# John Cary Sims v. Central Intelligence Agency, John Cary Sims v. Central Intelligence Agency, Administrator, Stansfield Turner > Court of Appeals for the D.C. Circuit · June 10, 1983 · 709 F.2d 95 URL: https://www.frixlaw.com/law-library/cases/9470724 ## Case - **Full name:** John Cary SIMS, Et Al. v. CENTRAL INTELLIGENCE AGENCY, Appellant; John Cary SIMS, Et Al., Appellants, v. CENTRAL INTELLIGENCE AGENCY, Administrator, Stansfield Turner - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** June 10, 1983 - **Citations:** 709 F.2d 95; 228 U.S. App. D.C. 269; 1983 U.S. App. LEXIS 26883 - **Precedential status:** Published - **Opinion:** Concurring in part by Bork - **Judges:** Edwards, Bork, Fairchild, Seventh - **Cited by:** 8 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9470724 ## Opinion text BORK, Circuit Judge, concurring in part and dissenting in part: While I am in general agreement with much of the majority’s position, I dissent from the holding on one point, decline to join in one statement, and express some doubt concerning the ruling of this court in Sims v. CIA, 642 F.2d 562 (D.C.Cir.1980) (“Sims I”). 1. The court holds that an informant is not an “intelligence source,” even though he sought and received a promise of confidentiality, “if the agency readily and openly could have obtained, from other sources, data of the sort he provided.” Majority opinion at 99. In such cases, the CIA must disclose the informant’s identity in response to a request under the Freedom of Information Act. The majority recognizes that proof of an informant’s demand for and receipt of a pledge of confidentiality would be evidence that the information sup *102 plied is of a sort the CIA could not reasonably expect to obtain without a promise of confidentiality. But the majority is incorrect, I believe, in holding that an informant-solicited promise of secrecy does not automatically qualify the informant as an intelligence source. This seems to me to follow both from precedent and common sense. This court’s opinion in Holy Spirit Ass’n v. CIA, 636 F.2d 838 (D.C.Cir.1980), applied the Sims I definition of “intelligence source,” id. at 844 , and focused on the type of information obtained in explaining its conclusion that certain of the documents at issue were properly withheld because their release would disclose intelligence sources, id. at 844 n. 12 (documents 21, 22, 23, and 39). With respect to at least three of the other documents at issue, however, id. at 844 n. 10 (documents 12, 17, and 31), the court did not focus at all on the type of information given. The court instead stated as its complete explanation of the reason it was proper to withhold the documents that “[t]he Document Disposition Index submitted by the Agency specifically indicates that three of the ten documents are withheld because their disclosure would identify persons who gave information with the understanding that it would be kept in confidence.” Id. at 844 (footnotes omitted). The court in no way suggested that this conclusion was merely evidentiary. It drew no inference about the type of information from the existence of promises of confidentiality. It relied solely on the existence of those promises. Only by straining and by supplying missing language can the Holy Spirit opinion be read as treating a promise of confidentiality as mere evidence. Neither does consistency with the Sims I definition demand that reading. The term “kind” is sufficiently general to encompass cases in which informants believe they need confidentiality before providing the information requested. The Holy Spirit court apparently thought that to be so, and Holy Spirit is as much a binding decision of this circuit as is Sims I. In any event, the majority’s narrow reading of Sims I and Holy Spirit should be rejected not only because it is strained but also because it produces pernicious results. A promise-of-confidentiality test for Exemption 3 seems to me necessary in order for 50 U.S.C. § 403 (d)(3) (1976) to serve its function of “protecting intelligence sources and methods from unauthorized disclosure.” Without it, individuals who give information to the CIA on the understanding that their names will be kept secret cannot rely on the promise of confidentiality if the information turns out to be the sort the CIA can get elsewhere without promising secrecy, something the sources of the information will often not be in a position to know. There is, moreover, no guarantee that a judge, examining the situation years later and deciding on the basis of a restricted record, will come to an accurate conclusion. Reasonable people will differ about such judgments. The CIA and those who cooperate with it need and are entitled to firm rules that can be known in advance rather than vague standards whose application to particular circumstances will always be subject to judicial second-guessing. Our national interest, which is expressed in the authority to keep intelligence sources and methods confidential, requires no less. Many persons who expect pledges of confidentiality to be honored will be shocked to learn, long after they