Petition — Goland v. Central Intelligence Agency
Supreme Court brief1980
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* Supreme Cour, US,
FILED
JUN 26 1979
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IN THE :
Supreme Court of the United States
OctoBER TERM, 1978
wv %8-1924
Susan D. GoLanp
and
Patricia B. Sxipmore, Petitioners,
V.
CENTRAL INTELLIGENCE AGENCY, et al., Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Of Counsel: JAMES H. WALLACE, JR.
THomas C, ARTHUR
Mark H. Lyncw
; : 1776 K Street, N.W.
— Washington, D.C. 20006
Washington, D.C. 20003 Attorneys for Petitioners
ALAN B. Morrison
Davin C. VLADECK
Suite 700
2000 P Street, N.W.
Washington, D.C. 20036
June 26, 1979
Press or Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.
TABLE OF CONTENTS
I te ry is ee el hea a eke
I Ne Fea
ee ey ee cee eneceeesesbeees
Statute and Federal Rule of Civil
Procedure
RSD a RR ai a
Reasons for Granting the Writ................
b The Ability of Government Agencies
to Create a Tenth Exemption to
the Freedom of Information Act by
Adopting Limited Definitions of
"Agency Records" Poses a Funda-
mental Question of the Scope of the
Act Upon Which the Lower Courts
have
Rendered Conflicting Opinions.....
ll. The Decision Below Raises the Sig-
nificant and Recurring Issue Whether
Basic
Sarial
Summary Judgment and Adver-
Principles Apply to the Reso-
lution of Factual Disputes in So-
Called "National Security" Cases
Arising under the Freedom of Infor-
as FE EMO 8 or u's oa 4 Kk 4 0 0s be
Conclusion
2a eS ee oe ee. oe 8 2 Oe 6 O96 2.06 82 64 GD OD 8 6 6 0-0 6 6 06
13
17
20
Appendix A, Opinion of the United States
Court of Appeals for the District of
Columbia Circuit, May 23, 1978..........
Appendix B, Opinion of the United States
Court of Appeals for the District of
Columbia Circuit, March 29, 1979........
Appendix C, Order of the United States
Court of Appeals for the District of
Columbia Circuit Denying Petitioner's
Request for Rehearing en banc..........
Appendix D, Order and "Findings of
Fact" of the United States District
Court for the District of Columbia,
OA, Bae eee
Appendix E, Freedom of Information Act,
Se SCENES 5 Ws, ao 6 ahd he oe bk O68 8
Appendix F, Rule 56, Federal Rules of
eer Wa Pas 5 os MN Aww MOST SOW 0 Bi
TABLE OF AUTHORITIES
Cases:
Adickes v. S.H. Kress & Co.,
. £S Me Fy. : errr rr ere 17
Bell v. United States,
eR Oe wer Be ee oy ) eee * 18
Brandon v. Eckard,
569 F.2d 683 (D.C. Cir. 1977).......... 17-19
Ciba-Geigy Corp. v. Mathews,
428 F. Supp. 523 (S.D.N.Y.)........... 14
Forsham v. Califano,
587 F.2d 1128 (D.C. Cir. 1978), cert.
granted, 47 U.S.L.W. 3740 (No. 78-1118,
Ws WD bass nea nned sinned aswennes 15-16
Kissenger v. Reporters Committee for Free-
dom of the = No. 78-1207,
(D.C. Cir. 1978), cert. granted,
47 U.S.L.W. 3677 (Nos. 78-1088
and 78-1217, April 16, 1979)............ 15-16
Nichols v. United States,
325 F. Supp. 130 (D. Kan. 1971), eee
aff'd, 460 F.2d 671 (10th Cir.), cert.
Geried, 400.U.S. FGB CIG72) «occ cesses: 13-14
United States v. Diebold, Inc.,
i ae SAD Cs vad wok wenaedan kde 17
Vaughn v. Rosen,
484 F.2d 820 (D.C. Cir. 1973), cert.
Geniad, 405 U.S. S77 CUSTA).. 006 2c cenes. 18
Weisburg v. United States Department of
Justice, 543 F.2d 308 (D.C. Cir. 1976). .17-18
Weissman v. CIA,
ES £ Bibs Ro «Mle. | 2% Wreeeerpeeeee 18
Statutes and Regulations:
ee a oc As co kaversecakey 4
0h. 6, AO oii ino Sev css een ecs se 19
503.0. 5 GOO): 6 os Aedes 4
5 U.S.C. § 552(a)(6)(A)(ii)... 2... eee ee eee 5
Ee Set S| Rene ane ene aan ae 9,15
ES eo See Pe ial ee en ee 3
ge Me MRR IMEI iee tated eee glare nti 13
ee. 6 OS. oc a 6,8
Pewee, 6 ONS 6 aes 6,8
aE eae
Federal Rules of Civil Procedure
Miscellaneous:
Final Report of the Select Committee to
Study Government Operations With
Respect to Intelligence Activities,
S. Rep. 94-755, 94th Cong., 2d
Sess. (1976)
10 Wright & Miller, Federal Practice and
Procedure (1973)
2 SS 2S SG OR O26 8 OS BO 6 OO Ee 6 6 6 O66 Oe
,S@ 88 GF OH OB O24 8 8.6 dO 8468 0 @
In the
SUPREME COURT OF THE UNITED STATES
October Term, 1978
No.
Susan D. Goland
and
Patricia B. Skidmore,
Petitioners,
Vv.
Central Intelligence Agency, et al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Petitioners Goland and Skidmore pray for a
writ of certiorari to review the opinions and judg-
ments of the United States Court of Appeals for
the District of Columbia Circuit entered in this
case on May 23, 1978 and March 28, 1979.
This Freedom of Information Act case arose
out of Petitioners' efforts to obtain secret hearing
transcripts and other non-public legislative his-
-2-
tory materials to delineate the proper scope of the
Central Intelligence Agency's activities under its
1947 and 1949 organic statutes. Although Con-
gress passed the FOIA to facilitate the uncovering
of "secret law," the Court of Appeals in this case
has provided recalcitrant agencies with a blue-
print for thwarting similar attempts to discover
secret legislative history.
The Court of Appeals has permitted the CIA
to withhold a secret hearing transcript on the un-
substantiated theory that it is under exclusive
Congressional "control," and is thus not a CIA
"record" subject to the FOIA, although it has
been in the CIA's possession for over 30 years.
The Courc of Appeals also approved the use of
summary judgment to foreclose Petitioners' at-
tempts to challenge the CIA's self-serving affi-
davits through discovery. It reaffirmed that
holding even in the face of the CIA's belated dis-
closure, after the first decision in its favor, that
it had discovered five months earlier over 300
responsive documents, the existence of which
these same affidavits had denied.
This case thus presents important issues as
to the scope and judicial administration of the
Freedom of Information Act.
- 3-
OPINIONS BELOW
The opinions of the Court of Appeals, not
yet officially reported, are reprinted as Appen-
dices A (pp. 1a-57a, infra) and B (pp. 59a-85a,
infra). The order of the Court of Appeals
denying Petitioners' suggestion for rehearing
en banc is reprinted as Appendix C (pp. 87a-88a,
infra). The District Court's unreported order
aid acecinpaeyine "Findings of Fact" are re-
printed as Appendix D (pp. 89a-92a, infra).
JURISDICTION
The judgment of the Court of Appeals was
entered on May 23, 1978. Petitioners' timely peti-
tion for rehearing, and suggestion for rehearing
en banc, were denied on March 28, 1979. This
petition for certiorari was filed within ninety days
of that date. This Court's jurisdiction is invoked
under 28 U.S.C. § 1254(1).
QUESTIONS PRESENTED
IF May an agency define "records" subject
to disclosure under the Freedom of Information
Act to exclude a document in its possession on
the ground that it was originally produced by a
third party not subject to the Act?
- 4-
2. May summary judgment be granted in
favor of a government agency in a so-called "na-
tional security" FOIA case, based solely on its
self-serving affidavits, when the opposing party
has been denied any opportunity to challenge
those affidavits through discovery or other adver-
sarial procedures?
STATUTE AND FEDERAL RULE
OF CIVIL PROCEDURE INVOLVED
This case involves the Freedom of Informa-
tion Act, 5 U.S.C. § 552 (Appendix E, pp. 93a-
95a, infra) and Rule 56, Fed. R. Civ. P. (Appen-
dix F, pp. 97a-99a, infra).
STATEMENT OF THE CASE
This case involves Petitioners' FOIA request
for secret, unpublished hearing transcripts and
other documents concerning the legislative history
of the CIA's organic statutes.! The CIA's tardy
response* denied the existence of any secret
1 Petitioners' FOIA request was reprinted at
page 12 of the Joint Appendix filed in the Court
of Appeals (hereinafter cited as "JA __").
2 Despite the 10-day deadline for responding to
FOIA requests (5 U.S.C. § 552(a)(6)(A)(i)), the
CIA responded to this request only after Peti-
tioners had filed an administrative appeal
(JA 20). Petitioners supplemented their appeal
in light of the CIA's late response (JA 23).
- 5 -
legislative history materials except for a 1947 se-
cret transcript ("Hearing Transcript"), which was
alleged to be a “legislative document under the
control of the House of Representatives," and of-
fered to make available to Petitioners only a set
of five published hearings and reports, totaling
65 pages (JA 22). The CIA never responded to
Petitioners! administrative appeal, despite the
statutory requirement that such appeals be an-
swered within 20 working days.* Petitioners filed
suit on January 28, 1976, seeking disclosure of
the Hearing Transcript and any other unidentified
responsive documents.
Six weeks after the complaint had been filed,
the CIA, alleging that it had "recently identified"
two additional documents which "had not pre-
viously been located," delivered to Petitioners’
counsel two statements used in hearings, one
35 U.S.C. § 552(a)(6)(A)(ii). The CIA had
been similarly unresponsive to the predecessor
FOIA request of Petitioners’ associate, Sara Holtz,
for the CIA's secret legislative history. First,
the CIA told Ms. Holtz that the only responsive
documer*s were publicly available -in_ libraries
(JA 15). When she pointed out in her appeal the
existence of secret hearings for which no public
transcripts were available, the CIA denied her
appeal on the ground that "no records were de-
nied to you," although admitting for the first time
the existence of the Hearing Transcript (JA 16).
- 6-
of which ("the Hillenkoetter Statement") with ap-
proximately 20-25% of the contents deleted
(JA 129).
Petitioners attempted to take discovery to
challenge the CIA's withholding of the Hearing
Transcript and the Hillenkoetter Statement, and
the adequacy of the CIA's search for responsive
documents (JA 27-38). Rather than responding
to any of these discovery requests, the CIA
moved for summary judgment based upon self-
serving affidavits alleging (1) that it had made an
adequate search for all responsive documents,
(2) that the Hearing Transcript “appeared" to
have been delivered to the CIA with a Congres-
sional mandate to keep it secret although no ex-
press instruction to that effect appeared on the
document and the CIA affidavits provided no par-
ticulars concerning the document's transfer to the
CIA, and (3) that the Hearing Transcript and the
withheld portions of the Hillenkoetter Statement
were covered by Exemptions 1 and 3 of the FOIA,
since both had been properly classified and their
disclosure would reveal intelligence sources and
methods in violation of 50 U.S.C. §§ 403(d)(3)
and 403(g) (JA 75-82).
In response, Petitioners filed two Rule 56(f)
affidavits stating that, if their discovery were
allowed, they would demonstrate the existence of
ee
-J-
material issues of fact with respect to the allega-
tions in the CIA's affidavits (JA 154-58, 176-80).
In particular, Petitioners pointed out that the
Final Report of the so-called "Church Committee"?
cited numerous documents which appeared to
be within the scope of their FOIA request
(JA 178-80).
Despite these obvious factual disputes, the
District Court granted the CIA's summary judg-
ment motion, issuing "Findings of Fact" that
(1) the withheld portions of the Hillenkoetter
Statement were properly classified, (2) the Hear-
ing Transcript was “a Congressional document re-
leased to the CIA for limited purposes only"
because "it was marked 'Secret' by Congress and
remains within the control of Congress," and
(3) "the CIA has made a full search in good faith
and... no _ further discovery is_ justified"
(App. D at 91a-92a). The District Court made no
ruling on Petitioners' request for attorneys' fees
(id. ).
The Court of Appeals affirmed by a 2-1
vote. Judge Wilkey's majority opinion held that
the CIA's affidavits were adequate to establish as
a matter of law that (1) the Hearing Transcript
4 Final Report of the Select Committee to Study
Government Operations With Respect to Intelli-
gence Activities, S. Rep. 94-755, 94th Cong., 2d
Sess. (1976).
=
was not a CIA record, despite being in the CIA's
possession for more than 30 years, on the theory
that it was the "property" under the "control" of
Congress (App. A_ at 7a-14a); (2) the Hillen-
koetter Statement deletions were properly withheld
under Exemption 3 because covered by 50 U.S.C.
§§ 403(d)(3) and 403(g) (id. at 15a-23a);5 (3)
the CIA had made an adequate search for respon-
sive documents (id. at 23a-31a); and (4) Peti-
tioners' were not entitled to attorneys' fees (id.
at 32a-33a).
Judge Bazelon dissented. First, he agreed
with Petitioners "that the grant of summary judg-
ment to the CIA was premature" in the absence of
any opportunity for discovery or other adversar-
ial testing of the CIA's ipse dixit allegations (id.
at 35a-39a). Second, he disapproved the ma-
jority's proposed "control/property" test for
determining whether a responsive document was
an “agency record" covered by the Act. Pointing
out that “federal agencies regularly receive docu-
ments created by non-agencies that obviously
° The District Court had relied instead on Exemp-
tion 1 (App. D at 91a). The panei majority did
not rule upon this ground for _ withholding
(App. A at 16a). Judge Bazelon in his dissent
Stated his opinion that the District Court erred in
granting summary judgment on this ground in the
absence of discovery (id. at 82a-83a).
» § -
become ‘agency records' in the ordinary course,"
he stated that the proper question under the
FOIA for any document in an agency's possession
was whether Congress had decided to exempt it
under one of the nine specific exemptions in
5 U.S.C. § 552(b) (id. at 39a-47a).®
By letters dated May 30 and 31, 1978, the
CIA's Justice Department counsel informed Peti-
tioners and the court that the CIA had informed
him that it had discovered "a sizeable amount" of
additional documents responsive to Petitioners'
FOIA request. The letters did not specifiy either
the extent of this discovery or its surrounding
circumstances. On June 14, 1978, the CIA re-
leased 30 of these documents. The _ following
week, on June 23, 1978, the CIA released an
additional 291 documents, and supplied the court
with a letter from its associate general counsel to
its Justice Department lawyers which attempted to
6 Judge Bazelon also observed that "even assum-
ing the ‘'control/property' standard is the correct
one, factual ambiguities in the record would pre-
clude summary judgment" as "discovery is neces-
sary specifically to determine whether Congress
or the committee that conducted the hearings ever
instructed the CIA to preserve the secrecy of the
transcript, and, if so, for how long." The CIA
itself had conceded that "the transcript itself con-
tains no such express instruction, and... the
source of the ‘'Secret' classification is unknown."
