
 protected from mandatory disclosure by Section 6," [FN62] and would
 "jeopardize national security functions the agency was established to
 perform." [FN63] Barren assertions that an exempting statute has been met
 cannot suffice to establish that fact,[FN64] yet one will search the Boardman
 affidavit in vain for anything more.

      FN61. Memorandum in Support of Defendants' Motion to Dismiss or, in the
     Alternative, for Summary Judgment, at 9 n.5, Record on Appeal (docket entry
     12).

      FN62. See text Supra at note 59.

      FN63. See text Supra at note 59.

      FN64. See note 55 Supra and accompanying text.

  Not only does the Boardman statement fail to indicate even in the slightest
 How agency functions might be unveiled, but it also lacks so much as guarded
 specificity as to the "certain functions and activities" [FN65] that might be
 revealed. From aught that appears, the sixteen documents may implicate aspects
 of the agency's operations already *832 **313 well publicized.[FN66]
 Suppression of information of that sort would frustrate the pressing policies
 of the Act without even arguably advancing countervailing considerations.[FN67]

      FN65. See text Supra at note 59. In contrast, an affidavit supplied by
     the Central Intelligence Agency in Goland v. CIA, supra note 54,
     indicated that the substantive content of withheld information pertained to
     protected matters, and was sufficiently detailed to support their
     nondisclosure pursuant to Exemption 3:
     (T)he deleted portions of the (requested document) contain detailed
     descriptions of (1) "intelligence collection and operational devices . . .
     still utilized"; (2) "methods of procurement and supply . . . unique to the
     Intelligence Community" which "are currently utilized"; (3) "basic concepts
     of intelligence methodology" of which "the essential elements remain
     viable"; (4) specific clandestine intelligence operations," including the "
     names (of) the foreign countries involved"; and (5) "certain intelligence
     methodologies of a friendly foreign government."
     197 U.S.App.D.C. at 37, 607 F.2d at 351.

      FN66. See note 49 Supra and accompanying text.

      FN67. See Ray v. Turner, supra note 46, 190 U.S.App.D.C. at 324
     n.89, 587 F.2d at 1221 n.89 (concurring opinion); Halperin v. CIA, 446
     F.Supp. 661, 664, 666-667 (D.D.C.1978) (50 U.S.C. s 403(d)(3) (1976)
     properly invoked to protect data not compromised by prior disclosure); Cf.
     H.R.Rep.No.1380, 93d Cong., 2d Sess. 12 (1974), Reprinted in (1974) U.S.
     Code.Cong. & Ad.News, 6272 (Exemption 7(E), regarding "investigative
     techniques and procedures," 5 U.S.C. s 552(b) (7)(E) (1976), "should not
     be interpreted to include routine techniques and procedures already well
     known to the public"); 120 Cong.Rec. 17034 (1974) (remarks of Senator
     Hart) (protection of investigative techniques and procedures applicable
     when "such techniques and procedures are not generally known outside the
     Government"). See also 120 Cong.Rec. 36626 (1974) (remarks of
     Representative Reid) ("(t)he courts, in my view, have a duty to look behind
     any claim of exemption, which all too often in the past has been used to
     cover up inefficiency or embarrassment even in foreign policy matters
     which, many times, are fully known by other countries but not printable in
     our own supposedly the most democratic and most open in the world").

  Before this court, NSA has endeavored to remedy the deficiencies of its
 presentation in the District Court. As we have noted, the agency has identified
 as the subject of its concern the publication of information in such detail
 that its interception capabilities with respect to particular communications
 circuits might be exposed.[FN68] Were NSA able to establish its claim in that
 regard, immunization by Section 6 at least to that extent would be assured.
 [FN69] But the appropriate occasion for such an undertaking was during the
 proceedings before the District Court, in the context of de novo consideration
 of appellant's demand.[FN70]

      FN68. See text Supra at note 48.

