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DAILY ORANGE CORP. v. CIA

February 18, 1982;

DAILY ORANGE CORPORATION, et al., Plaintiffs,
v.
CENTRAL INTELLIGENCE AGENCY, et al., Defendants



The opinion of the court was delivered by: MUNSON

MEMORANDUM-DECISION AND ORDER

On August 25, 1981, this Court issued a Memorandum-Decision and Order granting partial summary judgment for defendants. In denying part of their motion, the Court ordered the Central Intelligence Agency (CIA) to submit an affidavit in camera supporting its claim that the covert activity information requested by plaintiffs, if it exists, has "in fact" been properly classified under Executive Order 12,065, 3 C.F.R. 190 (1979), and exemption (b)(1) of the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b)(1) (1976). See Memorandum-Decision and Order of 25 August 1981, at 13, 26. The agency recently submitted its affidavit. Upon reviewing that document, as well as the previous affidavits filed and made public in this case, the Court determines that summary judgment is proper for the defendants on the covert activity issue.

I.

 In its August opinion, the Court identified (b)(1) of the FOIA, 5 U.S.C. § 552(b)(1) (1976), as the appropriate exemption governing this issue. The exemption authorizes an agency to withhold any information that is "(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) (is) in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1) (1976).

 The CIA claims that it can neither confirm nor deny the existence of any covert activity at Syracuse University because the fact of such activity's existence or non-existence is itself protected under Executive Order 12,065. Executive Order 12,065, § 3-505, 3 C.F.R. 190, 199 (1979) ("No agency in possession of a classified document may, in response to a request for the document made under the Freedom of Information Act..., refuse to confirm the existence or non-existence of the document, unless the fact of its existence or non-existence would itself be classifiable under this Order."). No information may be considered for classification unless it falls within one or more of seven specified categories. Id. § 1-301, 3 C.F.R. 190, 193 (1979). At least two categories would clearly apply to covert activity at Syracuse, if it exists: 1-301(c), concerning "intelligence activities, sources, or methods"; and 1-301(e), involving "scientific, technological, or economic matters relating to the national security." Id. For purposes of section 552(b)(1) and the Order, such information is in fact properly classified only if disclosure "reasonably could be expected to cause at least identifiable damage to the national security." Id. § 1-302, 3 C.F.R. 190, 193 (1979). *fn1" The issue, then is whether a statement by the CIA either confirming or denying the existence of covert activity at Syracuse University reasonably could be expected to cause at least identifiable damage to the national security.

 The Court agrees with the CIA's contention that it could. Defendants' explanation is plausible and non-conclusory. The CIA considers its academic contacts "vital sources of intelligence." Affidavit of Don I. Wortman, Deputy Director for Administration and Chairman of the CIA's Information Review Committee, 14 March 1980, at P10 (Wortman Aff.). The types of covert, or confidential, information that the agency gathers from universities and colleges include the following: 1) "foreign intelligence information" collected "from persons who have travelled abroad" and from various experts; 2) "confidential contacts" with university personnel to assist "the recruitment of non-Americans as foreign intelligence sources"; and 3) contractual and consultative information in areas of foreign policy and scientific research and development. Id. Ps6, 7.

 "(Any) documents that would evidence a convert CIA-academic relationship at a particular university would be duly classified in accordance with the requirements of Executive Order 12065 ..." Id. P13. Wortman explains why the CIA feels it must refuse to confirm or deny the existence of covert activities: "Any other response would have the effect of divulging the very secrets the CIA is directed to protect." Id. P14. The Wortman affidavit continues:

 
The academic community is currently the scene of efforts by some activists to prevent the CIA from maintaining any contacts therein. If we were to adopt the practice of official acknowledgment of covert CIA contacts at a particular campus, we must surely anticipate active and abrasive campaigns to discover and expose cooperating individuals at such institutions.
 