(App. A at 46a).
» 46 -
explain the CIA's delay in disclosing the existence
of these documents.
This letter revealed that the documents had
been found by the CIA's librarian, "who had some
personal familiarity with the Goland case and thus
recognized that some of the documents .
might have some bearing on the Goland litiga-
tion . . . ." (quoted at App. B at 62a). She
"immediately (i.e., in late November or early
December 1977) informed the General Counsel, the
Deputy General Counsel and the undersigned" of
her discovery (id.). Rather than immediately
informing the court or the CIA's Justice Depart-
ment attorneys, however, these three top CIA
legal officers did nothing while their librarian
took four months to examine and sort the docu-
ments, and revealed the existence of these highly
relevant documents only after the initial decision
in the CIA's favor. (ld. at 62a-63a).
In the meantime, Petitioners on June 6, 1978
had filed a timely petition for rehearing and sug-
gestion for rehearing en banc, arguing that the
majority decision was contrary to basic summary
judgment principles and created a "tenth exemp-
tion" by its misconstruction of the term "agency
records." The CIA's March 30 and 31, 1978
letters were cited, but not heavily relied upon, in
that petition, as the CIA had yet to detail the
- 11 =
extent of its discoveries or the circumstance of
its non-disclosure.
In response to the CIA's June 14 ietter,
however, Petitioners on June 16, 1978 filed a mo-
tion to summarily vacate the original panel deci-
sion, as the CIA's disclosure of 30 responsive
documents dramatically illustrated the error of
resolving the case on the CIA's untested affi-
davits. This motion was closely followed by the
CIA's release of the other 291 documents, and its
attempted explanation of its five-month delay in
disclosing the existence of these highly relevant
documents.
On March 28, 1979, the Court of Appeals de-
clined to rehear the case en banc, Judge Bazelon
dissenting, and the original panel issued an opin-
ion denying the petition for rehearing and the
motion to summarily vacate the original decision.
In a per curiam decision, the majority reaffirmed
its initial decision. The majority stoutly main-
tained that "the mere fact that additional docu-
ments have been discovered does not impugn the
accuracy of the [CIA] affidavits." (App. B
at 65a). The majority stated that those affidavits
had correctly stated that the CIA had made an
adequate search, relying on the CIA's June 14
and 23 letters to hold that the CIA could not
have found the newly-discovered documents in the
course of a normal search (id. at 65a-66a). The
- 12 -
court then went on to mischaracterize the issue
before it as whether it should reverse its prior
decision on the basis of "newly discovered evi-
dence," rather than whether its original decision
was .now dramatically illustrated to be wrong
under commonly accepted summary judgment prin-
ciples. (Id. at 65a-66a). The majority § did
reverse its prior denial of attorney's fees, re-
manding the case to the District Court for a
reconsideration of that issue. (ld. at 76a-77a).
Once again, Judge Bazelon dissented, stating
his belief "that both the disclosure of 321 addi-
tional documents and the circumstances surround-
ing their discovery cast serious doubt on the
original disposition of this case." (ld. at 79a).
He specifically dissented from the majority's
factual finding that the original CIA affidavits
had been accurate: "To my mind, this is a ques-
tion of fact that cannot possibly be decided on
the record before us." While the CIA's letter
“representations may well be true. . . at this
stage of the litigation they are simply ex_ parte
representations." (ld. at 82a). Thus, the
majority's extreme reluctance to permit
plaintiffs to explore the factual basis of
the CIA's assertions thus repeats the
basic error of the original panel opinion.
The majority again prematurely fore-
closes plaintiffs' inquiry into the nature
of the CIA's search in response to the
FOIA request. (ld., footnote omitted).
- 13 -
REASONS FOR GRANTING THE WRIT
|. THE ABILITY OF GOVERNMENT AGENCIES
TO CREATE A TENTH EXEMPTION TO THE
FREEDOM OF INFORMATION ACT BY ADOPT-
ING LIMITED DEFINITIONS OF "AGENCY
RECORDS" POSES A FUNDAMENTAL QUES-
TION OF THE SCOPE OF THE ACT UPON
WHICH THE LOWER COURTS HAVE REN-
DERED CONFLICTING OPINIONS.
The Freedom of Information Act contains no
definition of "agency records" subject to the Act's
disclosure provisions. This statutory deficiency
will continue to encourage agencies to evade the
Act by construing that term narrowly, thus en-
gendering needless litigation unless this Court
provides an authoritative definition.
The lower courts have been hindered in
FOIA litigation because of the Act's failure to
define “agency records." E.g., Nichols v.
United States, 325 F. Supp. 130, 134 (D. Kan.
1971), aff'd, 460 F.2d 671 (10th Cir.), cert.
denied, 409 U.S. 966 (1972). Nevertheless, the
court in Nichols and other lower courts have been
forced to attempt to define the term in order to
resolve litigation. Not surprisingly, a variety of
conflicting definitions has resulted.
Thus, for example, the Nichols court, after
reviewing the terms of agency regulations, the
definition of records in 44 U.S.C. § 3301 and
- 14 -
available case law, finally resorted to "a diction-
ary of respected ancestry for a reasonably accu-
rate meaning of the word" since "no better defini-
tion of the term, 'record', is provided by legisla-
tive enactment, executive order or controlling
judicial determination . .. ." Nichols v. United
States, supra, 325 F. Supp. at 135. Another dis-
trict court has defined the term to include docu-
ments owned by the government or "subject to
substantial Government control or use." Ciba-
Geigy Corp. v. Mathews, 428 F. Supp. 523, 529
(S.D.N.Y. 1977).
The courts of appeals have been similarly
confused. The Ninth Circuit has attempted a
functional definition designed to serve the basic
disclosure principles of the Act: documents
which deal with the "structure, operation, and
decision-making procedure of the various govern-
mental agencies." SDC Development Corp. v.
Mathews, 542 F.2d 1116, 1119 (9th Cir. 1976).
Various panels of the D.C. Circuit have taken in-
consistent approaches. The panel majority in this
case approved the CIA's definition which excludes
even documents in the conceded possession of the
agency for over 30 years, based on a test which
turns on whether the document is under the "con-
- 15 -
trol" of or is the "property" of the agency or a
third party not subject to the Act.?
Another panel of the court, however, goes
precisely the other way, stating that the "govern-
ing principle is that only if a federal agency has
created or obtained a record (or has a duty to
obtain the record) in the course of doing its
work, is there an agency record that can be de-
manded under FOIA." Forsham v. Califano,
987 F.2d 1128, 1136 (D.C. Cir. 1978), cert.
granted, 47 U.S.L.W. 3740 (No. 78-1118, May 14,
1979) (footnotes omitted). Acting on a similar
definition, yet another panel of the D.C. Circuit
even ordered former Secretary of State Kissinger
to return documents to the State Department for
processing under an FOIA request. Kissenger
v. Reporters Committee for Freedom of the Press,
? The majority opinion was obviously motivated by
the majority's avowed policy decision that Con-
gress should be permitted to submit documents to
agencies in secret (App. A at 8a-14a). This case
does not present the issue whether Congress has
power under the Constitution to use executive
branch agencies as warehouses ffor its secret
documents. Congress obviously has the power to
pass a statute so providing, but has not done so.
The issue here is whether, in the absence of any
clear statement of Congressional intent, Congress
intended for documents in the possession of an
agency to be exempt from the FOIA even though
not falling within one of the nine exemptions of
7 U.S.C. § S6et0).
» % ~
No. 78-1207 (D.C. Cir. 1978), cert. granted,
47 U.S.L.W. 3677 (Nos. 78-1088 and 78-1217,
April 16, 1979).
As this court has recognized by granting
certiorari in both Kissenger and Forsham, the
question of the definition of "agency records"
under the FOIA requires definitive resolution by
this Court. Those cases alone, however, do not
adequately present the issues posed by the Act's
failure to define this term. Review of this case
is also necessary if these issues are to be defini-
tively resolved. In Forsham and Kissenger, the
specific question presented is whether the FOIA
applies to records which reside outside an agency
covered by the Act, but are arguably within its
control. In this case, the converse question is
presented, that is, whether the FOIA applies to
documents in the custody and possession of an
agency, but arguably subject to property rights
or control by a third party not subject to the
Act.
Finally, this case has great practical impor-
tance. As Judge Bazelon noted, should the ma-
jority's restrictive definition of "agency records"
stand, the result wili be the creation of an
extra-statutory "tenth exemption" which agencies
can use to withhold otherwise disclosable docu-
ments (App. A at 43a n.12).
- 1/7-
ll. THE DECISION BELOW RAISES THE SIGNIFI-
CANT AND RECURRING ISSUE WHETHER
BASIC SUMMARY JUDGMENT AND ADVER-
SARIAL PRINCIPLES APPLY TO THE RESO-
LUTION OF FACTUAL DISPUTES IN SO-
CALLED "NATIONAL SECURITY" CASES
ARISING UNDER THE FREEDOM OF INFOR-
MATION ACT.
Numerous decisions of this Court have estab-
lished the black letter principle that summary
judgment may not be granted unless the moving
party establishes that there are no issues of ma-
terial fact, even after all inferences from the
record have been drawn in favor of the opposing
party. See, e.g., Adickes v. S.H. Kress & Co.,
398 U.S. 144, 158-61 (1970); United States v.
Dieboid, Inc., 369 U.S. 654, 655 (1962). See
generally 10 Wright & Miller, Federal Practice and
Procedure § 2727 (1973). It is also black letter
law that Rule 56(f), Fed. R. Civ. P., entitles a
diligent opposing party to defeat a summary judg-
ment motion by means of an affidavit alleging that
factual issues exist but that, without discovery,
he cannot present verified facts in his opposition
to the motion. Adickes v. S.H. Kress & Co.,
supra, 398 U.S. at 160-61. See generally Wright
& Miller, supra, §§ 2740-41.
In general, the lower courts have followed
these elementary summary judgment principles in
FOIA cases. See, e.g., Brandon v. Eckard, 569
- 18 -
F.2d 683, 688-89 (D.C. Cir. 1977); Weisberg v.
United States Dep't of Justice, 543 F.2d 308
(D.C. Cir. 1976). In addition, the lower courts
have generally mandated other procedural re-
quirements, such as the preparation of detailed
indices of withheld documents, to overcome the
barriers to full adversary proceedings which are
inherent in FOIA litigation, where only one of the
contending parties has actual knowledge of the
contents of the disputed document. E.g.,
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.
1973), cert. denied, 415 U.S. 977 (1974).
Yet in a disturbing number of so-called "na-
tional security" cases arising under Exemptions 1
and 3, the lower courts have abandoned these
fundamental principles, and resolved cases with-
out any acversarial testing of the contents of
agency affidavits by in camera inspection. or
otherwise. E.g., Weissman v. CIA, 565 F.2d
692, 697 (D.C. Cir. 1977); Bell v. United States,
563 F.2d 484 (1st Cir. 1977).
The majority opinion below is the epitome of
this disturbing trend. Petitioners were given no
opportunity to test the CIA affidavits by dis-
covery, despite their vigorous attempts to do so
and disturbing indications from the Church Com-
mittee's report that the CIA affidavits were
wrong. Instead, in flat violation of Rule 56(f),
» Ho
the District Court, and later the Court of
Appeals, reached out to resolve the disputed fact
issues in favor of the CIA, completely contrary to
the general rule that all inferences are drawn in
favor of the opposing party.
Obviously, if such litigative procedures are
to be countenanced, the requirement of the FOIA
that the District Court conduct a de novo review
(S U.S.C. § 552(a)(4)(B)) will be negated in so-
called "national security" cases under Exemptions
1 and 3. Yet Congress amended the Act in 1974
with the express purpose of tightening up both
Exemptions 1 and 3. In Exemption 1 cases, Con-
gress required the district courts to conduct
de novo review of allegedly classified materials to
determine if their classification was valid on both
procedural and substantive grounds. Congress
amended Exemption 3 to limit it to statutes which
specifically mandated withholding of specified
documents or which contained specific criteria for
agency withholding. Whether a document was
covered by such a statute was to be subject to
de novo judicial review. See Pub. L. No. 93-502
(Nov. 21, 1974); see also Brandon v. Eckard,
supra, 569 F.2d at 688-89 & n.21. Resolving
questions of the applicability of these two excep-
tions on the CiA's untested say so, as the Court
of Appeals has done here, negates the Concres-
sional intent behind these amendments.
- 20 -
Accordingly, this case presents important
questions under both Rule 56 and the 1974 FOIA
Amendments.
CONCLUSION
For the above reasons, a writ of certiorari
should issue to review the District of Columbia
Circuit's May 23, 1978 and March 28, 1979 judg-
ments and opinions.
Respectfully submitted,
James H. Wallace, Jr.
Thomas C. Arthur
Of Counsel: 1776 K Street, N.W.
Washington, D.C. 20006
Mark H. Lynch (202) 857-5000
600 Pennsylvania
Ave., S.E. Counsel for Petitioners
Washington, D.C. 20003
Alan B. Morrison
David C. Viadeck
Suite 700
2000 P Street, N.W. -«
Washington, D.C. 20036
June 26, 1979
APPENDIX
la
Notice: This opinion is subject to formal revision before publication
in the Federal Reporter or U.S. App. D.C. Reports. Users are requested
to notify the Clerk of any formal errors in order that corrections may be
made before the bound volumes go to press.
United States Comt of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 76-1800
SUSAN D. GOLAND AND PATRICIA B. SKIDMORE,
APPELLANTS
V.
CENTRAL INTELLIGENCE AGENCY, ET AL.
Appeal from the United States District Court
for the District of Columbia
(D.C. Civil 76-0166)
Argued 5 October 1977 | se eaterea
< is date
Decided 23 May 1978 —
James H. Wallace, Jr. with whom Thomas C. Arthur
and Mark H. Lynch were on the brief, for appellants.
John Cordes, Attorney, Department of Justice with
whom Earl J. Silbert, United States Attorney, Rex E.
Bills of costs must be filed within 14 days after entry of judgment. The
court looks with disfavor upon motions to file bills of costs out of time.
2a
Lee, Assistant Attorney General, and Leonard Schaitman,
Attorney, Department of Justice were on the brief, for
appellee.
Before: BAZELON, TAMM and WILKEY, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKEY.
Dissenting opinion filed by Circuit Judge BAZELON.