      FN69. Partial disclosure still might be possible if the compromising
     sections of the requested documents were susceptible of deletion. See 5
     U.S.C. s 552(b) (1976); Ray v. Turner, supra note 46, 190
     U.S.App.D.C. at 293 & n.7, 587 F.2d at 1190 & n.7 (concurring opinion);
     Irons v. Gottschalk, 179 U.S.App.D.C. 37, 41, 548 F.2d 992, 996 (1976),
     Cert. denied, 434 U.S. 965, 98 S.Ct. 505, 54 L.Ed.2d 451 (1977);
     Vaughn v. Rosen, supra note 42, 157 U.S.App.D.C. at 343-345, 484 F.2d
     at 823-825. Significantly, NSA indicated in response to interrogatories
     that no review had been made to identify segregable elements of the
     records. J.App. 48.

      FN70. See text Supra at notes 51-56.

  Aside from their bearing on the substantive decision ultimately to be made,
 NSA's averments on appeal have significant ramifications for the conduct of the
 litigation. In particular, they compellingly evince the feasibility of further
 elaboration of the agency's public affidavit. We acknowledge, of course, that
 public explanations of a determination to withhold need not "contain factual
 descriptions that . . . would compromise the secret nature of the
 information," [FN71] but we see no reason why NSA's open and informative
 representations to this court could not have been encouched in the initial
 affidavit.[FN72] And we suspect that the public record can be developed further
 still without untoward risk to the agency's statutory mission were it to
 exercise sufficient ingenuity.

      FN71. Vaughn v. Rosen, supra note 42, 157 U.S.App.D.C. at 346, 484
     F.2d at 826.

      FN72. At oral argument, counsel for NSA suggested that the agency must
     necessarily be vague until it learns precisely what the requester's
     arguments will be when the agency can sharpen its claim accordingly. At
     most, this position buttresses the need for supplementation of conclusory
     affidavits during the course of trial-court proceedings; it certainly does
     not justify a prompting of unnecessary appeals and consequent remands. In
     any event, we firmly reject the notion that an agency should advance just
     so much as it deems essential to establish the applicability of a claimed
     exemption when it is able, without endangering activity that should remain
     secret, to supply publicly further details that well might aid the de novo
     determination on disclosability or nondisclosability of the desired
     documents. The one argument an agency may confidently anticipate is lack of
     specificity in its supporting papers.

  The importance of maximizing adversary procedures in suits such as this cannot
 be *833 **314 gainsaid.[FN73] Participation of the information-requesters
 to the fullest extent feasible is essential to the efficacy of de novo re-
 examination of the agency's action.[FN74] Not insignificantly, the parties and
 the court, if sufficiently informed, may discern a means of liberating withheld
 documents without compromising the agency's legitimate interests. To that end,
 discovery may be employed to develop more fully the basis of nondisclosure or
 the lack of it.[FN75] As we have also said, "(t)he court may . . . require the
 agency to submit under protective seal affidavits that are more detailed than
 those made available to the plaintiff," [FN76] and after scrutiny thereof "the
 court may order release of any portions of these In camera affidavits that it
 determines will present no danger of unauthorized disclosure." [FN77] These
 salutary devices were abruptly aborted in the case at bar by unquestioning
 reliance upon the conclusory Boardman affidavit.

      FN73. See Ray v. Turner, supra note 46, 190 U.S.App.D.C. at 307,
     314-316, 587 F.2d at 1204, 1210-1212 (concurring opinion); Phillippi v.
     CIA, 178 U.S.App.D.C. 243, 247, 546 F.2d 1009, 1013 (1976); Vaughn v.
     Rosen, supra note 42, 157 U.S.App.D.C. at 344-345, 484 F.2d at 824-825.

      FN74. See 120 Cong.Rec. 17019 (1974) (remarks of Senator Kennedy) (ex
     parte showing by agency should occur only "where the court determines that
     involvement of plaintiff's counsel in that aspect of the case would itself
     pose a threat to national security"). Compare Halkin v. Helms, supra
     note 49, 194 U.S.App.D.C., at 88 & n.5, 598 F.2d at 7 & n.5.