give information in return for such a promise, that their identities will be disclosed. Because of the ever-present possibility of a future breach of trust ordered by the judiciary under the vague standard laid down today, the CIA will probably lose many future sources of valuable intelligence. Moreover, in this very case, retrospective application of a rule interpreting section 403(d)(3) to focus exclusively on the type of information may be profoundly unjust. It will certainly be so if it results in the disclosure of the identities of the six researchers who fully, and justifiably, expected the government to keep its commitment and to protect them from the wide range of dangers that may have concerned them when they insisted on confidentiality. This is not an honorable way for the government of the United States to *103 behave, and the dishonor is in no way lessened because it is mandated by a court of the United States. 2. My second disagreement with the majority opinion is not with any holding but with its gratuitous speculation that “the agency’s desire for secrecy seems to derive principally from fear of a public outcry resulting from revelation of the details of its past conduct.” Majority opinion at 101. We have no basis for that attribution of motive. For one thing, there has already been substantial “public outcry” about MKULTRA as a result of the executive and congressional investigations and reports on the program. More important, there are many reasons more plausible than fear of public outcry for the CIA’s resistance to releasing the names of the researchers. Among them are a desire to live up to commitments of confidentiality the CIA made or believes it made many years ago, even if those commitments cannot be proven; desire to protect from harm and embarrassment individuals who were witting or unwitting sources for the CIA; belief that breaching past trusts will endanger its future ability to attract potential intelligence sources; and belief that revelation of the identities of the researchers could aid foreign intelligence operations in discovering sensitive information. What is perhaps oddest, however, about the majority’s speculation about the CIA’s motives for resisting disclosure is that the CIA may yet prevail on the merits of the case, thus vindicating its position. In any event, the CIA’s litigating position is hardly frivolous, and disagreement with the CIA’s assessments either of its intelligence needs or of its legal obligations is insufficient reason to cast doubt on the CIA’s good faith belief in those assessments. In these circumstances, it is inappropriate for the court to suggest that the CIA’s position was adopted in bad faith. 3. With the exceptions just discussed, I concur in the court’s opinion. I do so, however, only because we are bound by the definition of “intelligence source” given in Sims I. Were we free to reconsider that definition, I might adopt a different one. Since we have not had the benefit of briefing and argument on this question, I do not state flatly that a different definition should be adopted, but the matter is troublesome enough to warrant a word or two. I will not here fully analyze the weaknesses I find in the Sims I definition or in the analysis supporting the definition. I will focus instead on what I regard as the central difficulty. It seems to me that “the practical necessity of secrecy,” on which the Sims I court relied in deriving its construction of section 403(d)(3), requires that the CIA’s interest in information be protected from disclosure. I know of no reason to think that section 403(d)(3) was meant to protect sources of information only if secrecy was needed in order to obtain the information. It seems far more in keeping with the broad language and purpose of that provision to conclude that it authorizes the nondisclosure of a source of information whenever disclosure might lead to discovery of what subjects were of interest to the CIA. One need not be an expert in intelligence work to know that it is often possible to deduce what a person is doing, thinking, or planning by knowing what questions he is asking or what information he is gathering. That is true even when the answers and information are publicly available. The mere fact that the CIA pursues certain inquiries tells our adversaries much that there is no reason to think Congress intended them to know. Accordingly, if presented the opportunity to reconsider Sims I, I would consider adopting a definition of “intelligence sources and methods” — separating the two components of the phrase artificially narrows a statute probably intended to be quite sweeping in its authorization of secrecy — that focuses not solely on the need for secrecy in gathering information but also on the need for secrecy about what information is sought. Under such a definition, public availability of information and the lack of any need to promise confidentiality to obtain it would be no ground for finding the identity of an information source subject to disclosure. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9470724. Public record. Not legal advice.