The opinion of the court was delivered by: KOELTL
JOHN G. KOELTL, District Judge:
Plaintiffs Earth Pledge Foundation and Fundacion Cultural Dominica filed this action contesting the denial of their Freedom of Information Act ("FOIA") request by the defendant, the Central Intelligence Agency ("CIA"). The parties have now filed cross motions for summary judgment.
Cables and other forms of correspondence between the CIA station in Ciudad Trujillo, Dominican Republic and CIA headquarters in Washington and between the headquarters and that Station between April 1, 1960 and June 5, 1961 pertaining to contacts with dissident elements, hostile to the regime of Rafael Trujillo.
(Complaint at P7, Exhibit A). The CIA denied the request, refusing to confirm or deny either the existence of records responsive to the request, or the existence of such a CIA station. (January 18, 1994, letter from John H. Wright, CIA Information and Privacy Coordinator, attached as Exhibit B to the Complaint). After an internal appeal, on November 14, 1995, the CIA reaffirmed its determination. (November 14, 1995, letter from Edmund Cohen, Chairman, Agency Release Panel, attached as Exhibit D to Affidavit of Theodore W. Kheel, dated June 4, 1996 ("Kheel Aff.")). In refusing to confirm or deny the existence of documents responsive to this request, the CIA relied on two FOIA exemptions, 5 U.S.C. § 552(b)(1) and 5 U.S.C. § 552(b)(3).
Section § 552(b)(1) exempts from disclosure 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 (B) are in fact properly classified pursuant to such Executive Order." The Executive Order issued pursuant to that section requires an "agency to refuse to confirm or deny the existence or non-existence of requested information whenever the fact of its existence is itself classified under this Order." Executive Order 12356 § 3.4(f)(1).
Under section 552(b)(3) a federal agency can withhold matters that are "specifically exempted from disclosure by statute . . .." The CIA asserts that two separate statutes allow non-disclosure of the information requested by the plaintiffs. First, 50 U.S.C. § 403-3(c)(5), the codification of the Central Intelligence Act of 1949, commands that the Director of the CIA shall "protect intelligence sources and methods from unauthorized discovery." Second, 50 U.S.C. § 403(g) exempts the CIA from any laws which "require the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency . . .."
In defending the denial of the FOIA request, the CIA argues that even to confirm or deny the existence of a CIA station in Ciudad Trujillo or the existence or non-existence of the requested documents would compromise the CIA's ability to gather intelligence. (Declaration of Lee S. Strickland Dated May 15, 1996 ("Strickland Decl.") at P11). The CIA further argues that official confirmation that the CIA operated an installation and conducted espionage in a foreign country could cause a diplomatic confrontation and lead to the disruption of foreign relations. (Id. at PP13, 14, 16, 17, 20). According to the CIA, the official disclosure of such an arrangement could cause the foreign country embarrassment, pressure that country into retaliating against the United States, and lead to the termination of that country's relationship with the CIA. (Id. at PP 14, 20). The CIA maintains that it has never acknowledged the existence of a CIA station in Ciudad Trujillo nor has it acknowledged whether it has maintained relationships with political opponents of the former regime in the Dominican Republic.
In response, the plaintiffs argue that the existence of a CIA station in Ciudad Trujillo, the capital city of the Dominican Republic, is already a matter of public record. In support of this assertion, the plaintiffs submitted a copy of Senate Report No. 94-465 dated November 20, 1975. (Senate Report No. 94-465 attached as Exhibit H to Kheel Aff.). This report makes reference to diplomatic cables being exchanged between CIA headquarters in Washington, DC and a CIA station in the capital city of the Dominican Republic. Plaintiffs argued that the CIA cannot justify its denial of plaintiffs' FOIA request based on the need for secrecy in regard to information that is already in the public domain.
The Court requested that the Government submit additional affidavits demonstrating that the CIA's justifications for nondisclosure satisfied FOIA's statutory exceptions. Because the Court recognized that such affidavits could be sensitive and contain confidential information, the Government was allowed to submit the affidavits in camera. Submission of in camera affidavits by the Government is appropriate in a case raising national security concerns where the Government claims that it cannot confirm or deny the existence of documents. See Weberman v. National Security Agency, 668 F.2d 676 (2d Cir. 1982) (rejection of the CIA's right to refuse to neither confirm nor deny the existence of information, without examining in camera affidavits, is an ...