      FN75. See Ray v. Turner, supra note 46, 190 U.S.App.D.C. at 321
     n.81, 587 F.2d at 1218 n.81 ("(i)nterrogatories and depositions are
     especially important in a case where one party has an effective monopoly on
     the relevant information").

      FN76. Ray v. Turner, supra note 46, 190 U.S.App.D.C. at 321 n.61,
     587 F.2d at 1218 n.61. See Phillippi v. CIA, supra note 75, 178
     U.S.App.D.C. at 247, 546 F.2d at 1013. Compare Halkin v. Helms, supra
     note 49, 194 U.S.App.D.C. at 90, 598 F.2d at 9.

      FN77. Ray v. Turner, supra note 46, 190 U.S.App.D.C. at 321 n.61,
     587 F.2d at 1218 n.61.

  It is much too soon to tell whether NSA can establish its claims by more
 detailed public or classified affidavits, or whether In camera review of the
 controverted documents themselves will become essential to the resolution
 proper.[FN78] What is clear, however, is that the Boardman affidavit was
 inadequate to discharge the burden firmly placed by Congress on agencies that
 would withhold records in the face of proper Freedom of Information Act
 requests.[FN79] Indeed, the District Court's uncritical acceptance of the
 affidavit deprived appellant of the full de novo consideration of its records-
 request to which it is statutorily entitled.[FN80] Insofar as the sixteen
 documents admittedly withheld are concerned, this litigation must return to the
 District Court.

      FN78. See Id. at 311-315, 587 F.2d at 1208-1212; text Supra at notes
     52-56.

      FN79. See text Supra at notes 52-56.

      FN80. The District Court's failure to take the " 'hard look' necessary to
     assure adherence to congressional purpose," Ray v. Turner, supra note
     46, 190 U.S.App.D.C., at 323, 587 F.2d at 1220, is apparent from its
     opinion. Noting simply that "Mr. Boardman insists that '(r)elease of any
     record or portion thereof would disclose information about the nature of
     NSA's activities including its functions,' " and that Pub.L.No.86-36 is an
     Exemption 3 statute, the District Court entered summary judgment for NSA
     without further ado. Founding Church of Scientology v. NSA, supra note
     4, 434 F.Supp. at 633.

                                         III
  [3] Appellant raises a second issue on this appeal. It concerns NSA's
 claimed inability to locate pertinent documents in addition to the sixteen it
 is known to now have in hand. More precisely, appellant argues that under the
 circumstances the agency's single affidavit and limited interrogatories-
 responses claiming thoroughness in its searches did not suffice to meet its
 burden in that regard; additional discovery was imperative, we are told, to
 ensure that all relevant records have been unearthed. We agree that NSA did not
 demonstrate the *834 **315 unavailability of other materials sufficiently
 to entitle it to summary judgment.
  Appellant's first request, made in December, 1974, extended to all documents
 bearing on its activities and on transmission of information about appellant to
 other agencies, governments and individuals. That demand was soon broadened to
 include items relating to appellant's founder. In January, 1975, NSA informed
 appellant that it had neither established a file or record on these subjects
 nor passed on any information of either sort. This response, according to the
 Boardman affidavit, was largely "based on negative results of searches
 conducted at my request by the NSA organizations having files that may
 reasonably have contained information or records of the kinds requested."
 [FN81] On five subsequent occasions appellant specified additional subjects and
 submitted further details that might aid in locating pertinent materials. In
 each instance, Boardman reported, agency units "that could be reasonably
 expected to contain records of the kind described" were instructed to search
 their files,[FN82] and supposedly "thorough searches" repeatedly failed to
 ferret out data of the kind demanded.[FN83]

      FN81. J.App. 85.

