The opinion of the court was delivered by: BRIEANT
By motion docketed December 21, 1979 and fully submitted for decision on January 30, 1980, defendants National Security Agency ("NSA") and Admiral Inman seek an order granting summary judgment pursuant to Rule 56, F.R.Civ.P., dismissing plaintiff's action to obtain a document under the Freedom of Information Act ("FOIA").
Admiral Inman also seeks an order pursuant to Rule 12, F.R.Civ.P., dismissing the complaint against him for failure to state a claim. On January 10, 1980, plaintiff filed papers in opposition, in which he also moved for summary judgment on his FOIA claim, and, in the alternative, requested in camera inspection by the Court of the requested document. The complaint, filed October 17, 1977, alleges a violation of the FOIA, 5 U.S.C. § 552(a), et seq., arising out of defendant's refusal to respond to plaintiff's request for the disclosure of a document. Subject matter jurisdiction is founded upon 5 U.S.C. § 552(a)(4)(B). As to defendant Inman, this action is frivolous. He is not a proper party defendant and no claim is stated as to him. This complaint was originally filed pro se. Counsel who has subsequently been retained by plaintiff does not dispute the point. As to defendant Inman, the complaint is dismissed. An FOIA action may be brought only against a federal agency, not against individuals or the Government itself. Morpurgo v. Bd. of Higher Educ., 423 F. Supp. 704, 714 fn. 26 (S.D.N.Y.1976).
The relevant facts are not in dispute. Plaintiff describes himself as a serious historian, and author of a published work entitled "Coup D'Etat in America," interested in acquiring additional knowledge concerning an historical event of legitimate public interest; the assassination, on Nov. 22, 1963 at Dallas, Texas, of President John F. Kennedy.
The Court will treat the request as made in good faith for the purpose of satisfying a legitimate curiosity shared by many concerning a mysterious series of events which happened more than sixteen years ago. It will be recalled that J. Harvey Oswald allegedly shot the President, and later, at a different location, shot and killed Dallas Police Officer Tippett with a different weapon. Taken into custody following the second killing, Oswald was shot and killed, on national television, by Jack Ruby. This before he had been arraigned or had given any statement which might have identified possible co-conspirators.
The NSA received a letter from plaintiff on March 10, 1977 requesting a copy of a document described by him as a telegram or message sent by Jack Ruby's brother, Earl Ruby, from Cobo Cleaners, 18135 Livernois, Detroit, Michigan to Havana, Cuba on April 1, 1962. By letter dated March 24, 1977 a NSA information officer, Norman Boardman, denied the request, asserting that (1) the fact of the existence or non-existence of the information requested was classified, and the plaintiff was not a person authorized to receive classified information, 5 U.S.C. § 552(b)(1); and (2) the information was exempt from disclosure under 5 U.S.C. § 552(b)(1) and (3). Plaintiff's administrative appeal of this decision by letter postmarked April 19, 1977 was denied by letter of William J. Jenkins dated May 10, 1977 for the same reasons.
The plaintiff then filed this action.
In support of its motion, defendant contends first that NSA's refusal to provide plaintiff with the requested information was justified under 5 U.S.C. § 552(b)(1) ("Exemption 1") because Executive Order 12065 properly classified the existence or non-existence of the document as "Secret." It will be understood that the message, if it exists, was transmitted by telegraphic means from Detroit, Michigan to a so-called "Gateway City" of which New York is one, from which it was transmitted to the Republic of Cuba either by transoceanic cable or wireless, either directly, or more likely, through facilities of another nation. One of the two affidavits submitted by John R. Harney, Assistant Director for Policy and Liaison at NSA, explains that a primary function of the agency is to intercept foreign communications to obtain foreign intelligence. However, because of the enormous amounts of communications and lines carrying those communications, NSA focuses on particular lines which are apt to yield the highest volume of useful foreign intelligence information. If NSA were forced to disclose documents which revealed the particular lines being monitored, a foreign power might obtain this information and withhold future communications over these lines, thereby causing NSA to lose a valuable source of information and rendering NSA more vulnerable, with concomitant injury to national security. Harney concludes that the fact of existence or non-existence of the message sent by Earl Ruby is properly classified as Secret by Executive Order 12065, because disclosure of such a fact would reveal that NSA did or did not monitor and intercept communications on a particular line or route on April 1, 1962.
Defendants also contend that their refusal to provide the requested information to plaintiff was proper under 5 U.S.C. § 552(b)(3) ("Exemption 3"), because several statutes protect disclosure of information concerning the communications intelligence activities of NSA.
Plaintiff replies that the fact of existence or non-existence of the requested information is not properly classified as Secret under Executive Order 12065, and therefore not exempt from the FOIA requirements by Exemption 1, because the NSA monitoring program that intercepted this message, called "Shamrock," is a matter of public record in a Senate Committee report, the Senate Committee to Study Governmental Operations, Supplementary Staff Reports on Intelligence Activities and the Rights of Americans, Report No. 94-755, 94th Congress, 2d Sess. (1976) (hereinafter referred to as the Church Committee Report).
There is nothing Secret or Confidential now about Operation Shamrock, if we assume as we must that the unnamed unfriendly foreign intelligence subscribes to the publications of the U.S. Government Printing Office and can read English. Its cover has been blown by the Church Committee which has revealed for all to read, that:
"SHAMROCK is the codename for a special program in which NSA received copies of most international telegrams leaving the United States between August 1945 and May 1975. Two of the participating international telegraph companies RCA Global and ITT World Communications provided virtually all their international message traffic to NSA. The third, Western Union International, only provided copies of certain foreign traffic from 1945 until 1972. SHAMROCK was probably the largest governmental interception program affecting Americans ever undertaken. Although the total number of telegrams read during its course is not available, NSA estimates that in the last two or three years of SHAMROCK's existence, about 150,000 telegrams per month were reviewed by NSA analysts (footnote omitted).
Initially, NSA received copies of international telegrams in the form of microfilm or paper tapes. These were sorted manually to obtain foreign messages. When RCA Global and ITT World Communications switched to magnetic tapes in the 1960's, NSA made copies of these tapes and subjected them to an electronic sorting process.
Obtaining the international telegrams of American citizens by NSA at the offices of the telegraph companies appears to violate the privacy of these citizens, as protected by the Fourth Amendment. That Amendment guarantees to the people the right to be "secure . . . in their papers . . . against unreasonable searches and seizures.' It also provides that "no Warrants shall issue, but upon probable cause.' In no case did NSA obtain a search warrant prior to obtaining a telegram.
(I)n early September the (NSA) gave the Committee its first detailed information. This briefing was followed by interviews with present and former NSA employees who had been responsible for the program and by examinations of documents at NSA and the Department of Defense. NSA assured the Committee at the time that it had examined all NSA documents which pertained to SHAMROCK. On September 23, (1975) the full Committee was briefed by an NSA official in executive session. Following this briefing, the Committee interviewed officials in the telegraph companies which had participated in the SHAMROCK program.
On the basis of this investigation, the Committee prepared a report which it submitted to NSA for review. NSA had no specific comments regarding the accuracy of the report, but expressed its general objection to public disclosure of the operation on the grounds that ...