WILKEY, Circuit Judge: This case arises under the
Freedom of Information Act (FOIA).* Plaintiffs Goland
and Skidmore requested documents from the Central
Intelligence Agency (CIA) relating to the legislative
history of the Agency’s organic statutes. In this suit
they challenge the thoroughness of the CIA’s search
for responsive documents and the Agency’s refusal to
give them certain admittedly responsive material it does
possess. The district court granted summary judgment
in favor of the CIA. We affirm.
I. FACTUAL BACKGROUND
The chronology of events must be elaborated in some
detail. On 2 May 1975 Sara Holtz? filed an FOIA re-
quest with the CIA, seeking access to “all records con-
cerning the legislative history” of the National Security
Act of 1947,° the CIA Act of 1949,‘ and two bills intro-
duced into Congress in 1948 providing for the adminis-
tration of the Agency.’ Specifically, Holtz requested
75 U.S.C. § 552 (1976).
* Holtz is not a party to this suit.
* Act of 26 July 1947, ch. 343, § 102, 61 Stat. 497 (presently
codified at 50 U.S.C. § 403 (1970)).
* Act of 20 June 1949, ch. 227, §§ 1-10, 63 Stat. 208 (pres-
ently codified at 50 U.S.C. §§ 403a-403j ( 1970) ).
* S. 2688, 80th Cong., 2d Sess. (1948) ; H.R. 5871, 80th Cong.
2d Sess. (1948).
site
3a
access to “all reports of the Committees of the House
and Senate and the Conference Committee which re-
ported on the bills, and any hearings which may have
been held on these bills or related to the subject of the
authority, organization and administration” of the CIA.°
On 14 May the CIA responded to Holtz’ letter, ad-
vising her that the documents she sought were Congres-
sional materials which would be available in the Library
of Congress or the Government Printing Office. On 20
May 1975 Holtz wrote the Agency a second letter, stat-
ing her belief that hearings had been held on the bills
she cited for which no transcripts were available in the
Library of Congress, and requesting access to records
of these hearings and to “any House, Senate or Con-
ference Reports, besides those available in public libraries,
that more fully explain the basis for the Committees’
actions on these bills.” *
The Agency responded on 23 June 1975, informing
Holtz that a search of its records had revealed that it
possessed one document relating to the legislative history
of the CIA’s organic statutes which was not publicly
available, namely, a stenographic transcript of Hearings
held before the House Committee on Expenditures in the
Executive Departments on 27 June 1947 (hereinafter
“Hearing Transcript”). The Agency stated, however,
that the Hearing Transcript had been classified “Secret”
by Congress and could be declassified only by that body;
it suggested that Holtz request declassification and re-
lease of the document from the House of Representatives.
There were no further communications between Holtz
and the CIA.
On 20 October 1975 plaintiffs Goland and Skidmore
notified the CIA that they, like Holtz, were “‘investigat-
* Joint Appendix (J.A.) 12.
7 J.A. 14-15.
4a
ing the authority, organization and administration” of
the Agency, and requested “‘the documents requested by
Ms. Holtz’ letters.”* Treating the CIA’s failure to re-
spond within ten days as a denial of their request,’
plaintiffs on 20 November 1975 appealed that denial. On
26 November 1975 the CIA offered to send plaintiffs
copies of five previously published hearings and reports,
even though these documents were “generally available in
the Library of Congress and various depository li-
braries.” *° With respect to the Hearing Transcript, how-
ever, the CIA reiterated its position that the Transcript
was a “legislative document under the control of the
House of Representatives” which was “classified ‘Secret’ ”
and to which FOIA did not apply.”
On 16 December 1975 Goland and Skidmore wrote the
CIA to “elaborate on the basis of [their] appeal,” assert-
ing that the Agency’s letter of 26 November failed to
make clear whether the Transcript and the five pub-
lished documents accounted for all the material they had
requested. In addition, plaintiffs expanded the scope
of their request to embrace not only the reports and
hearings they had sought originally, but also any “ma-
terials which may have been the basis for testimony at
hearings” or “materials used by or submitted by the
CIA or other Executive Branch sources which are in-
8 J.A. 18.
* Under 5 U.S.C. § 552(a) (6) (A) (i) (1976), an agency
must respond to an FOIA request within ten working days;
under § 552(a) (6)(C), a requester is deemed to have ex-
hausted administrative remedies if the agency fails to com-
ply with this time limit.
*° J.A. 22. These five documents (65 pages in all) were
sent to plaintiffs on 12 January 1976. J.A. 78.
1 J.A. 22.
2 J.A. 23-24.
5a
cluded in [unpublished] reports” on the cited bills.*
When the CIA failed to respond to this supplemental
appeal within 20 working days,” plaintiffs filed suit on
28 January 1976.
On 10 March 1976 the CIA notified plaintiffs’ counsel
that it had identified two additional documents responsive
to plaintiffs’ FOIA request which “had not previously
been located.” ** The first document was entitled “State-
ment of Lt. Gen. Hoyt S. Vandenberg, Director of
Central Intelligence,” delivered before the Senate Armed
Services Committee on 29 April 1947. This document
was released to plaintiffs in full. The second document
was entitled “Statement of the Director of Central In-
telligence [Hillenkoetter] Before the House Armed Serv-
ices Committee [on] 8 April 1948” (hereinafter “Hillen-
koetter Statement”). This document was released to
plaintiffs with certain portions (about 20% of the total)
deleted; the Agency explained that the deleted material
was exempt from disclosure under FOIA.
II. COURSE OF THE LITIGATION
The complaint sought an injunction directing the CIA
to make available for copying all “records requested in
plaintiffs’ . . . letter” of 20 October 1975, a declaratory
judgment holding the CIA’s allegedly restrictive definition
of “agency records” “ invalid, and an award of attorneys’
fees. On 10 March 1976 plaintiffs filed interrogatories,
a request for production of documents, and a notice of
18 J.A. 24, 25.
* See 5 U.S.C. § 552 (a) (6) (A) (ii) & (C) (1976).
8 J.A. 129.
eo Dh
7 32 C.F.R. § 1900.3(g) (1976). The definition has recently
been amended. See 42 Fed. Reg. 24,049 (12 May 1977) (codi-
fied at 32 C.F.R. § 1900.8(g) (1977)).
6a
deposition to the CIA. Rather than submit to discovery,
the CIA on 5 April 1976 filed a motion for summary
judgment based on affidavits. The Agency contended
that the Hearing Transcript was not an “agency record”
but rather a Congressional document not subject to
FOIA;* that both the Transcript and the deleted por-
tions of the Hillenkoetter Statement were properly with-
held under FOIA Exemption 8, relating to matters “spe-
cifically exempted from disclosure by statute;’’® that
both the Transcript and the deleted portions of the Hill-
enkoetter Statement were properly withheld under FOIA
Exemption 1, relating to matters “specifically authorized
under criteria established by an Executive Order to be
kept secret in the interest of national defense or foreign
policy ;” *° that the CIA’s search had been complete and
there existed no other responsive documents; and that
plaintiffs lacked standing to challenge the CIA’s defini-
tion of “agency records” inasmuch as the Agency had
not relied on that definition in processing their FOIA
request. Plaintiffs responded to the motion principally
on the grounds that discovery was needed to resolve
disputed issues of fact.
Judge Hart granted the CIA’s motion for summary
judgment on 26 May 1976.*: He found that the Hearing
Transcript was a Congressional document outside the
ambit of FOIA, that the deleted portions of the Hillen-
koetter Statement were properly withheld under FOIA
Exemption 1, and that no further discovery was justified
18 Congress is not an “agency” under FOIA. See 5 U.S.C.
§ 551(1) (A) (1976).
5 U.S.C. § 552(b) (3) (1976).
205 U.S.C. §552(b) (1) (1976). These documents were
classified “Secret” under Executive Order No. 11652, 3 C.F.R.
678 (1971-75 Compilation).
*t Judge Hart’s decision, rendered from the bench, is printed
at J.A. 187-90.
7a
since the CIA had “made a full search in good faith.” *
Judge Hart made no findings about plaintiffs’ standing
to challenge the CIA’s definition of agency records or
about their request for attorneys’ fees. We consider
these issues in turn.
III. ANALYSIS
A. The Hearing Transcript.
The FOIA requires that an agency make “agency
records” available to the public upon reasonable request.**
The Act does not define “records” or “agency records.” **
Plaintiffs argue that since the CIA is an “agency” its
possession of the Hearing Transcript, without more,
renders that document an “agency record” subject to
disclosure absent specific exemption.** The CIA argues
that possession is not enough; it points out that “agency,”
as defined by the Administrative Procedure Act, “does
not include (A) the Congress .. .,” ** and that the Hear-
ing Transcript, regardless of whether it is a “record,”
is not an “agency record” on the facts of this case.”
22 J.A. 190.
*3 5 U.S.C. § 552(a) (3) & (4) (B) (1976).
24 See U.S. DEPT. OF JUSTICE, ATTORNEY GENERAL’S MEMO-
RANDUM ON THE PUBLIC INFORMATION SECTION OF THE AD-
MINISTRATIVE PROCEDURE ACT 23 (1967) [hereinafter AT-
TORNEY GENERAL’S FOIA MEMORANDUM].
*° Brief of Appellants at 40; J.A. 24.
265 U.S.C. § 551(1) (A) (1976).
27 The CIA also argues that if the Hearing Transcript were
an agency record for purposes of § 552(a) (3), it would be
exempt from disclosure under FOIA Exemptions 1 and 3. See
p. 6 supra. Since we hold that the Hearing Transcript is a
Congressional document, we do not consider these arguments.
8a
The district court found that the Hearing Transcript
was “released to the CIA for limited purposes as a
reference document only” and that it “remain[ed] within
the control of Congress;” ** the court concluded that the
Transcript was in consequence a “Congressional docu-
ment,” ** and not an “agency record” within the mean-
ing of FOIA. We agree.
At the outset, we reject plaintiffs’ argument that an
agency’s possession of a document per se dictates that
document’s status as an “agency record.” * We base our
28 J.A. 189.
°° Td.
3°In support of this argument, plaintiffs cite 44 U.S.C.A.
§ 3301 (West Supp. 1977), an earlier version of which is
quoted in the Attorney General’s FOIA Memorandum, supra
note 24 at 23. Section 3301 defines ‘‘records” for purposes
of the management, disposal, and archival preservation of
Government documents by the Administrator of General Serv-
ices; it states that “[a]s used in [chapter 33 of 44 U.S.C.],
‘records’ includes all... papers ... made or received by an
agency of the United States Government . . . appropriate for
preservation py that agency ... .” (emphasis added). This
definition is hardly controlling here. In enacting legislation
on management and disposal of Government records, Congress
was concerned with preserving an “[a]ccurate and complete
documentation of the policies and transactions of the Federal
Government.” 44 U.S.C.A. § 2902(1) (West Supp. 1977).
With this objective in mind, Congress might well regard the
Hearing Transcript as a “record . . . appropriate for preser-
vation” by the CIA, since the Transcript contains information
regarding “basic elements of [the CIA’s] intelligence meth-
odology” and details of the CIA’s “structure and disposition of
functions.” Affidavit of CIA Legislative Counsel George L.
Cary, J.A. 80 [hereinafter “Cary Affidavit’”]. The sole result
of the Hearing Transcript’s being deemed an “agency record”
under § 3301 by virtue of its receipt by the CIA is that the
Transcript could not thereafter be destroyed except in con-
formity with the procedure Congress prescribed—a result
" eee |
2
atm
9a
conclusion both on precedent and on policy. The prece-
dent is the Tenth Circuit’s opinion in Cook v. Willing-
plainly harmonious with Congress’ objectives. See 44 U.S.C.
§ 3314 (1970). Congress’ objectives in the FOIA, of course,
were rather different. In the interests of secrecy, Congress
exempted itself from the Act’s disclosure requirements; yet
the result of the Hearing Transcript’s being deemed an
“agency record” under § 552(a) (3) by virtue of its receipt by
the CIA is that the Transcript’s release could be required, re-
gardless of Congress’ wishes, unless the CIA could prove a
specific exemption. Given this difference in result, we doubt
Congress would agree that an “agency record” under 44
U.S.C. §3301 is an “agency record” under 5 U.S.C.
§ 552 (a) (8). Indeed, the two titles define “agency” differently.
Compare 5 U.S.C. §551(1) (A) & (B) (1976) (“agency”
excludes Congress and the federal courts) with 44 U.S.C.A.
§ 2901(13) (West Supp. 1977), cross-referring to 40 U.S.C.
§ 472(b) (1970) (“agency” includes not only executive agen-
cies, but also “any establishment in the legislative or judicial
branch,” with exceptions). Congress, in any event, has had
ample opportunities to make the § 3301 definition of “records”
applicable in § 552(a) (3) of FOIA, but has never done so.
Cf. 44 U.S.C.A. § 2906(a) (3) (West Supp. 1977) (stating
that under certain circumstances “records” under § 3301 shall
be deemed records for purposes of 5 U.S.C. §552a). One
recent commentator has stated that § 3301, although it con-
tains the “only statutory definition of ‘record,’” is “an
inappropriate answer to the definitional issue.” J.T. O’REILLY,
FEDERAL INFORMATION DISCLOSURE, {| 5.03 n.1 (1977).
Plaintiffs point out that the § 3301 definition of records was
quoted in the Attorney General’s FOIA Memorandum, supra
note 24 at 23. We do not see how this helps plaintiffs’ case.
The Attorney General noted that the FOIA did not define
“records,” then quoted the only available statutory definition
of the term for what it was worth. He would have been remiss
in not doing so. Yet his citation of the definition does not give
it any greater extrapolative force than it inherently possesses.
The Attorney General surely did not focus on the words “or
received by,” which plaintiffs italicize and which are relevant
to our case. Indeed, the Memorandum elsewhere suggests that
an agency’s possession of a document does not per se render
the document an “agency record” which the possessing agency
must release. See note 46 infra.
10a
ham,*' the only decision cited to us or discovered by our
own research that is squarely on point. In Cook, a
prisoner sought a copy of his presentence investigation
report under FOIA. Although the document was physi-
cally in the possession of the warden of a United States
penitentiary, the Tenth Circuit held the place of pos-
session not controlling. Noting that FOIA “does not
apply to ‘the courts of the United States,’ ” * it concluded
that the presentence report, “made for the use of the
sentencing court,” thereafter “remains in the exclusive
control of that court despite any joint utility it may
eventually serve.” * In consequence, the judicial document
was “not an agency report and [was] therefore not
available to the public” under FOIA.“ Since the FOIA’s
exemptions for Congress and the federal courts are im
pari materia,** Cook is firm support for the conclusion
that the Hearing Transcript, a Congressional document,
is not “an agency record” here.