      FN82. J.App. 85, 87-88. On one other occasion, NSA was advised that
     appellant possessed a State Department airgram, dated several years
     earlier, that had been forwarded to NSA. Appellant sought clarification
     with respect to disposition of the airgram; and with information obtained
     from the Department of State the airgram was located. Boardman avows that
     "since the airgram was not directly required in the conduct of NSA
     business, it was not located in any operational file where a reasonable
     search . . . might have located it." J.App. 86. It seems ironic that a
     document more likely to be releasable because of unimportance to "NSA
     business" is one that probably will not be found during a "reasonable"
     search. Indeed, it raises some question, to say the least, about the
     agency's understanding of "reasonableness."

      FN83. J.App. 86-88.

  Subsequently, appellant learned in the course of discovery in a Freedom of
 Information Act proceeding against the Department of State and the Central
 Intelligence Agency that sixteen documents encompassed by appellant's request
 had been provided to CIA by NSA and that NSA had advised against their release.
 Once informed of that development, NSA contacted CIA to obtain identifying
 details; and an ensuing search uncovered fifteen of the sixteen which, Boardman
 said, "were found in warehouse storage, not retrievable on the basis of subject
 matter content." [FN84] NSA later obtained a copy of the sixteenth from CIA.

      FN84. J.App. 89.

  Beyond revelations affording this much light, the Boardman affidavit contained
 little else material to the processing of appellant's several requests, and
 NSA's replies to appellant's interrogatories were almost totally uninformative
 in that respect.[FN85] They do explain that searches were made by departments
 in which sought-after materials expectably might repose, and that the
 organization of the agency's files precluded retrieval on the basis of
 information furnished by appellant; and averments superficially similar did
 pass muster in the first of our recent Goland decisions.[FN86] However, the
 competence of any records-search is a matter dependent upon the circumstances
 of the case, and those appearing here give rise to substantial doubts about the
 caliber of NSA's search endeavors. More specifically, they pose the question
 whether further search procedures were available and within the agency's
 ability to utilize without expending a whit more than reasonable effort.
 Summary judgment, then, was improper because an issue of material fact
 *835 **316 the adequacy of the search was apparent on the record.[FN87]

      FN85. About the only bit of information relevant on this point is that set
     forth in text Infra at note 90.

      FN86. Goland v. CIA, supra note 54. See note 101 Infra.

      FN87. See text Infra at notes 94-100.

  The Boardman affidavit informs us that "(t)here is no central index to all of
 the Agency's files. Some files have records in alphabetical order by name,
 title, or subject matter. Other files are in chronological order; of these,
 only some, not all, have indexes by name, title, or subject matter of the
 records they contain." [FN88] In no way, however, did Boardman attempt to
 relate these characteristics of NSA's general filing system to the particular
 searches conducted for appellant. All the affidavit says, though over and over,
 is that almost always the quests were in vain,[FN89] and that, we believe, does
 not satisfactorily dispel the questions arising in the present situation. The
 fact that nothing pertinent is found on a file search might suggest, of course,
 that nothing pertinent was on file, but here there is a countervailing
 circumstance arguing powerfully the other way.

      FN88. J.App. 83-84.

      FN89. J.App. 83-91.

  Despite searches in some number, fifteen responsive documents concededly in
 NSA's possession were passed by, and but for help from another intelligence
 agency seemingly would never have come to light. NSA tells us that its
 "files . . . are oriented to subjects of foreign intelligence interests and are
 not structured to permit retrieval by subjects of the type included in
 (appellant's) Freedom of Information Act request." [FN90] NSA adds that "(t) he
 fifteen records found in warehouse storage (were) not retrievable on the basis
 of subject matter content. Only the identifying data supplied by the CIA
 enabled NSA to locate copies of the records here." [FN91] The difficulty with
 this attempted explanation is that it generates more problems than it solves.

      FN90. J.App. 42.

      FN91. J.App. 89.

