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THORSTAD v. CIA

November 26, 1979

DAVID H. THORSTAD, Plaintiff, against CENTRAL INTELLIGENCE AGENCY, FEDERAL BUREAU OF INVESTIGATION, and UNITED STATES DEPARTMENT OF JUSTICE, Defendants.


The opinion of the court was delivered by: MOTLEY

MEMORANDUM OPINION

Plaintiff in this action seeks, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to obtain the release of all records pertaining to plaintiff which are in the possession of defendants, the Central Intelligence Agency (CIA) and the Federal Bureau of Investigation (FBI). While defendants have released to plaintiff numerous documents in partly redacted form, defendants have withheld certain information allegedly exempt under various exemptions of the FOIA. Following commencement of this action, plaintiff moved for an order compelling defendants to provide a detailed and specific justification, itemization, and indexing explaining defendants' refusal to release the requested documents. On August 15, 1978, the court directed defendants to produce such an itemization and justification (the "Vaughn " index) by September 11, 1978.

 In accordance with the court's direction, defendants submitted affidavits describing the documents withheld and the justification for withholding them. Plaintiff now moves for an order requiring defendants to provide further detailed descriptions of information withheld and justifications for their allegations that the documents requested are exempt from disclosure.

 Legal Framework

 In the leading case of Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820, 826-27 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974) (footnote omitted), the Court of Appeals for the District of Columbia Circuit held:

 
Courts will simply no longer accept conclusory and generalized allegations of exemptions, such as the trial court was treated to in this case, but will require a relatively detailed analysis in manageable segments. An analysis sufficiently detailed would not have to contain factual descriptions that if made public would compromise the secret nature of the information, but could ordinarily be composed without excessive reference to the actual language of the document.

 The Vaughn court went on to explain that the Government should "formulate a system of itemizing and indexing that would correlate statements made in the Government's refusal justification with the actual portions of the document." Id. at 827 (footnote omitted).

 The Court of Appeals for the District of Columbia Circuit further explained its Vaughn holding in Ray v. Turner, 190 U.S. App. D.C. 290, 587 F.2d 1187 (D.C. Cir. 1978). The court explained that Vaughn "initiated procedures designed to mitigate the administrative burden on the courts and ensure that the burden of justifying claimed exemptions would in fact be borne by the agencies to whom it had been assigned by Congress." Id. at 1191. The Ray court emphasized that the court in its de novo review must " "accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record.' " Id. at 1194 (quoting S.Rep. No. 93-1200, 93 Cong., 2d Sess. 12 (1974), U.S.Code Cong. & Admin.News 1974, pp. 6267, 6290) (footnote omitted). Moreover, the court reviewing claimed exemptions must " "be satisfied that proper procedures have been followed, and that by its sufficient description the contested document logically falls into the category of the exemption indicated.' " Id. at 1195 (quoting Weissman v. CIA, 184 U.S. App. D.C. 117, 565 F.2d 692, 697 (D.C. Cir. 1977)). "Whether there is a "sufficient description' to establish the exemptions is, of course, a key issue." Id. at 195 n.22.

 It is clear that the Vaughn requirements apply with full force in this court. The Government must provide a detailed justification and specific indexing so that the court may determine whether the Government has satisfied its burden of demonstrating the applicability of particular FOIA exemptions. See Mobil Oil Corp. v. Federal Trade Commission, 406 F. Supp. 305 (S.D.N.Y. 1976). The critical issue, then, is whether the affidavits and indexing submitted by defendants in the case at hand have satisfied the Vaughn requirements.

 FBI Affidavits

 The FBI has submitted four affidavits describing the documents which it has withheld.

 1) Strong Affidavit. The affidavit of Loweel B. Strong purports to describe the documents withheld by the FBI pursuant to Exemption (b)(1), 5 U.S.C. § 552(b)(1). While the affidavit describes each document by its type of communication, its source, and its date, the affidavit contains virtually no description of the information withheld. Without any description of the nature of the information, it is virtually impossible to determine the validity of the claimed exemptions. While the affidavit need not contain factual descriptions that might compromise the secret nature of the information, certainly the affidavit could at least describe the information in general terms without reference to the actual language or contents of the documents.

 For example, the only description of the information contained in Document No. 1 is that "its disclosure could reveal an intelligence source or method and could disclose a specific foreign relations matter." The affidavit describes how the document was classified, but with no further description of its information. The above "description" is, in fact, a conclusory and generalized allegation of an exemption, and certainly is neither a "relatively detailed analysis" nor a "sufficient description" as required by Vaughn and Ray. The other descriptions in the Strong affidavit are similarly inadequate.

 2) Murphy Affidavit. The affidavit of John C. Murphy purports to describe the remaining documents held by the FBI. Again, this affidavit describes each document by its type of communication, its source, and its date, but with virtually no description of the information withheld. For example, two full paragraphs on page 12 of Document No. 14 were deleted with the following description: "All of paragraphs 2 and 3 were deleted pursuant to exemption (b) (1) in order to protect information currently and properly classified under Executive Order 11652. (See paragraph (5)(A), supra.) There is no reasonably ...


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