Before BAZELON, Senior Circuit Judge, WILKEY and EDWARDS, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia (D.C. Civil No. 76-1922).
Opinion for the Court filed by Circuit Judge WILKEY.
Concurring opinion in which Circuit Judge EDWARDS joins filed by Senior Circuit Judge BAZELON.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WILKEY
This case arises under the Freedom of Information Act . *fn1 Appellant requested the Federal Bureau of Investigation (FBI or Bureau) to provide her with all information referring to her in files maintained under her name or under the names of other individuals or organizations. The Government released much of the information involved, but withheld certain materials pursuant to various exemptions to the FOIA. The district court granted summary judgment to the Government on the grounds that the materials at issue were exempt from disclosure under Exemptions 1, 3, 7, and 7of the FOIA. *fn2 On this appeal appellant contests the district court's rulings with respect to Exemptions 1, 7, and 7.
This case presents many of the same issues as Lesar v. United States Department of Justice, *fn3 decided 15 July 1980. For reasons set forth in that decision and for reasons further developed below, we affirm in all respects. I. BACKGROUND
On 27 April 1976 appellant requested the FBI to produce "(a)ll information or other references or materials, in whatever form or manner, referring to or directly or indirectly concerning Joan C. Baez whether filed under her name or obtainable by searching through other files or materials." *fn4 Because the Bureau was unable to process appellant's request in a timely manner, appellant brought suit in the United States District Court on 18 October 1976 to compel disclosure of the records. On 18 February 1977 the district court granted the Government's motion to stay the proceedings pending the completion of the administrative processing of appellant's request.
In response to appellant's request the FBI searched both its files bearing appellant's name, so-called "main files," as well as files maintained on organizations and individuals other than appellant in which appellant's name might appear, so-called "see reference files." After completing its search of the main files, the FBI by letter dated 21 March 1977 released 365 pages of materials to appellant. Portions of these documents were withheld pursuant to various Exemptions to the FOIA. *fn5 The Government later released an additional 145 pages as a result of appellant's administrative appeal, but continued to withhold certain materials from the main files relying on Exemptions 1, 3, 7, 7, and 7of the FOIA. Two affidavits were submitted to the district court explaining the reasons for the denial. *fn6
In April 1978 appellant was notified that the FBI had completed its search for references to her appearing in the "see reference" files. The Government released 1,075 pages to appellant, with portions withheld pursuant to Exemptions 1, 7, 7, and 7of the FOIA. *fn7 The Government filed two affidavits with the district court in support of the claimed exemptions. *fn8
During its search of its files for appellant, the Bureau also located nine documents generated by the Department of the Army (Army) that contained references to appellant, and these documents were referred to the Army for processing. The Army released portions of the documents to appellant, but withheld other segments and certain of the documents in their entirety, relying on Exemptions 1, 7, and 7of the FOIA. *fn9 While the case was pending on administrative appeal, a new Executive Order governing the classification of documents, Executive Order No. 12,065, *fn10 went into effect. Accordingly, the Army reassessed the documents withheld as classified under the standards of that Order and determined that the materials still warranted classification. *fn11
After exhausting her administrative appeals, appellant moved for summary judgment and in camera review of the documents on 7 November 1978, and on 1 December 1978 the Government filed its cross-motion for summary judgment with supporting affidavits. Also, on 21 June 1979 the Government filed additional affidavits with the district court, one of which indicated that the FBI had reexamined all of the documents withheld as classified under the classification criteria established by the new Executive Order. The official averred that the documents still merited classification under the standards of Executive Order No. 12,065. *fn12
On 25 June 1979 the district court held a hearing on the cross-motions for summary judgment and, in a ruling rendered from the bench, the district court found that Exemptions 1, 3, 7, and 7of the FOIA were properly and well taken. In response to appellant's Motion for Clarification and A More Definite Statement of Reasons, the court issued a brief written statement clarifying its reasons for its ruling.
This appeal followed. Appellant contends that the district court erred with respect to its rulings on Exemptions 1, 7, and 7. Also, appellant claims that the trial judge failed to provide her with an adequate statement of his reasons. We do not find these contentions persuasive. II. ANALYSIS
Exemption 1 protects against disclosure matters which are "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such an Executive order." *fn13 At issue under this exemption are twenty-six FBI documents, obtained from both the main files and from the see reference files, and four Army documents.
All of the Army documents and some of the FBI documents initially were classified at the time of origination of these materials, and after appellant's FOIA request was received, these documents were reviewed under the substantive and procedural criteria of Executive Order No. 11,65214 to determine whether they still required classification. Several of the FBI documents, however, first were classified with reference to the standards set forth in Executive Order No. 11,652 not at the time of origination of these materials but only after appellant submitted her FOIA request. Supporting affidavits explaining the reasons for classification of all the materials were filed with the district court.15
Subsequently Executive Order No. 11,652 was replaced by Executive Order No. 12,065.16 Both the FBI and the Army reevaluated all documents withheld under the classification standards established by Executive Order No. 12,065. The Army and the Bureau determined that the materials warranted classification at the same level under the substantive terms of the new Executive Order. In addition all of the documents were marked to conform to the procedural criteria of Executive Order No. 12,065. Supporting affidavits again were submitted to the district court.17
As a preliminary issue appellant contends that those FBI documents which were classified originally under Executive Order No. 11,652 after appellant's FOIA request was received do not qualify for protection under Exemption 1. The National Security Council directive implementing Executive Order No. 11,652 provides for classification at the time of origination of the documents.18 In view of our decision in Halperin v. Department of State,19 appellant contends, the failure to conform to this procedural criterion necessitates a remand to the district court for in camera review and release of the documents unless the agency can show that exceptionally grave damage to the national security would result.
Our response is twofold. First, even assuming that Executive Order No. 11,652 were the relevant Executive Order for purposes of assessing the agency's classification decision, release of the documents or remand to the district court for in camera inspection is neither mandated by our decision in Halperin nor appropriate. More important, Executive Order No. 12,065 and not Executive Order No. 11,652 states the relevant criteria for purposes of reviewing the classification determination for all documents involved in this appeal-and that Executive Order expressly provides for classification at times later than the origination of a particular document.
As we indicated in Lesar v. United States Department of Justice,20 Halperin involved not only a failure to classify the materials at the time of origin but also a total disregard on the part of the agency of the substantive standards set forth in Executive Order No. 11,652. Thus we stated in Lesar that Halperin did not resolve explicitly the question of whether the failure to classify documents at the date of origin, standing alone, required a remand to the district court for in camera inspection and possible release thereafter.21 We recognized that although procedural and substantive conformity to the relevant Executive Order is required by the terms of the statute, the consequences of a particular procedural defect may differ.22 A procedural defect, we observed, would not mandate the outright release of the documents, but it may be of such importance to implicate the agency's overall classification decision, necessitating a remand to the district court for in camera review. Alternatively, we noted, the defect may be insignificant, affecting not at all the validity of the agency's classification determination. We concluded that in the case of a failure to classify materials at the time of origin, if the affidavits submitted revealed that the substantive standards of the ...