  On the one hand NSA states that some of its files are indexed or
 alphabetically arranged "by name, title, or subject matter" details appellant
 supplied profusely and on the other hand it declares that its files "are not
 structured to permit retrieval by subjects of the type included in
 (appellant's) requests." And notwithstanding the latter representation, which
 would appear to immediately doom any search whatsoever for appellant, NSA
 professes to have conducted several, and to have done so "thoroughly." On a
 broader scale, since NSA's prime mission is to acquire and disseminate
 information to the intelligence community, it seems odd that it is without some
 mechanism enabling location of materials of the type appellant asked for,
 particularly with identifying details as extensive as those furnished. Even
 absent other modes of subject-matter classification, it is not at all apparent
 why NSA might not have searched on the basis of "subjects of foreign
 intelligence interests" [FN92] likely to be involved. Presumably, CIA was able
 to identify the fifteen documents on clues no different from those provided NSA
 by appellant and, in turn, to identify them for NSA; just why NSA could not
 have done that on its own is hardly evident from what NSA has offered thus far.
 [FN93] If there was no other way, just why NSA did not resort to this process
 of cross-communication with CIA with respect to other documents demanded by
 appellant is not at all clear. NSA has never claimed that the search procedures
 it employed were the only methodology *836 **317 feasible and, everything
 considered, it has not yet eliminated an unavoidable inference that its
 technique may have left something to be desired.

      FN92. See text Supra at note 90.

      FN93. The circumstances under which appellant learned of NSA's possession
     of these documents could be taken as an indication that it was not truly
     ignorant of the whereabouts of the documents. The Central Intelligence
     Agency indicated in the course of discovery in other proceedings that not
     only had it obtained these materials from NSA but also that NSA had
     admonished CIA that release should be resisted on the basis of Exemption 1.
     See Exhibit L to Complaint.

  Lest we forget, the District Court disposed of this litigation by summary
 judgment. It is well settled in Freedom of Information Act cases as in any
 others that "(s)ummary judgment may be granted only if the moving party proves
 that no substantial and material facts are in dispute and that he is entitled
 to judgment as a matter of law." [FN94] It is equally settled in federal
 procedural law that

      FN94. National Cable Television Ass'n v. FCC, supra note 55, 156
     U.S.App.D.C. at 94, 479 F.2d at 186 (footnotes omitted).

   (t)he party seeking summary judgment has the burden of showing there is no
 genuine issue of material fact, even on issues where the other party would have
 the burden of proof at trial, and even if the opponent presents no conflicting
 evidentiary matter. "(T)he inferences to be drawn from the underlying
 facts . . . must be viewed in the light most favorable to the party opposing
 the motion." [FN95]

      FN95. United States v. General Motors Corp., 171 U.S.App.D.C. 27, 48,
     518 F.2d 420, 441 (1975) (footnotes omitted), quoting United States v.
     Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176, 177 (1962).
     Accord, Adickes v. S. H. Kress & Co., 398 U.S. 144, 160, 90 S.Ct. 1598,
     1609-1610, 26 L.Ed.2d 142, 155-156 (1970); Bouchard v. Washington, 168
     U.S.App.D.C. 402, 405, 514 F.2d 824, 827 (1975); Bloomgarden v. Coyer,
     156 U.S.App.D.C. 109, 114-116, 479 F.2d 201, 206-208 (1973); Nyhus v.
     Travel Management Corp., 151 U.S.App.D.C. 269, 281, 466 F.2d 440, 442
     (1972).

  So, to prevail in a Freedom of Information Act suit, "the defending agency
 must prove that each document that falls within the class requested either has
 been produced, is unidentifiable, or is wholly exempt from the Act's inspection
 requirements." [FN96]

      FN96. National Cable Television Ass'n v. FCC, supra note 55, 156
     U.S.App.D.C. at 94, 479 F.2d at 186 (footnotes omitted).