This conclusion likewise finds firm support in policy.
Congress has undoubted authority to keep its records
secret, authority rooted in the Constitution, long-
13 400 F.2d 885 (10th Cir. 1968) (per curiam), followed in
United States v. Dingle, 546 F.2d 1878, 13881 (10th Cir. 1976).
82 400 F.2d at 885, citing 5 U.S.C. § 551(1) (B) (1976).
ae (5
34 Jd. at 886. See United Broadcasting Co., 58 F.C.C.2d
1243, 1245 (1975) (FCC withheld probationary report because
“probationary report, like a presentencing report, properly
belongs to the Court for which it was made, and is therefore
not capable of release under FOIA,” citing Cook).
85 See 5 U.S.C. § 551(1) (A) & (B) (1976).
36 U.S. Const. art. I, §5: “Each House shall keep a Journal
of its Proceedings, and from time to time publish the same,
excepting such Parts as may in their Judgment require
Secrecy... .”
lla
standing practice, and current Congressional rules.”
Yet Congress exercises oversight authority over the var-
ious federal agencies, and thus has an undoubted in-
terest in exchanging documents with those agencies to
facilitate their proper functioning in accordance with
Congress’ originating intent.” If plaintiffs’ argument
were accepted, Congress would be forced either to sur-
render its constitutional prerogative of maintaining
secrecy, or to suffer an impairment of its oversight role.
We decline to confront Congress with this dilemma absent
a more convincing showing of self-abnegating Congres-
sional intent. It may be assumed that plaintiffs could
not easily win release of the Hearing Transcript from
the House of Representatives; we will not permit them
to do indirectly what they cannot do directly because of
the fortuity of the Transcript’s location.
For reasons both of precedent and policy, then, we
believe that plaintiffs’ litmus test must be rejected. An
agency’s possession of a document, standing alone, no
more dicates that it is an “agency record” than the
Congressional origins of a document, standing alone,
dictate that it is not. Whether a Congressionally-
generated document has become an agency record, rather,
depends on whether under all the facts of the case the
document has passed from the control of Congress and
** See Nixon V. Sirica, 487 F.2d 700, 772-73 (D.C. Cir. 1973)
(Wilkey, J., dissenting).
6 E.g., H.R. Rule X1I(2) (k) (7), reprinted in H.R. Doc. No.
416, 93d Cong., 2d Sess. 427 (1975): “No evidence or testi-
mony taken in executive session may be released or used in
public sessions without the consent of the committee.”
%° See Letter from Deputy Att’y Gen. Harold R. Tyler, Jr.
to Hon. Bella S. Abzug, 19 Feb. 1976, quoted in J.A. 60
(Justice Dept. declined to reiease confidential House report
lest “communications and consultations between coequal
branches” of government be stifled).
12a
become property subject to the free disposition of the
agency with which the document resides.
The document at issue here is a photostatic reproduc-
tion of a stenographic transcript of a hearing held be-
fore the House Committee on Expenditures in the Ex-
ecutive Departments on 27 June 1947, entitled “H.R.
2319—Unification of the Armed Forces.” The Commit-
tee was sitting in Executive Session. As the first order
of business, the Chairman swore the stenographer and
typist to secrecy.*° The transcript contains discussions
of basic elements of intelligence methodology, both of
this country and of friendly foreign governments, as
well as detailed discussions of the CIA’s structure and
disposition of functions.‘ When received by the CIA,
the Transcript bore the typewritten marking “Secret”
on its interior cover page; this marking appears to have
been appended at the time the Transcript was made.”
The typewritten mark “Secret” appears again on the
first page of the text of the Transcript. The CIA re-
tains a copy of the Transcript for internal reference
purposes only, to be used in conjunction with legislation
concerning the Agency and its operations.“
Given these facts, we conclude that the Hearing Tran-
script remains under the control of and continues to
*° Cary Affidavit, supra note 30, J.A. 80.
41 J.A. 80-81. Because the CIA methodology and disposition
of functions described in the Transcript are still operable,
and because disclosure of the information could damage U.S.
relations with friendly foreign governments, the CIA itself
separately classified portions of the Transcript “Secret” pur-
suant to Executive Order 11652. See note 20 supra. We do not
consider whether this classification was proper. See note 27
supra.
*2 Cary Affidavit, supra note 30, J.A. 80.
*3 Td. at 79-80.
13a
be the property of the House of Representatives. We
base our conclusion both on the circumstances attending
the document’s generation and the conditions attached
to its possession by the CIA. The facts that the Com-
mittee met in executive session “* and that the Transcript
was denominated “Secret” plainly evidence a Congres-
sional intent to maintain Congressional control over the
document’s confidentiality.*© The fact that the CIA re-
tains the Transcript solely for internal reference pur-
poses indicates that the document is in no meaningful
sense the property of the CIA; the Agency is not free
to dispose of the Transcript as it wills, but holds the
document, as it were, as a “trustee” for Congress. Under
these circumstances, the decision to make the transcript
“Cf. S. Rep. No. 5, 81st Cong., Ist Sess. (“First Annual
Report of the Investigations Subcomm. of the Comm. on Ex-
penditures in the Executive Departments”) 3 (1949): “Ex-
ecutive hearings were .. . utilized in cases involving national
security and in other instances when it was determined that
public disclosure might be detrimental to the public interest.”
** Plaintiffs point out that the predecessor of current House
Rule XI (2) (k) (7), supra note 38, governing secrecy of testi-
mony taken in executive session, was not enacted until 1955.
Brief at 41. See H.R. Doc. No. 416, supra note 38 at 427. It
is clear, however, that the Rule simply formalized long-
standing practice. Cf., e.g., S. REP. No. 5, supra note 44 at
3-4: “The subcommittee calls attention to the following rules
of procedure which it adopted and which it has uniformly
followed: ... (5) All testimony taken in executive hearings
shall be secret and will not be released or used in public hear-
ings without the approval of a majority of the subcommittee.”
Even without the benefit of a general Rule, moreover, the
transcript on its face manifests the indicia of Congress’ intent
to maintain secrecy. Since it is Congress’ intent to maintain
secrecy, and not Congress’ conformance with the procedural
niceties of classification, that makes the Transcript a “Con-
gressional document,” plaintiffs’ arguments that discovery is
required as to the identity of the classifier, the date on which
the document was classified, etc., are irrelevant in reaching a
decision here.
l4a
public should be made by the originating body, not by
the recipient agency.“
We hold, therefore, that the Hearing Transcript is
not an “agency record” but a Congressional document
to which FOIA does not apply.** We reach this con-
clusion because we believe that on all the facts of the
case Congress’ intent to retain control of the document
is clear. Other cases will arise where this intent is less
plain. We leave those cases for another day.**
* Cf. ATTORNEY GENERAL’S FOIA MEMORANDUM, supra note
24 at 24:
Where a record is requested which is of concern to more
than one agency, the request should be referred to the
agency whose interest in the record is paramount, and
that agency should make the decision to disclose or with-
hold .... Where a record requested from an agency 1s
the exclusive concern of another agency, the request
should be referred to that other agency.
This rule was followed in Friendly Broadcasting Co., 55
F.C.C.2d 775, 775-76 (1975) (where FBI Reports were loaned
to FCC solely for internal reference purposes, Reports were
“property of the Federal Bureau of Investigation” and FBI,
“as the originator of the Reports, . . . is the agency to which
the request should be addressed” under FOIA).
‘7 Plaintiffs argue that even if the Transcript as a whole is
a “Congressional document,” those portions originating with
the CIA are producible as “ ‘reasonably segregable por-
tion[s]’”’ with the “comments of members of Congress... .
deleted if necessary as ‘Congressional materials.’” Brief at
42 & n.15, citing 5 U.S.C. §552(b) (last sentence) (1976).
This argument is frivolous. Congress met in executive session,
and marked the Transcript “Secret,” not only to protect its
members’ questions, but to protect its witnesses’ answers.
The cited provision from § 552(b), in any event, requires
segregation and disclosure of non-exempt portions of agency
records; since we hold that the Hearing Transcript is not
an agency record, this provision has no application here.
48 In ascertaining whether a record in the possession of an
agency is nonetheless a Congressional document, a court will
15a
B. The Hillenkoetter Statement.
The Hillenkoetter Statement is concededly an ‘agency
record.” Although the entire 113-page document was
originally classified “Secret,” the CIA has declassified
of course accord due weight to the factors that influence us in
this case, including (1) Congress’ clear intent to exempt Con-
gressional documents from disclosure under FOIA; (2) Con-
gress’ clear prerogative to prevent disclosure of its own confi-
dential materiais; and (8) the danger of inhibiting the legis-
lative and judicial branches from making their records avail-
able to the executive branch.
The dissent argues that this test, and the conclusion it pro-
duces, prove too much: if the Hearing Transcript is a Con-
gressional document, so also must the Hillenkoetter Statement
be, a reductio our colleague evidently views as ad absurdum.
See diss. op. at 10-11. Since the CIA has never contended
that the Hillenkoetter Statement is a Congressional document
—since, indeed, the CIA has acted inconsistently with any
such contention by declassifying and releasing 80% of the
document—we see no need to consider this question. We
might note, however, that between the Hillenkoetter State-
ment and the Hearing Transcript substantial differences lie.
The former is a statement by a CIA official prepared by the
CIA; we do not know the circumstances of its delivery in Con-
gress, and it was classified “Secret,” not by Congress, but by
the CIA. The latter is a transcript of colloquy between Con-
gressmen and CIA witnesses; it was created in Congress under
circumstances manifesting a plain Congressional desire for
secrecy, and it initially was labeled “Secret,” not by the CIA,
but by Congress. These distinctions are not, as our dissenting
colleague says, a matter of paper and ink. The Transcript
originated in Congress and remains a Congressional document
because it bears clear indicia of a Congressional purpose to
ensure secrecy ; the Statement originated in the CIA and bears
no indicia of any Congressional purpose to ensure secrecy. It
is these indicia of Congress’ continuing control that are dis-
positive of a document’s “Congressional” status.
The dissent argues that “ ‘[c]ontrol’ in this sense goes to
the question whether a document is exempt from disclosure—
not to whether it is an ‘agency record.’” Diss. op. at 8.
[Continued]
16a
approximately 80% of it and released those portions to
plaintiffs. The Agency contends that the deleted portions
are exempt from disclosure under FOIA Exemptions 1“
and 8. The district court held this material exempt,
relying on Exemption 1. We agree, but base our hold-
ing instead on Exemption 8, without in any way im-
pugning the correctness of Judge Hart’s conclusion.”
As originally enacted, FOIA provided that the Act’s
disclosure requirements ‘“[do] not apply to matters that
are—. . . (3) specifically exempted from disclosure by
statute.” *' Two statutes are relevant to an Exemption
3 claim by the CIA. A proviso to 50 U.S.C. § 403(d)
*® [Continued]
This argument seems to mean that Congress can exercise
“control” over secret documents that leave its possession only
by enacting FOIA exemptions. We disagree. Congress has
broad powers to keep its documents secret; when Congress
transfers secret documents to an agency, for a limited pur-
pose and on condition of secrecy, we see no reason to think
it thereby waives its own prerogatives of confidentiality and
resigns itself to the FOIA exemptions which bind the agency
and not it.
**The deleted portions of the Statement were classified
“Secret” pursuant to Executive Order 11652 “in the interest
of national defense or foreign policy.” See p. 6 & note 20 supra.
*° Although “inquiries into the applicability of the two ex-
emptions may tend to merge,” Phillippi v. CIA, 546 F.2d 1009,
1016 n.14 (D.C. Cir. 1976), Exemption 3 may of course be
invoked independently of Exemption 1. See Weissman v. CIA,
565 F.2d 692, 698 (D.C. Cir. 1977); Marks v. CIA, 426 F.
Supp. 708, 710-11 n.6 (D.D.C. 1977), appeal docketed, No.
77-1225 (D.C. Cir. 3 March 1977); J.T. O’REILLY, swpra note
30, at {| 13.07. Whether the deleted portions of the Hillen-
koetter Statement were properly withheld is perhaps more
clearly and briefly stated under Exemption 3 than under Ex-
emption 1, hence we reach Judge Hart’s conclusion by a dif-
ferent path.
5 U.S.C. § 552(b) (3) (1970).
17a
(3) states that “the Director of Central Intelligence
shall be responsible for protecting intelligence sources
and methods from unauthorized disclosure.” Section
403g of the same title provides that, “in order further
to implement” this proviso, “the Agency shall be ex-
empted from ... the provisions of any . . . law which
require the publication or disclosure of the organization,
functions, names, official titles, salaries, or numbers of
personnel employed by the Agency.” In Weissman vy.
CIA," this Court squarely held that “both § 408(d) (3)
and § 403g are precisely the type of statutes compre-
hended by exemption (b) (3).”* This conclusion derived
incontrovertible support from legislative history” and
was unanimously adopted by other courts.°’
** National Security Act of 1947, ch. 348, tit. I, § 102, 61
Stat. 497 (presently codified at 50 U.S.C. § 403(d) (3)
(1970) ).
“CIA Act of 1949, ch. 227, §7, 63 Stat. 211 (presently
codified at 50 U.S.C. § 403g (1970) ).
1565 F.2d 692 (D.C. Cir. 1977).
°° Id. at 694. See Phillippi Vv. CIA, 546 F.2d 1009, 1015 n.14
(D.C. Cir. 1976).
"© S. Rep. No. 93-854, 938d Cong., 2d Sess. 16 (1974) (“Intel-
ligence Sources and Methods (50 U.S.C. § 408 (d) (3) and (g) )
.. . have been exempted from public inspection under section
552(b) (3)... .”); S. Rep. No. 98-1200, 98d Cong., 2d Sess.
12 (1974) (Conference Report) (same).
H.g., Richardson v. Spahr, 416 F.Supp. 752, 753 (W.D.
Pa.), aff'd, 547 F.2d 1163 (38d Cir. 1976) (§§ 403(d) (3) &
403g are both Exemption 3 statutes); Marks v. CIA, 426
F.Supp. 708, 710-11 (D.D.C. 1976), appeal docketed, No.
77-1225 (D.C. Cir. 3 March 1977) (same); Baker v. CIA, 425
F.Supp. 633, 635 (D.D.C. 1977), appeal docketed, No. 77-1228
(D.C. Cir. 3 March 1977) (same).
18a
In 1976 Congress amended Exemption 3 in order to
“eliminate the gap created in [FOIA]” by the Supreme
Court’s decision in FAA Administrator v. Robertson.”
