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DIAMOND v. FBI

August 5, 1981

Sigmund DIAMOND, Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION, William Webster, Director, Federal Bureau of Investigation, United States Department of Justice, Griffin Bell, Attorney General of the United States, United States Department of State, and Cyrus Vance, Secretary of State, Defendants



The opinion of the court was delivered by: CARTER

This is an action pursuant to the Freedom of Information Act ("Act" or "FOIA"), 5 U.S.C. § 552 (1976), and the Privacy Act, 5 U.S.C. § 552a (1976), to compel disclosure of materials in possession of the Federal Bureau of Investigation ("FBI") and the United States Department of State. The plaintiff, Sigmund Diamond, a professor of Sociology and History at Columbia University, has been seeking documents relating to government surveillance of academicians, including himself, during the McCarthy era. Prior to commencing this suit Diamond had obtained, by requests under the Act, 638 pages of documents without redaction and 382 with redaction. An additional 118 pages had been withheld in their entirety. The redacted and withheld documents are the subject of this suit.

In July, 1979, more than two years after he began his administrative attempts to secure the documents, plaintiff filed this action and a concomitant motion to require detailed justification, itemization and indexing of the withholdings and deletions-a so-called Vaughn motion, see Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820, 826-28 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974). Diamond's motion was granted in part, and the defendants were ordered to provide individualized statements of and justifications for exemptions claimed under the FOIA and the Privacy Act. Defendants were also ordered to provide a descriptive index of withheld documents and explanations of the numbers, abbreviations, codes, handwritten notations and other markings on the released documents. Diamond v. FBI, 487 F. Supp. 774 (S.D.N.Y.1979) (Carter, J.).

Several months later the government produced an index of the claimed exemptions, along with affidavits from various FBI special agents and State Department officials, describing the material in question and the administrative procedures followed in evaluating the material. The index and affidavits related each of the deletions to one or more of the following exemptions: § 552(b)(1), (b)(6), (b)(7)(C), and (b)(7)(D) of the FOIA; and § 552a(k)(5) of the Privacy Act. Following this submission the government moved for summary judgment. Diamond maintains that defendants have not adequately complied with the court's order of October, 1979, and moves for limited discovery, in camera review of the documents withheld or redacted, a waiver of charges related to the reproduction of the documents pursuant to § 552(a)(4) (A), and for attorney's fees. Id., § 552(a)(4)(E).

 The claims of exemption will be considered in turn, but one preliminary matter must be disposed of first. The government argues that Griffin Bell, William Webster and Cyrus Vance should be dropped as defendants in this action. They are named as the Attorney General and the heads of their government units, the FBI, and the Department of State, respectively. While Bell and Vance no longer occupy their respective positions and should be substituted appropriately, the government's motion charges that, even in their official capacities, they are not proper party defendants, for jurisdiction under the FOIA and the Privacy Act is limited to enjoining agencies from withholding records and ordering same to produce records improperly withheld. See 5 U.S.C. § 552(a)(4)(B); 5 U.S.C. § 552a(a)(1).

 The government's motion is denied. As the court stated in Hamlin v. Kelley, 433 F. Supp. 180, 181 (N.D.Ill.1977):

 
(So) many cases under this Statute have been sustained against heads of departments, units and agencies that their susceptibility to suit is well established.

 See also Lopez Pacheco v. FBI, 470 F. Supp. 1091, 1095 n.2 (D.P.R.1979), Nemetz v. Dept. of Treasury, 446 F. Supp. 102, 106 (N.D.Ill.1978). Moreover, we note that in the most recent Second Circuit case involving FOIA exemptions, Keeney v. FBI et al., 630 F.2d 114 (2d Cir. 1980), Clarence Kelley, Director of the FBI, and Edward Levi, Attorney General, were retained as defendants.

 Exemption (b)(1)

 Exemption (b)(1) protects against disclosure of matters that are

 
(A) specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive Order.