... Besides the obvious problems of harassment and resulting discontinuance of source cooperation, acknowledgment of covert CIA involvement at a university could damage the national security and cause severe counterintelligence problems. If a hostile foreign intelligence service were to learn through officially released CIA information that the Agency had covert relationships with academics, programs, or students at a particular American university, the intelligence service might attempt to ascertain the extent of the relationship, the nature of the information exchanged, the amount of cooperation involved, etc. Such an acknowledgment would make the university an intelligence target for that foreign intelligence service. In the case of DCD (Domestic Collection Division), for example, if it were to become publicly known that (the) CIA interviews faculty members at specifically identified universities upon their return from overseas conferences, damaging repercussions could occur: (1) faculty members could become barred from attending certain conferences, especially in Communist bloc countries, if their cooperation with (the) CIA became suspected, thus eliminating a vital CIA intelligence source; and (2) faculty members could become targets of disinformation campaigns by hostile foreign intelligence services, in which case they would return to provide the United States with inaccurate reports, which could alter (the) CIA's analyses, thus harming the national security. In the case of FR (Foreign Resources Division), which has the generally known purpose of contacting foreign students so that when that student returns to his home country he will be disposed to American interests, damaging repercussions both for the United States and possibly innocent foreign students could occur if (the) CIA officially acknowledged that it conducts intelligence recruiting at specific university campuses. If a foreign student's home government were to learn that FR conducts operations at specific campuses then: (1) the foreign government could locate the students who attended that university and attempt to ascertain whether or not the student had cooperated with (the) CIA; (2) could ensure that students who attended certain campuses who were suspect did not enter authoritative government positions; (3) and in certain countries possibly even imprison or otherwise harm students who were suspect. Furthermore, if a foreign government were to learn through official CIA disclosure that FR operates at a specific university, it would be an easy matter for that government to discontinue sponsoring its students at that school. Such events would severly hamper the mission of the Central Intelligence Agency, which, pursuant to statute and Executive Order, is to collect and disseminate foreign intelligence. Finally, these services might also attempt to recruit intelligence sources at the university in order to use them to find out what types of relationships (the) CIA has at the university or to provide them with the results of the research that has been undertaken on the CIA's behalf.

 Id. Ps11-12.

 The Court finds the justification reasonable. Moreover, acknowledgement of covert activities at Syracuse University reasonably can be expected to increase reluctance to cooperate with the CIA in the future. Halperin v. Central Intelligence Agency, 203 U.S. App. D.C. 110, 629 F.2d 144, 149 (D.C.Cir.1980), recognized this reluctance to assist the CIA as a basis for agency nondisclosure. See also Gardels v. Central Intelligence Agency, 510 F. Supp. 977, 978-79 (D.D.C.1981), appeal docketed, No. 81-1567 (D.C.Cir. June 15, 1981). Cf. Military Audit Project v. Casey, 211 U.S. App. D.C. 135, 656 F.2d 724, 741 (D.C.Cir.1981) (upholding CIA's reason for non-disclosure that revealing identities of secret CIA contractors in Glomar Explorer project would make other contractors more reluctant to assist future CIA projects).

 To deny the existence of covert activities at Syracuse also reasonably could be expected to damage national security. To date, "the CIA has received approximately 135 (FOIA) requests seeking information on its relationships with at least 100 universities." Affidavit of Louis J. Dube, Information Review Officer for the CIA's Directorate of Operations, 7 May 1981, at P7. Because of these numerous requests, the agency's denial of covert activities at particular universities or colleges could, by a process of elimination, result in the ultimate identification of those academic institutions where the CIA does maintain covert relationships. Wortman Aff. P14. Like the Gardels court, this Court refuses to view the Daily Orange's request in isolation. "(In) the context of the totality of the "university' requests, ... the CIA's response in connection with any one institution necessarily holds implications for all others." Gardels, supra, 510 F. Supp. at 979. See also Halperin, supra, 629 F.2d at 150: "(The court) must take into account ... that each individual piece of intelligence information, much like a piece of jigsaw puzzle, may aid in piecing together other bits of information even when the individual piece is not of obvious importance in itself." The Wortman affidavit concludes that "(to) the extent that Agency contacts with the academic community are diminished," either by acknowledging covert activities, or because of agency denials at certain institutions that ultimately point the finger of covert activity at other universities, "the national security is correspondingly damaged." Wortman Aff. P10.

 The in camera affidavit strengthens the conclusion that the information here, if it exists, would be properly classifiable. More importantly, the affidavit satisfies this Court that the CIA has "in fact" properly classified the requested information, if it exists, pursuant to Executive Order 12,065's requirements. With this ...


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