  When the agency "has not previously segregated the requested class of records
 production may be required only 'where the agency (can) identify that material
 with reasonable effort.' " [FN97] And, of course, in adjudicating the adequacy
 of the agency's identification and retrieval efforts, the trial court may be
 warranted in relying upon agency affidavits, for these "are equally trustworthy
 when they aver that all documents have been produced or are unidentifiable as
 when they aver that identified documents are exempt." [FN98] To justify that
 degree of confidence, however, supporting affidavits must be " 'relatively
 detailed' and nonconclusory and must be submitted in good faith." [FN99] Even
 if these conditions are met the requester may nonetheless produce
 countervailing evidence, and if the sufficiency of the agency's identification
 or retrieval procedure is genuinely in issue, summary judgment is not in order.
 [FN100]

      FN97. Goland v. CIA, supra note 54, 197 U.S.App.D.C. at 39.40,
     607 F.2d at 353-354, quoting National Cable Television Ass'n v. FCC,
     supra note 55, 156 U.S.App.D.C. at 100, 479 F.2d at 192. See
     H.R.Rep.No.876, 93d Cong., 2d Sess. 5-6 (1974); S.Rep.No.854, 93d Cong., 2d
     Sess. 9-10 (1974). But Cf. Vaughn v. Rosen, supra note 42, 157
     U.S.App.D.C. at 348 & n.23, 484 F.2d at 828 & n.23 (encouraging agencies
     "to create internal procedures that will assure that disclosable
     information can be easily separated from that which is exempt").

      FN98. Goland v. CIA, supra note 54, 197 U.S.App.D.C. at 38, 607 F.2d
     at 352.

      FN99. Id. (footnote omitted), quoting Vaughn v. Rosen, supra note
     42, 157 U.S.App.D.C. at 346, 484 F.2d at 826.

      FN100. See text Supra at notes 94-96.

  NSA did not shoulder the burden cast upon summary-judgment movants by these
 salutary principles. Giving appellant the benefit of the inferences favorable
 to its cause, the record in its nebulous state simply does not establish the
 absence of a triable issue of fact the adequacy of the searches NSA made.
 [FN101] To accept its claim *837 **318 of inability to retrieve the
 requested documents in the circumstances presented is to raise the specter of
 easy circumvention of the Freedom of Information Act. Few if any requesters
 will be better informed than appellant on the particulars of data that may have
 been obtained clandestinely by a governmental intelligence agency.[FN102] To be
 sure, an agency is not " 'required to reorganize its (files) in response to' "
 a demand for information,[FN103] but it does have a firm statutory duty to make
 reasonable efforts to satisfy it.[FN104] If the agency can lightly avoid its
 responsibilities by laxity in identification or retrieval of desired materials,
 the majestic goals of the Act will soon pass beyond reach. And if, 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, the Act
 will inevitably become nugatory. In the situation before us, undiscriminating
 adoption of NSA's ill-elucidated assertions of thoroughness in its searches
 would threaten to excuse it substantially from the operation of the Act.

