of documents is not to be construed as a back door means of implying that such documents exist. Rather, there is an important interest to be served by a policy that does not confirm or deny the existence of documents which would establish the existence of intelligence sources and methods. To do otherwise would mean that the CIA could only refuse to confirm or deny the existence of such documents when such documents actually existed, which would itself be a way of identifying those document requests which had identified intelligence operations.
The CIA has also demonstrated that being forced to disclose the information the plaintiffs request would compromise its intelligence gathering methods. The plaintiffs' request seeks official confirmation of an unconfirmed CIA field station. The CIA argues that such a confirmation could cause a confrontation with the Dominican Republic or the disruption of foreign relations. (Strickland Decl. at PP 13-14, 16-17, 20.) The CIA further argues that public disclosure would destroy the future usefulness of this station, should it in fact exist. (Id. at PP 13, 15.). These reasons demonstrate the dangers of forcing the CIA to make the requested disclosures in this case. See Fitzgibbon, 911 F.2d at 765-67; Daily Orange, 532 F. Supp. at 125.
Moreover, the CIA has demonstrated that even denying the existence of this station could jeopardize national security. If the CIA is forced to deny that bases exist in some locations, the location of existing bases could be pinpointed by a process of elimination. See Daily Orange, 532 F. Supp. at 126. Thus, the CIA's concerns about compromising intelligence methods, to the extent detailed in the CIA's public papers, are sufficient to prevent disclosure of the information requested by the plaintiffs. See Fitzgibbon, 286 U.S. App. D.C. 13, 911 F.2d at 765-67; Daily Orange, 532 F. Supp. at 125. Moreover, the CIA has submitted, in camera, additional information about how the disclosures requested by the plaintiffs would interfere with its intelligence gathering.
That the CIA claims future rather than present harm does not make the CIA's demonstration of harm too speculative. "Agency evaluations of threatened harm in national security FOIA cases are always speculative to the extent that they describe a potential harm rather than actual past harm." Daily Orange, 532 F. Supp. at 127 (citing Halperin, 629 F.2d 144 at 149). Moreover, while a showing of bad faith by the agency could call into question the existence of the harm the agency asserts, there has been no allegation that the CIA has acted in bad faith in this case. See Miller, 730 F.2d at 776 (quoting Military Audit Project, 656 F.2d 724 at 738); see also Daily Orange, 532 F. Supp. at 126.
The CIA has also demonstrated that public disclosure in the Senate Report of some of the information requested by the plaintiffs does not undermine its justifications for refusing to confirm or deny the existence of this information. The CIA argues that countries are willing to tolerate the presence of CIA installations in their country only if the United States does not officially acknowledge that such stations exist. (Strickland Decl. at P14). Thus, confirmation of the existence of such an installation, even by another branch of the federal government, is different from the CIA itself acknowledging the existence of the base. See Fitzgibbon, 911 F.2d at 765-67; Afshar v. Department of State, 226 U.S. App. D.C. 388, 702 F.2d 1125, 1130-31 (D.C. Cir. 1983); Phillippi v. CIA, 211 U.S. App. D.C. 95, 655 F.2d 1325, 1332-33 (D.C. Cir. 1981). Moreover, as explained above, the CIA has a continuing interest in assuring its sources that it will not be the cause of any disclosure of their existence or their identities.
For all of the reasons stated above, the information requested by the plaintiffs is clearly exempt from disclosure under both 5 U.S.C. § 552(b)(1) and 5 U.S.C. § 552(b)(3). Thus, the CIA's motion for summary judgment is granted. The plaintiffs' cross-motion for summary judgment is denied. The Clerk is directed to enter judgment dismissing the Complaint and closing the case.
Dated: New York, New York
November 22, 1996
John G. Koeltl
United States District Judge