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TIMES NEWSPAPERS OF GREAT BRITAIN, INC. v. CIA

May 28, 1982

TIMES NEWSPAPERS OF GREAT BRITAIN, INC., Plaintiff,
v.
The CENTRAL INTELLIGENCE AGENCY, et al., Defendants



The opinion of the court was delivered by: LASKER

This case arises out of the death of David Shipley Holden, the former Chief Foreign Correspondent for The Sunday Times of London. Holden is alleged to have been murdered in Cairo, Egypt in December, 1977. After official inquiry into the death failed to lead to an arrest, the newspaper began its own investigation.

In the course of the investigation, the American affiliate of the London Times, Times Newspapers of Great Britain, Inc., ("the Times") filed a request with the Central Intelligence Agency ("CIA") pursuant to the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA") for documents concerning Holden and two persons with whom Holden had become acquainted while in college, Surindar Suri and Dr. Leo Silberman. Silberman died in 1960; Suri's whereabouts were unknown to the Times.

The Times wrote repeatedly to the CIA, requesting a response to its FOIA request. After sixteen months of waiting for a response, the Times filed this action. Several months later, the CIA provided the Times with an index to the thirty-three documents which it had retrieved in the course of its search. Thirty-one of the thirty-three documents were withheld either wholly or in part. The CIA also turned over several documents, discovered in the search of its files, to the Federal Bureau of Investigation ("FBI"), the Department of State, and the National Security Agency ("NSA") for decision by those agencies as to whether the documents at issue should be disclosed. The FBI, State Department and NSA each denied plaintiff's request as to the documents referred to them. The Times appealed each of the decisions; all of the appeals were denied.

 The Times moves for an in camera inspection by the Court of the withheld documents and the government moves for summary judgment pursuant to Fed.R.Civ.Pr. 56.

 As indicated in fuller detail below, the government relies primarily on the national security exemption, § 552(b)(1) of the Act. It argues that withholding the documents is in the interests of "national defense or foreign policy" as defined by § (b)(1) and Executive Order 12065, and that the documents are accordingly exempt from disclosure. The government also relies on exemptions (b)(3) (the collateral statute exemption); (b)(7)(C) (the privacy exemption); (b)(7)(D) (the confidential source exemption); and (b)(6) (the exemption for personnel, medical or "similar" files). Affidavits have been submitted by officials of each of the agencies involved, explaining the reasons for the agencies' decisions to withhold the documents. The government asserts that the affidavits provide the court with sufficient factual basis to uphold the claimed exemptions, and that in camera inspection is therefore unnecessary and unwarranted.

 The Times answers that the government's affidavits are vague and conclusory, leaving the court unable to make a determination as to the applicability of the claimed exemptions without in camera inspection of the documents. Moreover, the Times argues that the fact that most of the documents withheld are over twenty years old suggests that it is particularly inapt for the government to rely on conclusory allegations of national security. Furthermore, the Times contends that where, as here, the time required for an in camera inspection would be minimal, there being only 42 documents in dispute, the concerns with burdening the court, relied on in many decisions which have denied applications for in camera inspection, are not present.

 The government has submitted the disclosed portions of those documents which were partially disclosed. Most of those documents appear to concern Dr. Silberman: that is, several are memorandum which state "Subject: Silberman, Leo," and others appear, at least from the disclosed portions, to concern only him. After having reviewed the disclosed portions of the documents and the government affidavits, the following rulings are made with respect to the claimed exemptions.

 I. Section 552(b)(1)-The National Security Exemption

 The government relies primarily on section 552(b)(1), which exempts from disclosure those matters that 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 Executive Order." The Executive Order pertaining to classification of information on national security grounds is Executive Order ("EO") 12065, 43 Fed.Reg. 28949, published July 3, 1978. EO 12065 provides for the classification of information concerning certain categories of national security, including foreign government information; intelligence activities, sources, and methods; and foreign relations or foreign activities of the United States. EO 12065 § 1-301(b)-(d). However, even within the listed areas of national security, documents may not be classified pursuant to EO 12065 unless the classification authority determines that "unauthorized disclosure (of the document) reasonably could be expected to cause at least identifiable damage to the national security." EO 12065 § 1-302.

 The first prong of the (b)(1) exemption is easily met: The government's affidavits establish that the documents sought to be exempted pursuant to 552(b)(1) have been classified pursuant to EO 12065. The question that remains is whether the documents are "in fact properly classified pursuant to such Executive Order" 5 U.S.C. § 552(b)(1). The nub of the problem is the requirement of EO 12065 that disclosure "reasonably could be expected to cause at least identifiable damage to the national security."

 The government bears the burden of establishing that the exemption is proper, and the Court is authorized to examine the documents in camera if the government's affidavits are inadequate to sustain the burden. 5 U.S.C. § 552(a)(4)(B). See Holy Spirit Ass'n v. United States Department of State, 526 F. Supp. 1022, 1025 (S.D.N.Y.1981) (Weinfeld, D. J.)

 The law in this Circuit provides for a "restrained exercise of discretion with respect to in camera inspection," Lead Industries Ass'n v. OSHA, 610 F.2d 70, 87 (2d Cir. 1979) (Friendly, J.). The agency's action in withholding material will be upheld if its affidavits: (1) "describe with reasonable specificity the nature of the documents at issue and the claimed justification for nondisclosure;" and (2) "indicate that the requested material logically falls within the claimed exemption." Holy Spirit, supra, at 1025. In other words, the court is to defer to the agency's decision where the agency has been reasonably specific in explaining why the documents should not be disclosed, and where, under all the circumstances, the agency's action appears to make sense.

 The Times' contentions that the affidavits are vague and conclusory are belied by the amount of detail which they contain. The CIA affiant, Louis J. Dube, has listed each document withheld wholly or in part and explained the asserted need for secrecy as to each portion withheld. For example, Document No. 1, a report dated June 30, 1952, "contains information on Leo Silberman received from a sensitive source" which was withheld in order to "protect the confidential relationship with and information provided by that intelligence source." (Dube Affidavit at 16). Similarly, Document No. 4, a dispatch dated January 22, 1958, contains information from a foreign CIA station concerning Silberman, and was withheld because "any further release would undoubtedly identify the CIA officer (involved) and the method by which the information was gathered." (Dube Affidavit at 16). Each of the documents withheld is described in similar detail, and it would appear that the government has thereby borne its burden to describe the documents and the claimed justification for their nondisclosure in reasonable detail.

 However, the question whether the withheld material "logically falls within the claimed exemption" is more difficult. The government takes the position that because the material relates to national security, the court should defer to the government's decision, citing Klaus v. Blake, 428 ...


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