      FN101. The situation here is significantly variant from that presented in
     Goland v. CIA, supra note 54, decided on rehearing, March 28, 1979. When
     Goland was first considered by this court, the record on appeal
     incorporated affidavit attesting to the reasonableness of the agency's
     search, but relatively little to indicate the contrary. 197 U.S.App.D.C.
     at 39-41, 607 F.2d at 353-355. The court thus found no error in the grant
     of summary judgment for the agency, without awaiting discovery efforts by
     the requesters in the bare hope of falling upon something that might impugn
     the affidavits. Id. at 41, 607 F.2d at 355.
     On rehearing, the court adhered to that holding notwithstanding the
     emergence about a year and half after the District Court's judgment of
     numerous materials theretofore sought by the requesters, and the agency's
     delay of several months more in releasing them. Goland v. CIA, 197
     U.S.App.D.C. 25, 53-58, 07 F.2d 339, 367-372 (D.C.Cir. 1979) (opinion on
     rehearing). Additional unopposed affidavits filed by the agency on
     rehearing explained that because these items were unindexed and largely in
     storage among 84,000 cubic feet of inactive data at a retired-records
     center, they were irretrievable by normal procedures; and that they were
     located only because a law librarian had chanced upon them during the
     course of independent research on unrelated projects. Id. at 53-54, 56,
     607 F.2d at 367-368, 370. Very importantly, long before these materials
     were unearthed the District Court's adjudication on the search issue had
     achieved finality, and had passed beyond that court's power to alter on
     account of after-discovered evidence. Fed.R.Civ.P. 60(b). Consequently,
     whatever evidentiary reflections the sudden appearance of the newly-found
     documents might normally have had on the caliber of the original search
     were necessarily tempered by the deep-rooted policy fostering the stability
     of judgments. See Id. at 56, 607 F.2d at 370.
     Goland acknowledged that "the discovery of additional documents is more
     probative that the search was not thorough than if no other documents were
     found to exist," Id. at 56, 607 F.2d at 370, and that "the delay in
     disclosing the documents at least arguably evidences a lack of vigor, if
     not candor, in responding to Freedom of Information Act requests," Id.,
     but concluded simply that these inferences provided too weak a basis for a
     remand under 28 U.S.C. s 2106 (1976) for proceedings envisioning
     possible reopening of the District Court's final judgment, even assuming
     the propriety of that course of procedure. Id. at 57-58, 607 F.2d at
     371-372. See Realty Acceptance Corp. v. Montgomery, 284 U.S. 547, 52
     S.Ct. 215, 76 L.Ed. 476 (1932). In the case at bar, however, we encounter
     none of these strictures, for unlike Goland there is no problem of evidence
     outside the record on appeal. When the District Court ruled, it had before
     it all of the vital information tending to indicate that NSA's search was
     less than painstaking location of the fifteen documents after communication
     with the Central Intelligence Agency, in the milieu of grave uncertainty as
     to just what the prior searches had involved and faced. See text Supra at
     notes 80-93. And we must remain advertent to the consideration that on
     NSA's motion for summary judgment appellant was entitled to the benefit of
     all favorable inferences to be drawn from those circumstances. See text
     Supra at note 95. The difference between the two cases is thus that
     there the court dealt with the portent of post-judgment evidence for
     either Rule 60(b) or s 2106, and here the concern is rather with the
     impact of record evidence and evidentiary gaps upon the availability of
     summary judgment.

      FN102. See also note 82 Supra.

      FN103. Goland v. CIA (opinion on rehearing), Supra note 101, 197
     U.S.App.D.C. at 56, 607 F.2d at 370.

      FN104. See text Supra at note 97.

  We conclude, then, that the case warranted a more exhaustive account of NSA's
 search procedures than it advanced. That *838 **319 reckoning is now due,
 and to the extent practicable it should be made on the public record.[FN105]
 Following that, it may well become necessary for the District Court to
 entertain In camera affidavits [FN106] in order to assess de novo whether NSA
 has met its burden. The end result of that degree of attention to the problem
 by the litigants and the court may be origination of search procedures at once
 efficacious and reasonable. The Freedom of Information Act summons at least a
 conscientious effort in that direction.[FN107]

      FN105. See text Supra at notes 51-56.

      FN106. See text Supra at note 56. In camera review of the sixteen known
     documents may become an integral part of the effort to ascertain why they
     might have been overlooked during the initial searches.

      FN107. We repeat the admonition that "(a)gencies should continue to keep
     in mind . . . that 'their superior knowledge of the contents of their files
     should be used to further the philosophy of the act by facilitating, rather
     than hindering the handling of requests for records.' " S.Rep.No.854,
     Supra note 97, at 10, quoting Attorney General's Memorandum on the
     Freedom of Information Act 24 (1969).

  The summary judgment for NSA is reversed. The case is remanded to the District
 Court for further proceedings consistent with this opinion.[FN108]

      FN108. Our action is not to be taken as an instruction to the District
     Court to Order NSA to canvass its files for responsive records. We remand
     simply for fuller enlightenment on the agency's procedures to determine
     whether they failed and, if so, to direct it to try anew, this time
     utilizing reasonable search procedures that might more fully comport with
     the fundamental purposes of the Act.

  So ordered.

End of file...