Robertson held that a statute giving an agency broad
discretion to withhold information “in the interest of the
public” * qualified as an Exemption 3 statute. Congress
amended Exemption 3 to provide that information shall
be deemed specifically exempted from disclosure by
statute only if such statute “(A) requires that the mat-
ters be withheld from the public in such a manner as to
leave no discretion on the issue, or (B) establishes par-
ticular criteria for withholding or refers to particular
types of matters to be withheld.” There is nothing
on the face of amended Exemption 3, or in its legislative
history, to suggest that Congress in 1976 intended to
upset the well-established Exemption 3 status of the
CIA’s protective statutes. Both § 403(d) (3) and § 403g
“refer{] to particular types of matters to be withheld”
—namely, information respecting intelligence sources and
methods. Rep. Abzug, the amendment’s primary sponsor
in the House, explicitly stated on the floor that § 403g
°° H.R. Rep. No. 94-880, pt. 1, 94th Cong., 2d Sess. 23
(1976), citing 422 U.S. 255 (1975). The revision in Ex-
emption 3 represented a conforming amendment to 5 U.S.C.
§ 552b(c) (3) (1976), part of the Government in the Sun-
shine Act, Pub. L. No. 94-409, § 3(a), 90 Stat. 1241 (1976).
5° Robertson involved § 1104 of the Federal Aviation Act of
1958, 49 U.S.C. § 1504 (1970), which provides in pertinent
part: “Whenever [any person objects to public disclosure of
information received by the FAA], the Board or Adminis-
trator shall order such information withheld from public
disclosure when, in their judgment, a disclosure of such
information would adversely affect the interests of such per-
son and is not required in the interest of the public.”
6 Act of 13 Sept. 1976, Pub. L. No. 94-409, § 5(b), 90 Stat.
1247 (presently codified at 5 U.S.C. § 552(b) (3) (1976) ).
The amendment became effective 12 March 1977, 180 days
after its enactment. See Pub. L. No. 94-409, § 6.
19a
was one of the statutes intended to qualify under the
new Exemption 3." The only courts to consider the
issue have held that the amendment left the Exemption
3 status of §§403(d)(3) and 403g unimpaired.”
Scholarly commentators have reached the same con-
clusion.
61 122 Cong. Rec. H9260 (daily ed. 31 Aug. 1976):
I have been asked whether 50 U.S.C. [§]4038g, a statute
relating to CIA exemption from laws such as the Sunshine
Act and the Freedom of Information Act, comes within
the third exemption as recommended by the conference.
I have examined section 403g and believe that it does
come within the exemption.
The legislative history cites, by way of example, in addition
to the statute involved in Robertson, supra note 59, several
statutes that would not qualify under amended Exemption 3.
See H.R. REp. No. 94-880, pt. 1, 94th Cong., 2d Sess. 23
(1976), citing 18 U.S.C. § 1905 (1970); S. Rep. No. 94-1178,
94th Cong., 2d Sess. 14 (1976) (Conference Report), citing
42 U.S.C. § 1806 (Supp. V 1975). These statutes are of the
oceanic variety involved in Robertson and are in marked
contrast to the CIA statutes involved here. 42 U.S.C. § 1306
provides that no disclosure of any information obtained at
any time by or from the Departments of HEW or Labor shall
be made except as relevant regulations prescribe. 18 U.S.C.
§ 1905 prohibits “[d]Jisclosure of confidential information
generally” by any officer or employee of the United States “‘in
any manner or to any extent not authorized by law.”
82 Fonda Vv. CIA, 484 F.Supp. 498, 503-04 & n.6 (D.D.C.
1977), appeal docketed, No. 77-1989 (D.C. Cir. 4 Nov. 1977);
Hayden v. CIA, No. 76-284, slip op. at 3-4 (D.D.C. 15 Apr.
1977), appeal docketed, No. 77-1894 (D.C. Cir. 30 Sept. 1977).
68 See J. T. O'REILLY, supra note 30, at § 13.07 (“manda-
tory” nature of CIA statuces “bars disclosure under either
the original or revised versions of exemption (b) (3)”) ; Note,
The Effect of the 1976 Amendment to Exemption Three of the
Freedom of Information Act, 76 CoLUM. L.REv. 1029, 1044
n.91 (1976) (§ 403g qualifies under revised Exemption 3 be-
cause it specifies the “particular types of matters to be with-
held’).
20a
Having decided that § 403(d) (3) and § 403g remain
qualifying statutes under amended Exemption 3, we
must determine whether the deleted portions of the
Hillenkoetter Statement fall within these statutes’ pro-
tective compass. A court may be able to make such a deter-
mination on the basis of affidavits, without the need for
discovery or in camera inspection.“ Exemption 3 differs
from other FOIA exemptions in that its applicability de-
depends less on the detailed factual contents of specific
documents; the sole issue for decision is the existence of a
relevant statute and the inclusion of withheld material
within that statute’s coverage.®
°* Congress has instructed the courts to accord “substantial
weight” to agency affidavits in national security cases. S. REP.
No. 93-1200, 98d Cong., 2d Sess. 12 (1974) (Conference Re-
port) ; 120 Cong. Rec. 36,870 (1974) (remarks of Sen. Mus-
kie) ; Weissman v. CIA, 565 F.2d 692, 697 n.10 (D.C. Cir.
1977). A court has discretion to conduct in camera inspection
under 5 U.S.C. § 552(a) (4) (B) (1976), but the legislative
history makes clear that in camera inspection should be
ordered only after an agency has been given “the oppor-
tunity to establish by means of testimony or detailed affidavits
that the documents are clearly exempt from disclosure.” S.
Rep. No. 93-1200, 93d Cong., 2d Sess. 9 (1974) (Conference
Report). The description contained in the affidavits must be
sufficiently detailed to show that the contested matter “‘logi-
cally falls into the category of the exemption indicated.” Weiss-
man, 565 F.2d at 697.
65 See EPA v. Mink, 410 U.S. 78, 95 n.* (1973) (Stewart,
J., concurring) (under Exemption 3 “the only ‘matter’ to be
determined in a district court’s de novo inquiry is the factual
existence of [a relevant] statute, regardless of how unwise,
self-protective, or inadvertent the enactment might be’);
J.T. O'REILLY, supra note 30, at § 13.07. In Vaughn v. Rosen,
484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977
(1974), we noted the need of techniques to test for the
presence in a withheld document of segregable, nonexempt
matter, lest an agency be able to “sweep[] disclosable material
under a blanket allegation of exemption.” Jd. at 827 n.21. In
this case, the need for discovery or in camera inspection to
2la
In this case, the issue for decision is whether the
CIA has shown by affidavit that release of the Hillen-
koetter Statement in its entirety would reveal “intelli-
gence sources and methods,” e.g., by revealing the “or-
ganization” or “functions” of CIA personnel. According
to an affidavit submitted by CIA Legislative Counsel
George L. Cary, the deleted portions of the Hillenkoetter
Statement contain detailed descriptions of (1) “intelli-
gence collection and operational devices . . . still utilized’;
(2) “methods of procurement and supply . . . unique to
the Intelligence Community” which “are currently uti-
lized”; (3) “basie concepts of intelligence methodology”
of which “the essential elements remain viable’; (4)
“specific clandestine intelligence operations,” including
the “names [of] the foreign countries involved”; and (5)
“certain intelligence methodologies of a friendly foreign
government.” This affidavit has not been challenged. It
demonstrates, in nonconclusory and detailed fashion,®
that the deleted material describes “intelligence . .
methods,” including the “functions” and “organization”
of CIA personnel.” We hold, therefore, that the deleted
test for the presence of segregable, non-exempt material is
considerably diminished: the CIA’s claims of exemption are
by no means “blanket” or “sweeping,” and the Agency has
already segregated and released 80% of the Hillenkoetter
Statement to plaintiffs.
°° See Vaughn V. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973),
cert. denied, 415 U.S. 977 (1974).
* Section 403g does not of course license the Agency “to
refuse to provide any information at all about anything it
does.” Philiippi v. CIA, 546 F.2d 1009, 1015 n.14 (D.C. Cir.
1976). In this case, disclosure of the “personnel” material at
issue would lead to disclosure of intelligence sources and meth-
ods. But see Baker v. CIA, 425 F. Supp. 633, 635-36 (D.D.C.
1977), appeal pending, No. 77-1228 (D.C. Cir. 1978) (§ 403¢
personnel matter exempt under Exemption 8 even absent
22a
portions of the Hillenkoetter Statement were properly
withheld under FOIA Exemption 3.
The dissent would deny summary judgment on the
Exemption 3 status of the Hillenkoetter Statement be-
cause the CIA did not furnish a Vaughn v. Rosen index
of that document. This argument exalts from over
substance. Vaughn involved a request for numerous docu-
ments running to “many hundreds of pages,” and the
Government made a blanket claim that “the documents,
as a whole, [were] exempt under three distinct exemp-
tions.” °° We found it “preposterous to contend that all
of the information [was] equally exempt under all of the
alleged exemptions,” and found “an adequate indexing
system” necessary owing to our “inability to determine
which exemptions appl[ied] to what portions of the in-
formation.” * The present case involves 23 pages of
deletions from one document. The CIA’s affidavit lists
the deletions; provides a “relatively detailed analysis” ”
of the material deleted; makes clear which exemptions
are claimed for the deletions (Exemptions 1 & 3); and
explains why the deleted material fits within the exemp-
tions claimed (i.e., how the deletions relate to “national
security” and “intelligence sources and methods”). The
proof that disclosure would in fact compromise intelligence
sources and methods).
68 See diss. op. at 1-3 & 18-20, citing 484 F.2d 820, 826-28
(D.C. Cir. 1978), cert. denied, 415 U.S. 977 (1974).
6° See 484 F.2d at 825, 827.
70 Td. at 827-28, 827 n.22.
717d. at 826. See Maroscia v. Levi, 569 F.2d 1000, 1003
(7th Cir. 1977) (per curiam) (upholding summary judgment
on Exemption 1 status of CIA document, without in camera
inspection, on basis of affidavit describing document “in some
detail, indicating the circumstances and the sensitivity of the
information,” and explaining “[t]he potential harm resulting
from disclosure of [the] document’).
23a
CIA’s jusitifications, we think, could not have been
much more detailed without “compromis[ing] the secret
nature of the information.” * Although the Agency did
not tender its analysis in the form of an “index,” there-
fore, it satisfied the “detailed justification,” “specificity,”
and “separation” requirements whose satisfaction the
Vaughn index was meant to ensure. Although we do
not retreat in the least from our belief that an index
is of great assistance to requesters and courts in ap-
propriate cases, common sense suggests that an index
was unnecessary for the 23 pages that were so specifi-
cally described and justified here.
C. The Thoroughness of the CIA’s Search for Re-
sponsive Documents
The CIA asserts that exhaustive searches of its files
have succeeded in locating eight, and only eight, docu-
ments that are responsive to plaintiffs’ FOIA request.”
Plaintiffs contend that discovery is needed to test whether
the CIA’s search was complete. The district court
awarded summary judgment in favor of the CIA, find-
ing that “the CIA ha[d] made a full search in good
faith and that no further discovery [was] justified.” ™
We agree.
In order to prevail on an FOIA motion for summary
judgment, “the defending agency must prove that each
document that falls within the class requested either
has been produced, is unidentifiable, or is wholly exempt
7 Vaughn V. Rosen, 484 F.2d at 826-27.
7s These documents are the five published hearings (released
in full), the Vandenberg Statement (released in full), the
Hillenkoetter Statement (withheld in part), and the Hearing
Transcript (withheld in full). See pp. 4-5 supra.
™ J.A. 190.
24a
from the Act’s inspection requirements.” * In determin-
ing whether an agency has met this burden of proof,
the trial judge may rely on affidavits. Congress has
instructed the courts to accord “substantial weight” to
agency affidavits in national security cases,” and these
affidavits are equally trustworthy when they aver that
all documents have been produced or are unidentifiable
as when they aver that identified documents are exempt.
The agency’s affidavits, naturally, must be “relatively
detailed” and nonconclusory ” and must be submitted in
good faith. But if these requirements are met, the dis-
trict judge has discretion to forgo discovery and award
summary judgment on the basis of affidavits.”
In support of its motion for summary judgment, the
CIA submitted affidavits executed by Gene F. Wilson,
the Agency’s Information and Privacy Coordinator. Wil-
*® National Cable Television Ass’n, Inc. V. FCC, 479 F.2d
183, 186 (D.C. Cir. 1973).
6S. REP. No. 93-1200, 93d Cong., 2d Sess. 12 (1974) (Con-
ference Report); 120 Cong. Rec. 36,870 (1974) (remarks of
Sen. Muskie). See EPA v. Mink, 410 U.S. 73, 93 (1973).
* Vaughn Vv. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973),
cert. denied, 415 U.S. 977 (1974).
** See Nolen Vv. Rumsfeld, 5385 F.2d 890, 891-92 (5th Cir.
1976) (granting summary judgment upon agency’s representa-
tions “in candor and in good faith” that all responsive docu-
ments were made available to plaintiff); Association of Nat'l
Advertisers, Inc. v. FTC, 38 Ad.L.2d 6438, 644 (D.D.C. 1
April 1976) (where record indicates that agency search was
“reasonably thorough,” discovery may be limited by court;
to justify discovery where FTC “has already stated under
oath that the search was Commission-wide and complete,
... [p]laintiff must demonstrate some substantial discrepancy
between the defendants’ actions and words... .’); Exxon Corp.
Vv. FTC, 384 F.Supp. 755, 759-60 (D.D.C. 1974), remanded,
527 F.2d 1386 (D.C. Cir. 1976), dismissed, No. 73-1928
(D.D.C. 28 Feb. 1977) (limiting discovery where affidavits
demonstrated adequacy of search).
:
ba
* ‘
x)
25a
son stated that in response to plaintiffs’ initial request
for “legislative history” he “caused a search to be made
for all printed hearings, transcripts of hearings, [and]
printed reports issued by Committees of the House, Com-
mittees of the Senate or Conference Committees.” This
search produced five published reports and the Hearing
Transcript. Subsequently, plaintiffs expanded their re-
quest to include all documents “which may have been
used to prepare for Congressional testimony.” * Wilson
then conducted a “further exhaustive search” for “copies
of prepared testimony or statements presented in re-
sponse to congressional consideration of the legislation”
cited by plaintiffs." In this search, the CIA “interpreted
[plaintiffs’] request broadly enough to ensure that [it]
would locate all documents within the scope of the re-
quest,” and “searched and reviewed all files which might
contain [responsive] documents.” * This search produced
the Vandenberg and Hillenkoetter Statements, but “failed
to locate any additional records which could be con-
sidered responsive to plaintiffs’ request.” ** Since the
CIA has no indices or compendiums identifying records
as “preparatory documents for congressional testimony,”
any additional records of this description, if they exist,
could be found only by “a page-by-page search” through
the ‘‘84,000 cubic feet of documents in the [CIA] Records
Center.” ** Even if such a page-by-page search were
undertaken, it would be “impossible to determine which
documents, if any, were in fact used to prepare for
79 J.A. 174.
8° J.A. 106. See pp. 4-5 supra.