 5 U.S.C. § 552(b)(1) (1976). Documents are properly withheld from disclosure pursuant to this exemption if "the President has determined by Executive Order that particular documents are to be kept secret." EPA v. Mink, 410 U.S. 73, 82, 93 S. Ct. 827, 833, 35 L. Ed. 2d 119 (1973). Citing this provision the government has withheld or made deletions in 42 documents. Special agent Busching's affidavit asserts that such documents were properly classified in accordance with Executive Order ("E.O.") 12065, 43 Fed.Reg. 28491, and meet the classification criteria set forth therein. *fn1" Plaintiff does not dispute that proper procedures were followed. At issue, however, is whether the withheld items meet the classification criteria.

 Judicial review of the agency's classification decisions is to be taken de novo, and the burden is on the government to justify its action. 5 U.S.C. § 552(a)(4)(B) (1976). This exemption, like all exemptions under FOIA, should not "obscure the basic policy that disclosure, not secrecy, is the dominant policy of the Act." Dept. of Air Force v. Rose, 425 U.S. 352, 361, 96 S. Ct. 1592, 1599, 48 L. Ed. 2d 11 (1976). The exemption, therefore, is to be construed narrowly. Ray v. Turner, 190 U.S. App. D.C. 290, 587 F.2d 1187, 1200 (D.C.Cir.1978) (Wright, J. concurring). The government meets its burden if its affidavits establish with reasonable specificity the nature of the documents at issue and the justification for nondisclosure, and if the description shows that the information withheld or excised logically falls within the claimed exemption. Ray v. Turner, supra, 587 F.2d at 1194-95; Weissman v. CIA, 184 U.S. App. D.C. 117, 565 F.2d 692, 697 (D.C.Cir.1977).

 In his affidavit accompanying the documents, special agent Busching explains the application of the executive order to the documents. E.O. 12065 contains procedural and substantive requirements for the classifications and requires that classified documents concern a specified category of information related to national security, including

 
(b) government information; (c) intelligence activities, sources or methods; (d) foreign relations or foreign activities of the United States.

 E.O. 12065, 1-301(b)-(d). Busching affirms that, as an intelligence declassification authority, he has examined the withheld documents. His affidavit relates the withheld materials to secret intelligence sources, secret intelligence activities or methods, secret foreign relations matters or activities, or secret intelligence information provided to the United States with the understanding that the information be kept in confidence.

 In evaluating the government's refusal to disclose, the court must "accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record." S.Rep.No.93-1200, 93rd Cong. 2d Sess. 12 (1974), U.S.Code Cong. & Admin.News 6267, 6290 (1974); Weissman v. CIA, supra at 697 n.10. Careful consideration of defendants' affidavits and exhibits shows that the government has met its burden with respect to those items related to confidential foreign sources and other foreign relations matters, 1-301(b) and (d). The government has made limited use of these grounds, citing 1-301(b) on six occasions and 1-301(d) on five. Disclosure of this information must be presumed to cause at least identifiable damage to the national security, E.O. 12065, 1-303, *fn2" and the Busching Affidavit asserts that, for each of these, disclosure could reasonably be expected to cause identifiable, or, in the case of two items, serious damage to national security. *fn3" Busching's affidavit is sufficiently detailed to establish that each item not disclosed in accordance with 1-301(b) and (d) logically falls into the category asserted. Other courts have held affidavits no more detailed than Busching's sufficient to justify the exemptions, e.g. Terkel v. Kelly, 599 F.2d 214 (7th Cir. 1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 662, 62 L. Ed. 2d 642 (1980); Bell v. United States, 563 F.2d 484 (1st Cir. 1977), and there is no reason to deviate from that norm in this case.

 Plaintiff has not specifically challenged the bona fides of the government's assertions. As will be discussed, infra, plaintiff is generally cynical about the government's deleting documents for national security reasons, but he has raised no specific challenge to the particular documents exempted under 1-301(b) and (d). Accordingly, summary judgment is granted with respect to these eleven documents.

 Plaintiff's challenge to the government's withholdings pursuant to 1-301(c) are more specific, and his grounds for skepticism more compelling. In effect, he argues that the government has sought to exempt material that could not possibly endanger national security, solely because release of that information is thought to lead to the disclosure of some intelligence source. The breadth of the government's use of 1-301(c), he contends, indicates that all the deletions should be examined in camera by the court.

