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FERRY v. CIA

September 28, 1978

Wilbur Hugh FERRY and Carol Bernstein Ferry, Plaintiffs,
v.
CENTRAL INTELLIGENCE AGENCY, William E. Colby, Director, John F. Blake, Chairman of Information Review Committee and William E. Nelson, Deputy Director of Operations, Defendants



The opinion of the court was delivered by: BONSAL

MEMORANDUM

This is an action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 Et seq. Plaintiffs Wilbur Hugh Ferry and his wife Carol Bernstein Ferry seek "any or all files on (themselves) now held" by the Central Intelligence Agency ("CIA"). The action is now here on appeal from the rulings of Magistrate Schreiber, who was appointed by order dated December 21, 1976 as Special Master to review any contested documents In camera and determine the legitimacy of defendants' claims that certain documents or portions thereof were exempt from disclosure under FOIA. These rulings were made on December 29, 1977 ("Hearing I") and on May 3 and May 5, 1978 ("Hearing II"). Plaintiffs appeal the Magistrate's rulings with respect to Documents 5, 6, 9, 13, 14, 16, and 18. Defendants appeal his rulings with respect to Documents 8 and 13.

The Supreme Court has recently stated that "(t)he basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S. Ct. 2311, 2327, 57 L. Ed. 2d 159 (1978). The Act reflects " "a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.' " (Citation omitted.) Dep't of Air Force v. Rose, 425 U.S. 352, 360-361, 96 S. Ct. 1592, 1599, 48 L. Ed. 2d 11 (1976). The burden of establishing that any requested material falls within one of the exemptions in FOIA is on the Government. Ditlow v. Shultz, 170 U.S.App.D.C. 352, 355 n. 7, 517 F.2d 166, 169 n. 7 (1975); Robles v. EPA, 484 F.2d 843, 845 (4th Cir. 1973). In the instant case, defendants have claimed exemptions under 5 U.S.C. § 552(b)(1) ("Exemption 1"), 5 U.S.C. § 552(b)(3) ("Exemption 3"), and 5 U.S.C. § 552(b)(6) ("Exemption 6").

 In determining the legitimacy of any of the claimed exemptions, the Court has inspected In camera the contents of those contested documents where it was necessary to supplement the public record. However, the Court notes that in those cases where it finds that the CIA has made a good faith claim that disclosure would be detrimental to national security, the Court has accorded substantial weight to the classifying agency's opinion in determining the propriety of the classification. Ray v. Turner, (1978), nn. 19-21, 190 U.S.App.D.C. 290 nn. 19-21, 587 F.2d 1187 at 1194 nn. 19-21; Weissman v. CIA, 184 U.S.App.D.C. 117, 122, 565 F.2d 692, 697 (1977).

 DOCUMENT 5

 A sanitized copy of this one-page memorandum dated April 29, 1960 regarding security checks on U.S. citizens has already been released to plaintiffs. However, plaintiffs also request disclosure of three individuals whose names have been withheld. At Hearing I, the Magistrate determined that the names of two of the individuals, who were used by the CIA as intelligence sources, were exempt from disclosure under Exemption 3; at Hearing II, he determined that the identity of the last person, who was considered as a Potential intelligence source, was exempt from disclosure under Exemption 6.

 Exemption 3 protects from mandatory disclosure those matters which are "specifically exempted from disclosure by statute." 5 U.S.C. § 552(b)(3). Sections 403(d)(3) and 403g of Title 50 of the U.S.Code are such statutes. E. g., Weissman v. CIA, supra ; Fonda v. CIA, 434 F. Supp. 498 (D.D.C.1977). Section 403(d)(3) directs the Director of Central Intelligence to protect intelligence sources and methods from unauthorized disclosure, and Section 403g exempts the CIA from any law requiring disclosure of "the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency" if such disclosure could lead to the unauthorized disclosure of intelligence sources or methods. The transcripts of Hearings I and II as well as the supplemental affidavit of Charles Briggs dated May 6, 1977 (the "Briggs affidavit") sufficiently demonstrate that the names of the two individuals used as intelligence sources by the CIA are exempt from disclosure under Exemption 3.

 Exemption 6 protects "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). This exemption protects individuals from public disclosure of intimate details of their lives, Ditlow v. Shultz, supra ; the phrase "clearly unwarranted" requires the Court to weigh the individual's right of privacy against the public interest purpose of those seeking disclosure, Dep't of Air Force v. Rose, supra; Fonda v. CIA, supra at 506. Case law indicates that the courts will generally decide in favor of disclosure where the disclosure has a public interest purpose and the Particular information sought will contribute to this purpose. See, e.g., Dep't of Air Force v. Rose, supra; Getman v. NLRB, 146 U.S.App.D.C. 209, 450 F.2d 670 (1971); Philadelphia Newspapers, Inc. v. United States Dep't of Justice, 405 F. Supp. 8 (E.D.Pa.1975).

 Here, Mr. Ferry's request for any files on himself was a response to CIA Director Colby's representation in a New York Times article that the agency would release to American citizens nonsensitive portions of files it had completed on them. (See letter dated March 6, 1975 from Mr. Ferry to Mr. Colby.) Clearly, the Particular names sought by Mr. Ferry here do not contribute to his purpose of determining what the CIA compiled on him or what activities it carried out. Nor does his request have a public interest purpose commensurate with that found in the above-cited cases. Since the identification of persons considered or used as intelligence sources by the CIA is a clear invasion of privacy, the Court will sustain the Magistrate's ruling under Exemption 6. See Dep't of Air Force v. Rose, supra.

 DOCUMENT 6

 This four-page internal memorandum dated August 25, 1967 has a reference to Mr. Ferry on page 3 but it is in the context of a report on individuals other than the plaintiffs. A sanitized version was released, and Magistrate Schreiber ruled that the document could be withheld under Exemptions 3 and 6 except for page 1 and page 3 (from paragraph 3 on), which includes the reference to Mr. Ferry. The transcript of Hearing I as well as the Magistrate's In camera inspection and the Briggs affidavit provide a sufficient record to sustain his ruling under Exemption 3 and Exemption 6. See Weissman v. CIA, supra, 184 U.S.App.D.C. at 122, 565 F.2d at 697.

 DOCUMENT 8

 This cable dated March 26, 1975 discusses a Los Angeles Times article which refers to Mr. Ferry's resignation from the Center for the Study of Democratic Institutions. The first two paragraphs of the cable have been released but defendants dispute the Magistrate's decision to also release the third paragraph. They contend that this paragraph "contains ...


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