The opinion of the court was delivered by: NEAHER
This is plaintiff's second action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552(a)(3), seeking to compel disclosure of a memorandum, dated October 24, 1952, from President Harry S. Truman to the Secretaries of State and Defense which established the National Security Agency (the Truman Memorandum). In the first action, 64 F.R.D. 1 (E.D.N.Y. 1974), this court held that the document was exempt from disclosure because it was in fact classified "Top Secret," an exemption under 5 U.S.C. § 552(b)(1),
and that under EPA v. Mink, 410 U.S. 73, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973), the court was precluded from making any inquiry into the reasonableness of the classification. Thereafter the statute was amended,
permitting inquiry into the propriety of classification, and plaintiff once again attempted to obtain the document. He was again unsuccessful throughout the appropriate administrative levels, and has commenced the present action to compel production of the Truman Memorandum under FOIA as amended.
The matter is now before the court on (1) plaintiff's motion to compel production of the minutes of two meetings of the Interagency Classification Review Committee at which his first administrative appeal in his quest for the Truman Memorandum was discussed, Rule 37, F.R.Civ.P.,
and (2) defendant's cross-motion for summary judgment denying disclosure of the Truman Memorandum, Rule 56, F.R.Civ.P. The summary judgment motion will be considered first, since a dispositive ruling would obviate the discovery motion.
Defendant seeks summary judgment on the ground that the Truman Memorandum is exempt from disclosure under Exemption 3 of FOIA, which provides for non-disclosure of matters that are "specifically exempted from disclosure by statute," 5 U.S.C. § 552(b)(3). Exemption 3 evidences a Congressional judgment that, despite the general intent of FOIA to open up to the public information concerning the public business, certain secrecy statutes should nonetheless remain in force. These are statutes which specifically restrict access to governmental records on the basis of Congressional decisions that the confidentiality of certain information in certain agencies is essential to protect the public interest. Administrator, FAA v. Robertson, 422 U.S. 255, 95 S. Ct. 2140, 2146-47, 45 L. Ed. 2d 164 (1975).
The government, unfortunately for plaintiff, has pointed to just such a statute, one which by its terms negates any requirement to make disclosure of information about the National Security Agency. It reads:
"[Nothing] in this Act or any other law . . . 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 the names, titles, salaries, or number of the persons employed by such agency." Pub. L. No. 86-36, § 6, 73 Stat. 63 (1959).
Although a specific aim of P.L. 86-36 was to exempt the National Security Agency from the U.S. Civil Service Commission's requirements of disclosure of personnel data and other information, it is manifest that this was in aid of a broader, overriding purpose; i. e., that no law shall require disclosure of the highly sensitive organizational and functional matters or activities of that Agency. This would necessarily include such a law as FOIA. The 1974 amendments of FOIA would not alter such an exemption.
Statutes which specifically exempt disclosure of documents under Exemption 3 need not precisely name the documents or describe the category in which they fall. Administrator, FAA v. Robertson, supra, 96 S. Ct. at 2147. Thus, the statute which permitted the Administrator of the FAA to withhold information when, in his judgment, disclosure would adversely affect the interests of an objecting party and was not required in the interest of the public, 49 U.S.C. § 1504, despite the breadth of the disclosure granted, was held to come within the purview of Exemption 3. Id. The function of this court's de novo inquiry when an agency asserts a right to withhold a document based on Exemption 3 is to determine "the factual existence of such a statute, regardless of how unwise, self-protective, or inadvertent the enactment might be." EPA v. Mink, supra, 410 U.S. at 95 n.* [Footnote Omitted] (Stewart, J. concurring).
The plain language of P.L. 86-36 renders it unnecessary to tarry long with plaintiff's criticism of defendant's affidavits as conclusory and therefore insufficient to establish an exemption. Contrary to plaintiff's contentions, those affidavits do not merely recite the statutory language.
The Davis affidavit, inter alia, states that the Truman Memorandum establishes a mechanism within the National Security Council to establish policy for and advise the President of activities of the intelligence community, outlines the mission of the National Security Agency and details the responsibilities of the Director. In like fashion, the Allen affidavit relates that, under the Memorandum, the National Security Agency was created as a separately organized agency within the Department of Defense and the Secretary of Defense was designated Executive Agent for the conduct of communications intelligence and security activities. Clearly these matters refer to the function, organization or activity of the Agency and, under P.L. No. 86-36, are not required to be disclosed. Exemption 3 of FOIA therefore permits defendant to withhold the Truman Memorandum from public scrutiny.
Accordingly, defendant's motion for summary judgment is granted and plaintiff's motions are denied in all respects.
/s/ EDWARD R. NEAHER / ...