81 J.A. 78, 174.
82 J.A. 78.
83 J.A. 174.
¢ J.A. 175.
26a
congressional testimony on the legislation cited by plain-
an
We think that Wilson’s sworn affidavits on their face
are plainly adequate to demonstrate the thoroughness
of the CIA’s search for responsive documents. The af-
fidavits give detailed descriptions of the searches under-
taken, and a detailed explanation of why further searches
would be unreasonably burdensome. Plaintiffs argue,
however, that even if Wilson’s affidavits are otherwise
sufficient to support summary judgment in favor of the
CIA, discovery is required here because there is reason
to doubt the Agency’s good faith.
First, plaintiffs note that hearings occurred on the
CIA’s enabling statutes for which no published tran-
scripts exist, and argue that unpublished transcripts
of these hearings, as well as CIA back-up documents
prepared for use at these hearings, “must exist.” * Al-
though appeals to common sense are not altogether to
be condemned, plaintiffs’ argument is unpersuasive here.
Even if we assume that the documents plaintiffs posit
were created, there is no reason to believe that the docu-
ments, thirty years later, still exist, or, if they exist,
that they are in the possession of the CIA. Moreover,
even if the documents do exist and the CIA does have
them, the Agency’s good faith would not be impugned
unless there were some reason to believe that the sup-
posed documents could be located without an unreason-
ably burdensome search. It is well established that an
agency is not “required to reorganize [its] files in re-
sponse to [a plaintiff’s] request in the form in which it
was made,” * and that if an agency has not previcusly
5 Id.
*° J.A. 110 (emphasis original). See Brief of Appellants
at 26-27.
** Irons V. Schuyler, 465 F.2d 608, 615 (D.C. Cir.), cert.
denied, 409 U.S. 1076 (1972).
27a
segregated the requested class of records production may
be required only “where the agency [can] identify that
material with reasonable effort.” ** Wilson’s affidavits
plainly show that the effort required to locate the hypo-
thesized “back-up” documents would be unreasonable
here.
Second, plaintiffs argue that the Church Committee
Report * refers to several documents that “appear to be
within the scope of plaintiffs’ FOIA request . . ., and
copies of which could reasonably be expected to be in
the possession of the CIA, but which defendants have
neither identified or produced ....”” This argument
is similarly unpersuasive. In their expanded request for
“legislative history,” plaintiffs sought access to Congres-
sional reports and hearings on specific bills, and CIA
materials that may have been “the basis for testimony
at hearings” or “included in . . . reports” on those bills.
Fifteen of the 17 documents plaintiffs cite from the
Church Committee Report lie unmistakably outside the
scope of their FOIA request.” The two remaining docu-
88 National Cable Television Ass’n, Inc. v. FCC, 479 F.2d
183, 192 (D.C. Cir. 1973). See H.R. REP. No. 93-876, 93d
Cong., 2d Sess. 5-6 (1974) (description of records requested
must enable “a professional employee of the agency who
[is] familiar with the subject area of the request to locate
the record with a reasonable amount of effort’).
8° Final Report of the Senate Select Committee to Study
Governmental Operations with Respect to Intelligence Activi-
ties, S. Rep. No. 94-755, book 1, 94th Cong., 2d Sess. (1976)
[hereinafter “(Church Committee Report” or “Report’’].
9 J.A. 178.
1 In their Brief at 21-23 n.7, plaintiffs refer to the follow-
ing documents:
(a) Two memoranda from Wm. J. Donovan to the Presi-
dent, dated 1941 and 1944 (cited in Report at 481 n.24 & 482
n.28). These documents antedate by at least three years the
28a
ments are transcripts of Congressional hearings in ex~
ecutive session.** In his affidavit, Wil: on stated that these
documents, “if they exist, are not held by the [CIA].” ”
legislation cited by plaintiffs; neither memorandum discusses
any legislation whatever, nor was either prepared for testi-
mony on legislation. See Wilson Affidavit, J.A. 183.
(b) Three memoranda from the CIA General Counsel to
the Director, dated 1947-49 (cited in Report, e.g., at 132 n.19,
72 n.7 & 492 n.70). These documents are internal CIA memo-
randa which were not prepared for testimony on the cited
legislation and were in no way used in the legislative process.
See Wilson Affidavit, J.A. 183.
(c) Three transcripts of Congressional testimony, dated
1975 (cited in Report, e.g., at 141 n.1, 1383 n.27 & 483 n.32).
These documents postdate by 26 years the legislation cited by
plaintiffs; the testimony was not given in hearings on that
legislation.
(d) Three internal CIA memoranda, dated 1961-74, and
one memorandum prepared by the Justice Dept., dated 1962
(cited in Report, e.g., at 128 n. la, 1383 n.25, 478 n.10 & 133
n.26). These documents postdate by 13 years the legislation
cited by plaintiffs; none of the memoranda was prepared for
testimony on that legislation. See Wilson Affidavit, J.A. 183.
(e) Three draft legislative histories of the CIA prepared
by the CIA Legislative Counsel’s Office, dated 1967 (cited in
Report, e.g., at 71 n.5 & 480 n.19). These documents postdate
by 18 years the legislation cited by plaintiffs; none constitutes
a report or hearings on that legislation and none was prepared
for testimony on that legislation. See Wilson Affidavit, J.A.
183.
* Hearings before the Senate Armed Services Comm. on S.
758 (1947), Hearings before the House Comm. on Expendi-
tures in the Executive Departments on H. R. 2139 (1947)
(cited in Report, e.g., at 72 n.6). The Hearing Transcript
identified by the CIA contains some of the testimony taken at
the House hearings. Plaintiffs seek, and the CIA denies pos-
session of, transcripts of the remainder of the testimony taken
at those hearings.
8 J.A. 183.
29a
Since the transcripts are Congressional materials, and
since there is no indication in the Church Committee
Report that the transcripts were received from or re-
turned to the CIA,“ there is no reason to question the
good faith of Wilson’s asseveration.
Third, plaintiffs argue that the CIA’s “pattern of
obfuscation and delay” in dealing with them signals the
Agency’s mala fides. The Agency, they say, first de-
nied having any responsive documents, then found some,
then found some more: these “inconsistent positions”
and this piecemeal disclosure are said to imply bad
faith. We take a different view of the facts. Sara
Holtz originally requested “legislative history,” defined as
Congressional hearings and reports; the CIA not un-
naturally directed her to the Library of Congress. When
Holtz replied that she wanted unpublished hearings and
reports, the CIA identified the Hearing Transcript. When
** The Church Committee Report cites only two documents
that are said to be “‘on file at the CIA.” The first is the “State-
ment of the Director of Central Intelligence { Hillenkoetter]
Before the House Armed Services Committee [on] 8 April
1948” (cited in Report at 494 n.74). This is the “Hillen-
koetter Statement” which the CIA identified and for the most
part released. The second is so-called “Testimony of Gen.
Hoyt S. Vandenberg before the House Armed Services Com-
mittee Hearing on H. R. 5871, 4/8/48” (cited in Report at
495 n.80). The CIA at oral argument denied possession of
this document. We believe that the document in all probability
does not exist. According to the Congressional Record Daily
Digest, the only CIA officials to testify on H. R. 5871 before
the House Armed Services Committee on 8 April 1948 were
Hillenkoetter and Walter Pforzheimer. 94 Cong. Rec. D242
(1948). The error in the Church Committee Report seems
easily explicable. The transcript of Hillenkoetter’s 8 April
1948 testimony was entitled simply “Statement of the Director
of Central Intelligence.” Hillenkoctter was Director in 1948,
and Vandenberg was Director in 1947. Apparently, the report
wrongly attributed the 8 April 1948 statement of the un-
named CIA Director to Hillenkoetter’s predecessor.
30a
Goland and Skidmore said that they wanted not only
hearings and reports, but Executive Branch back-up
documents, the CIA identified the Vandenberg and Hillen-
koetter Statements. The Agency’s “piecemeal” pattern
of disclosure followed faithfully the piecemeal pattern
of requests, and thus here indicated, if anything, good
faith rather than bad; indeed, this Court held as much
in Weissman v. CIA. The Agency’s responses were not
always timely; but in view of the well-publicized prob-
lems created by the statute’s 10- and 20-day time limits
for processing FOIA requests and appeals,” the CIA’s
delay alone cannot be said to indicate an absence of
good faith.
The dissent, while not seriously questioning the CIA’s
good faith, says that discovery is needed in any event
to ascertain whether the CIA personnel conducting the
search used an “underinclusive” definition of “legislative
history.” *" We disagree. The CIA personnel conducting
the search evidently used the definition of “legislative
history” that plaintiffs gave them, namely, “hearings,
reports, and Executive Branch back-up documents.” That
this is so is suggested by the fact that the CIA’s search
°° 565 F.2d at 698 (footnote omitted) :
The CIA dealt with the instant request in a conscien-
tious manner. It disclosed much material, it released
additional material as the result of an administrative ap-
peal, and it came forward with newly discovered docu-
ments as located. Agency documents have been released
to plaintiff-appellant on four separate occasions.
See Fonda v. CIA, 484 F.Supp. at 502, appeal docketed, No.
77-1989 (D.C. Cir. 4 Nov. 1977): “The CIA dealt with plain-
tiff’s request in a conscientious manner. It disclosed much
material and it came forward with newly discovered docu-
ments as located. .. .”
*° See J. T. O’REILLY, supra note 30, at J 7.02.
* See diss. op. at 22.
cosa
3la
produced hearings, reports, and Executive Branch back-
up documents. Nor do we think discovery was necessary
to enable plaintiffs “to reformulate their request to elimi-
nate confusion and the possibility of future lawsuits.” *
“Legislative history” admittedly is not a term whose
meaning can be nicely cabined within bright lines; but
it is the term plaintiffs used, and if any ambiguity was
introduced thereby plaintiffs must reap what they have
sown. It would be bizarre indeed if a plaintiff, simply
by employing ambiguous language in his FOIA request,
could assure himself of potentially harassing discovery
for the purpose of dispelling the confusion he had en-
gendered.
We hold, therefore, that plaintiffs have made no show-
ing of CIA bad faith sufficient to impugn the Wilson
affidavit, which on its face suffices to demonstrate that
the CIA’s search for responsive documents was complete.
For this reason, the district court’s grant of summary
judgment without discovery was within its discretion.
D. The CIA’s Definition of Agency “Records.”
Plaintiffs contend that the CIA’s definition of agency
“records” is unduly narrow,’ and that they have been
injured because the Agency relied on this definition in
denying them records to which they are entitled. The
CIA responds that plaintiffs lack standing to maintain
8 See id. at 238.
% 32 C.F.R. § 1900.3(¢) (1976) defined CIA “records” to
exclude (1) certain indexing and filing documents; (2) certain
routing and transmittal sheets; (3) books and periodicals; (4)
documents prepared by an agency other than the CIA; and (5)
documents furnished by foreign governments under promise
of confidentiality. The definition was amended in 1977 and
the latter two exclusions were removed. See 42 Fed. Reg.
24,049 (12 May 1977) (codified at 32 C.F.R. § 1900.3(g)
(1977) ).
32a
this challenge, arguing that it did not rely on the defini-
tion’s “exceptions” in processing plaintiffs’ request. The
district court did not reach this issue. We do not reach
it either. We have held that the CIA made a full search
in good faith for responsive documents, and that the
withheld material was withheld properly. Since plaintiffs
have received all documents to which they are entitled,
no live controversy remains between them and the CIA
on the definitional issue.
E. Attorneys’ Fees.
The trial judge declined to award attorneys’ fees to
plaintiffs. The FOIA provides that attorneys’ fees and
costs may be assessed against the United States “in any
case . . . in which the complainant has substantially
prevailed.” *° Although a cursory reading of this opinion
would not suggest that plaintiffs have passed this test,
they argue that even if all relief should be denied them
they have “substantially prevailed” because the CIA re-
leased the Vandenberg Statement and portions of the
Hillenkoetter statement after they commenced suit. Even
if plaintiffs could show some causal nexus between their
litigation »nd the CIA’s disclosure,’ which they have
not done,"’* we doubt that plaintiffs could be said to
5 U.S.C. § 552 (a) (4) (E) (1976).
'" See Vermont Low Income Advocacy Council, Inc.
(VLIAC) Vv. Usery, 546 F.2d 509, 518 (2d Cir. 1976) (Friend-
ly, J.):
In order to obtain an award of attorney fees in an
FOIA action, a plaintiff must show at minimum that the
prosecution of the action could reasonably have been re-
garded as necessary and that the action had substantial
causative effect on the delivery of the information.
*? Res ipsa loquitur, as it were, is of no assistance to plain-
tiffs here. The CIA’s release of the Statement, to all appear-
ances, represents its good-faith efforts to come forward with
33a
have “substantially prevailed” if they, like Pyrrhus, have
won a battle but lost the war.’”
The judgment of the district court accordingly is
Affirmed.
newly-discovered documents as located. See p. 30 & note
95 supra. The fact that these documents were released after
plaintiffs brought suit on 28 Jan. 1977, to all appearances,
owes to the time-consuming nature of a search for materials
“used to prepare for congressional testimony,” p. 26 supra;
and to the fact that plaintiffs did not request access to such
materials until 16 Dec. 1976. See pp. 4-5 supra. Plaintiffs’
argument, in fine, boils down to post hoc, ergo propter hoc, a
fallacy that Congress wisely refrained from incorporating
into the attorneys’ fees provision of FOIA. See VLIAC, 546
F.2d at 514.
*3 In order to win the war, plaintiffs need not obtain a
judgment in court. See Cuneo v. Rumsfeld, 553 F.2d 1860,
1364-65 (D.C. Cir. 1977) (Tamm, J.) (citing cases) ; VLIAC,
546 F.2d at 513. They must, however, substantially prevail.
Cf. Cuneo, 553 F.2d at 1365 (plaintiffs substantially pre-
vailed where, “[a]fter almost eight years of tedious, hard
fought litigation, the government, faced with the appointment
of a special master to review the case,” supplied all the mate-
rial requested). Even if the plaintiff is held to have substan-
tially prevailed, the award of attorneys’ fees lies within the
district court’s discretion. See Cuneo, 553 F.2d at 1365-66 ;
VLIAC, 546 F.2d at 512-13 (citing legislative history). An
important factor in the exercise of this discretion is a deter-
mination whether the agency has been “recalcitrant in its
opposition to a valid claim or [has] otherwise engaged in ob-
durate behavior.” Cuneo, 553 F.2d at 1866. The CIA’s be-
havior was neither recalcitrant nor obdurate here.
