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JONATHAN A. BENNETT 1001 WOODYCREST AVE. BRONX V.

September 10, 1976

JONATHAN A. BENNETT 1001 Woodycrest Avenue Bronx, New York 10452, Plaintiff,
v.
THE UNITED STATES DEPARTMENT OF DEFENSE; THE UNITED STATES CENTRAL INTELLIGENCE AGENCY; JAMES R. SCHLESINGER, Secretary of Defense, Washington, D.C. 20301; WILLIAM E. COLBY, director of Central Intelligence, Washington, D.C. 20505, Defendants



The opinion of the court was delivered by: MACMAHON

MacMAHON, District Judge.

 Defendants move, pursuant to Rule 56, Fed.R.Civ.P., for summary judgment dismissing the complaint in this suit brought under the Freedom of Information Act ("FOIA"). *fn1" Plaintiff cross-moves for an order requiring defendants to supply the court with a detailed justification, itemization, and indexing of the documents claimed to be of exempt status pursuant to Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820, 826 et seq. (1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974).

 Plaintiff, by letter dated April 30, 1975, requested the Department of Defense ("DOD") to disclose any and all documents setting forth:

 
"(1) the dates, objectives, and results of any and all missions undertaken by the Department of Defense having the objective of introducing men or materiel into the Republic of Cuba after January 1, 1959,
 
(2) the specific method used by the Department of Defense to maintain a record of any and all such missions (requested only if (1) cannot be provided), and
 
(3) the legislative or executive authorization for any activity on the part of the Department of Defense which might reasonably be described as having the objective of introducing personnel or materiel into the Republic of Cuba after January 1, 1959."

 Plaintiff later modified his request to exclude information "concerning the introduction of men or materiel within the boundaries of the US military installation at Guantanamo, Cuba."

 DOD conducted a search of documents to discover those arguably responsive to plaintiff's request and then forwarded those documents either to the National Security Council ("NSC") or to the Central Intelligence Agency ("CIA"). Those agencies undertook a further review of the documents to determine whether they were in fact responsive to the request and whether any such documents should be declassified. Plaintiff was informed that the NSC and the CIA had determined that all responsive documents were properly classified and/or contained information on intelligence sources and methods which was not of a segregable nature. Plaintiff's administrative appeal from that decision was denied and this suit resulted.

 Plaintiff now seeks to enjoin defendants from withholding the requested documents.

 Defendants assert that all documents responsive to plaintiff's request are exempt from disclosure under any one or more of three exemptions of the FOIA.

 Exemption 1 provides that the FOIA does not apply to documents that are:

 
"(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." *fn2"

 Defendants claim that all responsive documents have been properly classified under the terms of Executive Order 11652. *fn3" This order defines three levels of classification and the tests for assigning each classification to particular information. *fn4"

 In detailed affidavits, defendants have shown to our satisfaction that all of the responsive documents have been classified either as "Secret" or "Top Secret." Prior to 1974, our inquiry would stop at this point. In Environmental Protection Agency v. Mink, 410 U.S. 73, 35 L. Ed. 2d 119, 93 S. Ct. 827 (1973), the Supreme Court held that, once it was determined that the requested records were classified, Exemption 1 (as it then read) prohibited the court from ordering an in camera ...


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