 The Act has authorized in camera inspection of withheld documents in the discretion of the court. 5 U.S.C. § 552(a)(4)(B). Such discretion is to be exercised with restraint, particularly where the government has made a plausible case for exemption. Lead Industries Assn. v. Occup. S. & H. Ad., 610 F.2d 70, 87 (2d Cir. 1979); Cliff v. Internal Rev. Serv., 496 F. Supp. 568, 572 n.9 (S.D.N.Y.1980) (Carter, J.). However, where redactions are inadequately described and insufficiently substantiated, in camera inspection is appropriate. Ray v. Turner, supra, 587 F.2d at 1194-95; Lamont v. Dept. of Justice, 475 F. Supp. 761, 770-73 (S.D.N.Y.1979) (Weinfeld, J.).

 For documents withheld under 1-301(c), as for those exempted under 1-301(b) and (d), the Busching Affidavit asserts that disclosure of this information could reasonably be expected to cause identifiable damage to security. The typical justification for non-disclosure under 1-301(c) is that "the portions (excised) contain a singular identifier for the intelligence source." *fn4" However, in virtually every instance, substantially more has been excluded than just the singular identifier, an expansiveness supposedly justified because

 
Due to the uniqueness of the information, a more detailed description of the withheld classified portions of this document would identify the source and could reasonably be expected to result in identifiable damage as explained ... above.

 Busching Affidavit, p. 11. But this "explanation" is recited verbatim thirty-two times for exemptions claimed under 1-301(c), to justify withholding as much as four consecutive pages of material. No reason, other than the alleged uniqueness of the information, is given why each exempted document or passage, other than the singular identifier itself, would disclose intelligence sources. Moreover, why all of the substantial redactions might identify sources, other than the bald assertion that this is so, is not explained. "In sum, the government's reasons, when carefully compared with the pattern of non-disclosure, suggest that (defendants) may have withheld segregable non-exempt material," Lamont v. Dept. of Justice, supra, 475 F. Supp. 761, 771, when these documents were classified under E.O. 12065, and certain of them must be examined in camera.

 Most of plaintiff's challenge to the government's use of the (b)(1) exemption is based on his cynicism that these materials, many of which are more than thirty years old, could be presumed to involve national security. For example, he questions withholding the "travel plans of an intelligence source" (Document # 32) or documents concerning "the organization of the Communist Party of New England" (# 139) on the grounds that disclosing such items would not likely endanger national security. Plaintiff's argument on this score is misplaced. First, the court need not "test the expertise of the agency," Weissman v. Central Intelligence Agency, supra at 697, in evaluating the exemption, for the court will not attempt to "substitute its judgment for the agency's as to the harm which disclosure would cause," Ferry v. Central Intelligence Agency, 458 F. Supp. 664, 667 (S.D.N.Y.1978) (Bonsal, J.). Second, it is inaccurate to construe the government as contending that the documents themselves would jeopardize national security if released. Rather, the government avers that their release would reveal the identity of an intelligence source, and exposing the source "reasonably could be expected to cause at least identifiable damage to national security." E.O. 12065, 1-302; Busching Affidavit PP4(A)(1) and (2).

 The government asserts that each document was examined on an individual basis, and each classified by a top secret classification authority (P5). Busching further affirms that he received, as a declassification authority, all withheld classified paragraphs (P7). Documents over twenty years old were reviewed by the Departmental Review Committee (P11). Thus, contrary to plaintiff's suggestion, the court is persuaded, as was Judge Weinfeld in Lamont v. Dept. of Justice, supra, that

 
the interests identified in the FBI's affidavits are such that their disclosure might cause "identifiable damage to the national security": the Government's ability to gather intelligence information essential to national defense and security could be undermined if its secret sources and investigatory methods ... were disclosed to the public.

 475 F. Supp. at 770.

 Accordingly, defendants are ordered to produce for in camera inspection those items listed in the margin. *fn5" Summary judgment is granted with respect to the remaining items exempted pursuant to subsection ...


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