34a
BAZELON, Circuit Judge, dissenting: I respectfully sub-
mit that the court today departs from well-established
principles in this circuit in order to sustain summary
judgment for the Central Intelligence Agency (CIA).
The court also adopts a restrictive definition of “agency
records” that erodes the right to disclosure under the
Freedom of Information Act’ (FOIA) and promotes
secret law.
I. THE NEED FOR DISCOVERY IN FOIA CASES
Without discovery, a party to litigation may not have
access to facts necessary to oppose a motion for summary
judgment. This problem is especially acute for plain-
tiffs in FOIA cases. Indeed, recognition of this dilemma
has shaped a number of our decisions. In Vaughn v.
Rosen, 484 F.2d 820 (D.C.Cir. 1973), cert. denied, 415
U.S. 977 (1974), summary judgment was granted to
the government on the basis of an affidavit declaring
that the documents sought were exempt from disclosure.
We reversed, recognizing that a FOIA plaintiff “ob-
viously cannot know the precise contents of the docu-
ments sought; secret information is, by definition, un-
known to the party seeking disclosure[,]” 484 F.2d at
823; that “[t]his lack of knowledge . . . seriously dis-
torts the traditional adversary nature of our legal sys-
tem’s form of dispute resolution[,]” id. at 824; and that,
although “formal” discovery under the Federal Rules
of Civil Procedure was not at issue,’ procedures would
‘5 U.S.C. § 552 (1976).
* The sole issue in Vaughn was whether the agency had
demonstrated by affidavit that the documents sought were
exempt from disclosure. Plaintiff simply contested the suffi-
ciency of the affidavit. 484 F.2d at 823. He did not attempt
to bolster his case by serving interrogatories on agency
officials, Rule 33, Fed.R.Civ.P., or by deposing them, Rules 30
35a
have to be instituted to provide FOIA plaintiffs informa-
tion roughly equivalent to what they would obtain through
such discovery. “[CJourts will simply no longer accept
[from the defendant agency] conclusory and generalized
allegations of exemptions . . . but will require a relatively
detailed analysis in manageable segments [of the con-
tents of documents the agency seeks to withhold].” Jd.
at 826. We held such a procedure necessary—before
summary judgment could be granted to the government—
to enable a FOIA plaintiff “to argue with desirable legal
precision for the revelation of the concealed informa-
tion.” Id. at 823.
Subsequently, the problem of ensuring adversariness
arose in a context similar in several respects to the case
at bar. In Schaffer v. Kissinger, 505 F.2d 389 (D.C.
Cir. 1974) (per curiam), before plaintiff was able suc-
cessfully to pursue discovery, summary judgment was
granted to the government on the basis of an affidavit
stating that the documents plaintiff sought were classified
“confidential” pursuant to Executive Order 11652, 3
C.F.R. 339 (1974), 50 U.S.C. § 401 (Supp. IV 1974).
This court reversed, emphasizing that plaintiff had also
and 31. Thus the question whether discovery under the rules
should be permitted was not involved in the case.
In the present case, by contrast, plaintiffs urge that proper
ventilation of the issues requires both discovery and more
detailed affidavits. Plaintiffs seek to discover the circum-
stances surrounding the creation, and possession by the CIA,
of the “hearing transcript,” Part II, infra; the procedures and
substantive criteria observed in classifying the “Hillenkoetter
statement,” Part III(A), infra; the breadth of the CIA’s
search for responsive documents and the reasons for delay,
Part IV, infra; and whether the agency’s decision to disclose
certain materials was prompted by this lawsuit, Part V, infra.
In addition, plaintiffs contend that the affidavits filed by the
CIA fail adequately to describe specific materials withheld
and the reasons for nondisclosure, Parts II n.8 and III(B),
infra.
36a
filed an affidavit, as provided for by Rule 56(f), Fed.
R.Civ.P.,’ stating his belief that genuine issues existed
as to whether the classification was properly effected and
indicating that he could not verify that belief without
discovery. The court based its holding on the language
of Rule 56(f),* the policies underlying the FOIA, and
common sense:
Facts respecting the classification of the reports in
question are solely in the control of the [defyxdant
agency]. [Plaintiff] should be allowed to undertake
discovery for the purpose of uncovering facts which
might prove his right of access to the documents
which he seeks.
505 F.2d at 391. It is significant that there was no
evidence in Schaffer bolstering plaintiff’s claim that the
affidavit submitted by the defendant agency was either
executed in bad faith or was somehow erroneous. With-
out discovery, plaintiff had no means of producing such
evidence. Relying solely on his Rule 56(f) affidavit, the
court remanded the case with instructions to permit
plaintiff to undertake discovery relevant to whether the
reports in question were properly classified “confidential.”
Today the court ignores both Schaffer and the “over-
whelming emphasis [the FOIA places] upon disclosure,”
which guided our analysis in Vaughn. 484 F.2d at 823.
It does so in its zeal to protect the CIA from the burden
of processing meritless FOIA requests for vital security
information. I believe that such protection is available
°(f) When affidavits Are Unavailable. Should it appear
from the affidavits of a party opposing the motion that he
cannot for reasons stated present by affidavit facts essential
to justify his opposition, the court may refuse the application
for judgment or may order a continuance to permit affidavits
to be obtained or depositions tu.be taken or discovery to be
had or may make such other order as is just.
* See note 3 supra.
37a
without eroding the requirements of the FOIA. First of
all, the CIA has made no claim that preparation of the
index mandated by Vaughn v. Rosen would have been
either overly burdensome or likely to disclose matters
that should be kept secret. Moreover, the CIA offers
neither evidence nor reason to find that a complete bar
to discovery was necessary to protect its personnel from
harassment. Proper supervision of the discovery process,
as described in the margin,’ could have avoided such
problems. Through indexing and discovery the adversary
system would have worked to maximize the probability
that nonexempt information would be disclosed, thus ful-
filling the central purpose of the FOIA.°
‘>The Federal Rules leave discovery in the hands of the
parties in the first instance. The district court is charged
with supervising the process when disputes arise. Thus, if the
CIA believed plaintiffs’ requests for discovery to be burden-
some or otherwise objectionable, it had several alternatives
to a motion for summary judgment that were more consonant
with the Spirit of the FOIA. It could, for example, have
served objections to specific interrogatories on plaintiffs, who
then would have had to decide whether to move in district
court to compel answers under Rule 87(a) (2). The CIA
could itself have moved in district court to terminate or limit
a deposition, Rule 30(d), or for a protective order, Rule 26(c).
he grounds for such a protective order, like those for refus-
ing to answer specific questions, are generous. The district
court “may make any order which justice requires to protect
a party from annoyance, embarrassment, oppression, or undue
burden or expense... .” Jd. The district court may also, of
course, recognize any privilege asserted by a party seeking to
resist discovery. Rule 26(c) (6). Thus discovery would neither
have overly burdened the agency nor jeopardized its legitimate
secrets, but would have provided both plaintiffs and the dis-
trict court the information necessary to make the FOIA work.
® See generally S.REP.NO. 818, 89th Cong., Ist Sess. (1965) ;
H.R.Rep.No. 1497, 89th Cong., 2d Sess. (1966). The Senate
Report states unequivocally that “[i]t is the purpose of the
present bill . . . to establish a general philosophy of full
agency disclosure unless information is exempted under
38a
In sum, I submit that the grant of summary judgment
to the CIA was premature. This position is reinforced
by the factual ambiguity which pervades this record
and which is exacerbated by the questionable legal stand-
ard on which the court distinguishes “agency records”
from “congressional documents in an agency’s possession.”
II. THE MAJORITY’S “CONTROL/PROPERTY” TEST
The dispute in this case centers on two documents
which the CIA admittedly possesses and on the scope of
the CIA’s search for additional documents responsive to
plaintiffs’ request for “legislative history.” The first
document is a photostatic copy of a transcript containing
the minutes of hearings conducted by the House Com-
mittee on Expenditures in the Executive Department on
June 27, 1947. (Hereinafter referred to as the “hearing
transcript.”) The second document is entitled ‘“State-
ment of the Director of Central Intelligence before the
House Armed Services Committee—8 April 1948.” (Here-
inafter referred to as the “Hillenkoetter statement.’’)
My brothers agree with the CIA’s contention that the
hearing transcript is simply unavaiiable to the public,
whether or not specifically exempted from disclosure by
the FOIA.’ They find that the transcript is a “con-
clearly delineated statutory language... .” S.REp.No. 813,
supra, at 3. See also H.R.REP.NO. 1497, supra, at 3.
For a brief discussion of the history and purposes of the
FOIA, see EPA v. Mink, 410 U.S. 73, 79-80 (1973).
‘This is our first occasion to consider an agency’s claim
that the FOIA does not apply to information in its possession.
Compare, e.g., Soucie v. David, 448 F.2d 1067 (D.C.Cir. 1971),
in which the issue was whether the Office of Science and Tech-
nology is an “agency” for purposes of the FOIA.
The Court of Appeals for the Tenth Circuit, however, has
considered a claim similar to that raised here by the CIA. In
39a
gressional document,” not an “agency record,” and is
therefore wholly beyond the reach of the Act. The court
reasons that “the circumstances attending [the tran-
script’s] generation and the conditions attached to its
possession by the CIA” plainly reveal that it “‘remains
under the control and continues to be the property of the
House of Representatives.” Maj. op. at 12-13 (emphasis
added). This conclusion is reached as a matter of law,
thus eliminating any justification for discovery, on the
basis of representations by CIA officials. The agency has
stated by affidavit that the transcript contains testimony
taken in Executive Session; typewritten on both the
cover and first page of the transcript is the word
“Secret”; the text reveals that the stenographer and
typist were sworn to secrecy; the CIA retains a copy of
the transcript for “internal reference purposes” only.
Id. at 12, J.A. at 80.
In my view, the record in this case establishes as a
matter of law that the hearing transcript is an “agency
record,” and the court is empowered to order it with-
held only if it qualifies for nondisclosure under FOIA
exemptions one or three.* First of all, the CIA claims
Cook v. Willingham, 400 F.2d 885 (10th Cir. 1968) (per
curiam), the court decided that presentence reports are not
“agency records” even though in the possession of prison
authorities. I disagree. See note 18 infra.
*5 U.S.C. §§552(b) (1), (3) (1976). I submit that
the exemption one issue cannot be resolved on this record
since the CIA has failed to reveal whether the procedures it
followed in classifying the transcript comport with the require-
ments of Executive Order No. 11652. The Affidavit of George
L. Cary, Legislative Counsel of the CIA (hereinafter “Cary
Affidavit”), J.A. at 81, states only that a “Secret” classifica-
tion marking has been affixed on the face of the transcript.
Tt does not mention the other requirements contained in the
Executive Order. See generally Part III(A) infra. I suggest
also that neither exemption one nor exemption three can be
40a
to have had exclusive possession of this document for
more than thirty years.” More importantly, the CIA
acknowledges that it employs this information in in-
terpreting its organic legislation °—i.e., in making de-
cisions with respect to policy and operations. The Act
does not define “agency records.” But the House and
Senate reports reveal that the fundamental purpose of
the FOIA was to open administrative policy and opera-
tions to the light of public scrutiny.”
held applicable to the transcript until the CIA files an itemized
description of its contents. See generally id.; Part III(B)
infra.
* Although no explanation of “agency records” is provided
either in the FOIA itself or in the legislative history, the
Justice Department has suggested that the Act requires dis-
closure of “records in being and in the possession or control
of an agency.” R. Clark, Attorney General’s Memorandum on
the Public Information Section of the Administrative Proce-
dure Act 23 (1967), reprinted in Freedom of Information Act
Source Book, S. REP. No. 82, 938d Cong., 2d Sess. 222 (1974)
(emphasis supplied) (hereinafter “Attorney General’s Memo-
randum”). This interpretation supports plaintiffs’ position
that possession suffices and is consistent with the general
view advanced here that any attempt by the courts to define
“agency records” must be shaped primarily by the policy of
full disclosure underlying the Act. See notes 6 supra and 12
infra.
” The Cary Affidavit states that the agency uses the tran-
script “in conjunction with congressional action on legislation
dealing with the establishment of the Office of the Director
of Central Intelligence, the Central Intelligence Agency and
its functions.” J.A. at 80.
The reports indicate that the FOIA was intended to
strengthen the Public Information section of the Administra-
tive Procedure Act, 5 U.S.C. § 1002 (1964), which was “drawn
upon the theory that administrative operations and proce-
dures are public property which the general public, rather
than a few specialists or lobbyists, is entitled to know or
4la
I also find the court’s “control/property” test unper-
suasive. We are not told what it meant by congressional
“control” over a document in an agency’s possession; or
in what sense such a document can be considered congres-
sional “property.” The fact that Congress is a non-agency
does not preclude a document or copy of a document it has
created from ever qualifying as an “agency record.”
Federal agencies regularly receive documents created by
non-agencies that obviously become “agency records” in
the ordinary course. See, e.g., Washington Research
Project, Inc. v. HEW, 504 F.2d 288 (D.C. Cir. 1974)
(grant application submitted to National Institute of
Mental Health by noncommercial research scientist) ;
Irons v. Gottschalk, 369 F.Supp. 403 (D.D.C. 1974)
(patent applications). Nor can the court rely on the
view that because Congress may have somehow forbidden
the CIA to disclose the transcript, thus exercising ‘“con-
trol” over its contents, the transcript cannot be con-
sidered an “agency record.” “Control” in this sense goes
to the question whether a document is exempt from dis-
closure—not to whether it is an “agency record.” * In
have ready means of knowing with definiteness and assur-
ance.” H.R.REP.NO. 1497, 89th Cong., 2d Sess. 3 (1966)
(quoting from H.R.REP.NO. 752, 79th Cong., Ist Sess. 198
(1945). See also S.REP.NO. 813, 89th Cong., Ist Sess. 8
(1965) (“[T]he very purpose for which [the Public Informa-
tion Section] ‘was intended [was to guarantee] the public’s
right to know the operations of its government.’’) ; Dept. of
the Air Force v. Rose, 425 U.S. 352, 361 (1976); SOC De-
velopment Corp. v. Mathews, 542 F.2d 1116 (9th Cir. 1976).
My brothers would facilitate the flow of information be-
tween Congress and the Executive branch, maj. op. at 11, at
the prohibitive cost of perpetuating the “secret law” we have
condemned so frequently. See, e.g., Tax Analysts & Advocates
v. IRS, 505 F.2d 350, 353 (D.C. Cir. 1974) ; Cuneo v. Schles-
inger, 484 F.2d 1086, 1091n. 13 (D.C. Cir. 1973).
2 This view of congressional “control” derives from the
history of the FOIA as well as its plain language. Before the
FOIA was enacted, the disclosure provisions of the Adminis-
42a
every exemption 3 case, for example, the ultimate ques-
tion is whether Congress has forbidden the agency to
trative Procedure Act allowed agencies to withhold informa-
tion “in the public interest,” or “for good cause shown,” or on
the ground that the person seeking the record was not “prop-
erly and directly concerned.” 5 U.S.C. § 1002 (1964). The
FOIA was designed specifically to eliminate these discretion-
ary standards. Soucie v. David, 448 F.2d 1067, 1076-77 (D.C.
Cir. 1971) ; Bristol-Myers Co. v. FTC, 424 F.2d 935, 938 (D.C.
Cir. 1970); American Mail Line, Ltd. v. Gulick, 411 F.2d
696, 699 (D.C. Cir. 1969); H.R.REP. No. 1497, 89th Cong.,
2d Sess. 1-2, 5-6, 8-9, 11 (1966) ; S.REP. No. 813, 89th Cong.,
Ist Sess. 3-6, 8, 10 (1965). Congress replaced them with a
general requirement that all “records” be disclosed, 5 U.S.C.
§ 552(a) (3) (1976), offset by nine—and only nine—cate-
gories of privileged material. Id. § 552(b) (1)-(9). To avoid
the creation of new loopholes, Congress expressly limited
the grounds for nondisclosure to those specified in the ex-
emptions: “This section does not authorize withholding in-
formation or limit the availability of records to the public,
except as specifically stated in this section.” Id. § 552(c) (em-
phasis supplied).
My colleagues justify their view of congressional “control”
on the theory that “Congress has broad powers to keep its
documents secret .. . [and does not] waive[] its... preroga-
tives of confidentiality” when it transfers a “secret” docu-
ment to an agency. Maj. op. at n.48.
I think it is fair to say that the court creates a tenth exemp-
tion for documents subject to what it terms “congressional
prerogatives of confidentiality.” To be sure, there can be no
doubt about the existence of congressional power to maintain
the secrecy of congressional proceedings, see U.S. Const. art.
I, § 5, and thus to preserve the secrecy of documents in which
the minutes of those proceedings are transcribed. The ques-
tion in this case, however, is not whether such a power exists,
but whether Congress continues to exercise it after transfer-
ring a document to an agency on an ostensibly permanent
basis.
I read the FOIA as an unequivocal declaration by Congress
that documents which have become part of the administrative
process are subject to full disclosure unless specifically ex-
empted.
sD re |
43a
disclose the records sought. To illustrate, 26 U.S.C. § 7213
(a) (1) makes it unlawful “to divulge to any person the
amount of income... set forth . . . in any income re-
turn... .” This proscription does not mean that tax
returns are not “agency records.” Rather, tax returns
are agency records that must be withheld under exemp-
tion 3. See, e.g., Tax Analysts & Advocates v. Internal
Revenue Service, 505 F.2d 350 (D.C.Cir. 1974).
It appears that the court would supplement the ele-
ment of “control” with other concepts having to do with
“property.” The court’s ultimate position, as I see it,
would be that Congress has a property interest in, as
well as control over, the contents of the transcript, the
paper on which the contents are typed, and any copy
of the transcript. But so sweeping a notion of congres-
sional control and property is plainly at odds with the
majority’s concession that the Hillenkoetter statement is
an “agency record.” Maj. op. at 15. Both the tran-
script and the Hillenkoetter statement contain testimony
originally prepared by intelligence officials and subse-
quently delivered secretly before Congress. J.A. at 79-
82. There is no logical reason to believe, and none has
been suggested, that Congress would have an interest
in controlling the testimony in one but not the other.
The transcript contains, in addition to testimony, ques-
tions and comments by committee members. Perhaps,
then, the testimony should be considered the property
of the Executive branch, where it originated, and the
comments the property of Congress. If so, to the extent
the transcript consists of nonexempt testimony it should
be disclosed under the majority’s own rationale." The
‘The majority asserts that this argument is “frivolous”
because “the [hJearing [t]ranscript is not an agency record
.. +. Maj. op. at n. 47. In so doing the majority not only
overlooks the “property” element of its own test, but also
assumes its conclusion. As I understand the legal standard
44a
only further difference between the two documents that
is even arguably material is that the copy of the Hillen-
koetter statement which the CIA possesses was ap-
parently typed by agency employees, while the CIA’s
copy of the transcript was transcribed and typed by
employees of Congress. As I have indicated, the origin
of a piece of paper is simply not dispositive of the ques-
tion whether it qualifies as an “ageney record.”
the court proposes, the question whether a document is an
“agency record” requires consideration of whether the docu-
ment is the “property” of an agency. Surely, then, the major-
ity must consider whether the testimony contained in the
transcript is the “property” of the Executive branch.
That the majority fails to consider fully the perplexity of its
“property” rationale is reflected also by its reliance on Cook
v. Willingham, 400 F.2d 885 (10th Cir. 1968) (per curiam).
In that case the court held that a presentence report in the
hands of prison authorities was not an “agency record” be-
cause it “was made for the use of the sentencing court and
thereafter remains in the exclusive control of that court de-
spite any joint utility it may eventually serve.” Jd. Perhaps
the sentencing court can be said to have a “property” interest
in a presentence report since such reports are prepared for
that court by an arm of that court—the United States Proba-
tion Office. See Rule 32(c) (1), Fed.R.Crim.P. Since the con-
tents of a presentence report originate with the courts, how-
ever, not with the Executive branch, such reports would ap-
pear distinguishable under the majority’s standard from the
testimony contained in the hearing transcript at issue here.
In any event, I believe that Cook was wrongly decided. The
brief opinion in that case fails to clarify exactly how the sen-
tencing court exercises control over a document in the pos-
session of prison authorities. Moreover, the opinion fails to
envision the possibility that the sentencing court could ever
relinquish such control. In my view, once the prison authori-
ties had possession of the report for use in connection with
administrative decisions (e.g., parole release), the report be-
came a quintessential “agency record.” See note 11 supra and
accompanying text.
a
45a
In any case, even assuming the “control/property”
standard is the correct one, factual ambiguities in the
record would preclude summary judgment. If Congress
does, generally speaking, exert control over, and main-
tain property interests in, documents possessed by fed-
eral agencies, the majority’s test generates a need to
ascertain the methods by which such control is exercised
and relinquished, and the means by which such property
interests are created and extinguished. In this case dis-
covery is necessary specifically to determine whether
Congress or the committee that conducted the hearings
ever instructed the CIA to preserve the secrecy of the
transcript, and, if so, for how long. Apparently the
transcript itself contains no such express instruction, and
the CIA concedes that the source of the “Secret” classi-
fication is unknown. J.A. at 80. The fact that the
committee met in Executive Session serves only to raise
further questions concerning the nature of the “long-
standing practice” governing secrecy of such sessions to
which the majority refers. Maj. op. at n.45."* Also,
‘The majority acknowledges that H.R. Rule XI(1) (k) (7),
which governs disclosure of testimony taken in Executive
Session of the House of Representatives, did not exist in 1947,
when the hearings in question were conducted. Maj. op. at
n. 45. The majority states, however, that “the Rule simply
formalized long-standing practice . . . [requiring that] ‘all
testimony taken in executive hearings ... be secret and... not
be released . . . without the approval of a majority of the sub-
committee.’” Id. (quoting from S.REP.No. 5, 81st Cong., 1st
Sess., 3-4 (1949) ).
The “practice” to which the court refers is ambiguous at
best. For one thing, the court relies on practice in the Senate,
and the House may have functioned differently. And the prac-
tice of either branch of Congress may have provided for dis-
closure without approval by committee after a specified dura-
tion. Moreover, assuming Senate practice is relevant, the court
should consider whether disclosure of portions of the transcript
by the Church Committee, see note 15 infra, might substitute
for approval by the committee that originally conducted the
hearings.
46a
discovery is necessary to determine whether, in the thirty
years during which the CIA has possessed the transcript,
it has ever acted inconsistently with congressional ‘“con-
trol,” as by disclosing the contents of the transcript to
other agencies or individuals without seeking congres-
sional authority. Finally, plaintiffs should be permitted
to pursue further the question whether Congress itself
has explicitly or implicitly indicated that it no longer
considers preservation of the transcript’s secrecy to be
crucial. Even without discovery plaintiffs have demon-
strated that the Church Committee has published por-
tions of the transcript.”
III. THE CIA’s CLAIMS OF EXEMPTION
The majority adopts the CIA’s declaration by affidavit
that the withheld portions** of the Hillenkoetter state-
ment are exempt from disclosure as a matter of law on
grounds of national security. This result is reached by
two separate paths—directly, under FOIA exemption one,
5 U.S.C. §552(b)(1) (1976), and indirectly, by in-
corporating into FOL[A exemption three, id., § 552(b) (3),
the nondisclosure provisions of the National Security Act
of 1947, 50 U.S.C. § 403(d) (8), and the Central Intelli-
gence Agency Act of 1949, 50 U.S.C. § 403g. See gen-
erally Maj. op. at 15-23. The majority may well be cor-
rect in concluding that disclosure of the withheld ma-
terial would threaten our national security. Congress,
* The Church Committee Report, Foreign and Military In-
telligence, Final Report of the Select Committee to Study
Governmental Operations with respect to Intelligence Activi-
ties, S.REP.NO. 94-755, 94th Cong., Ist Sess., pt. I (1976),
refers to or quotes from the hearing transcript at 72n. 6;
129n. 2, 7; 136n. 32-34; 138n. 41a; 480n. 17, 487-488n. 53; and
488n. 56-57.
1° The CIA has deleted approximately 20%, or 23 pages, of
the Hillenkoetter statement. Brief for the Government at 21.
47a
however, has unambiguously expressed its intention that
such determinations shall be made de novo. 5 U.S.C. § 552
(a) (4) (B) (1976).° The affidavits submitted by the
CIA are no substitute.
A. Exemption One *
In the case of exemption one the district court must
determine the propriety of a document’s classification
according to “both procedural and substantive criteria
contained in the Executive Order under which it was
17 Congress made its will clear in Pub.L.No. 93-502, 88
Stat. 1561 (1974), which amended the FOIA in part to over-
rule the decision by the Supreme Court in EPA v. Mink, 410
U.S. 73 (1973). In Mink the Court had interpreted 5 U.S.C.
§ 552(b) (1), which exempted from disclosure those matters
“snecifically reauired by Executive order to be kept secret
in the interest of the national defense or foreign policy,”
not to allow judicial review of Executive security classifica-
tions and accordingly not to allow in camera inspection of
a contested document bearing a security classification so that
nonsecret matter could be separated from secret matter and
ordered disclosed. 410 U.S. at 81-84. Congress responded
by amending the language of § 552(b) (1), see note 18 infra,
to provide clearly for judicial review of both the procedural
and substantive propriety of the classification. It also specified
that where the documents sought are withheld on the basis
of any of the nine exemptions, “the court shall determine
the matter de novo, and may examine the contents of such
agency records in camera to deter 1ine whether such records
or any part thereof shall be withheld... .” Pub.L.No. 93-
502, §1(b) (2), 88 Stat. 1562 (1974); see also H.R.REP.NO.
1380, 93d Cong., 2d Sess., 2, 12 (1974).
18 FOIA’s first exemption immunizes from disclosure those
matters that are
(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) are in fact
properly classified pursuant to such Executive order.
5 U.S.C. §552(b) (1) (1976).
48a
classified.” Zweibon v. Mitchell, 516 F.2d 594, 642 (D.C.
Cir. 1975) (quoting from H.R. REP.NO.1380, 93d Cong., 2d
Sess., 12 (1974)); see also Halperin v. Department of
State, No. 76-1528 (D.C. Cir. Aug. 16, 1977), slip op.
at 7. Such determinations could not have been made
on the record in this case because the affidavit submitted
by the CIA fails to reveal the date on which the Hillen-
kotter statement was originally classified. J.A. at 81.
Without discovery, the district court could merely specu-
late about which Executive Order, if any,’® governed the
original classification.
The district court apparently relied on an asserted
reclassification of the Hillenkoetter statement in con-
cluding that “the withheld portions . . . have been
properly classified according to the provisions of Execu-
tive Order No. 11652,” J.A. at 189, which is the Order
presently in force. See 3 C.F.R. 339 (1974), 50 U.S.C.
§ 401 (Supp. IV 1974). Perhaps discovery pertaining to
the validity of the original classification would be un-
necessary if reclassification under Executive Order No.
11652 had been properly effected. The district court,
however, was plainly in error. Section 4(A) of the
1° The record reveals only that the Hillenkoetter statement
was prepared in April, 1948. At that time, there was no
Executive Order in existence governing all security classifica-
tions. The first such Order was issued in 1950 by President
Truman. See Executive Order No. 10290, 3 C.F.R. 789 (1953).
The Office of War Information, however, had in 1942 issued
a government-wide regulation dealing with security classifica-
tion under the authority of Executive Orders 9103 and 9182.
See Office of War Information Regulation No. 4, issued Sept.
28, 1942, amended, Nov. 18, 1942. See generally H.R.REpP.No.
93-221, 938d Cong., Ist Sess., 4-14 (1973). This regulation
established both substantive criteria and procedural require-
ments. See id. at 7. Thus, assuming the Hillenkoetter state-
ment was classified originally in 1948, discovery was neces-
sary to determine whether these substantive criteria and pro-
cedural requirements were followed.
49a
Executive Order requires that classified material “show
on its face its classification and whether it is subject
to or exempt from the General Declassification Schedule.
It shall also show the office of origin, the date of prepara-
tion and [the date of] classification ... .” Excepting
that the word “Secret” and the date of preparation ap-
pear on the face of the Hillenkoetter statement, J.A. at
80, there is no indication in the record that these pro-
cedures were followed.
We said recently in Halperin v. Department of State,
No. 76-1528 (D.C.Cir., Aug. 16, 1977), that the govern-
ment cannot claim a statutory exemption from the
FOIA if it has failed to comply with the procedures
necessary to give such exemption effect.”
20 See also Schaffer v. Kissinger, supra.
In Halperin, we did not hold that the document in ques-
tion necessarily had to be disclosed to plaintiff. Rather, we
remanded the case to the district court for a determination
of whether disclosure would “do grave damage to the national
security ....” Id., slip op. at 14-15. The decision to remand
was made reluctantly:
Having failed to follow the procedures established by
their own branch of government, appellants ask us in
effect to save them from the consequences of that failure
by providing an exemption the Congress did not create.
The power of a court to refuse to order the release
of information that does not qualify for one of the nine
statutory exemptions exists, if at all, only in “exceptional
circumstances in which a court could fairly conclude that
Congress intended to leave room for the operation of
limited judicial discretion.” The need for this restric-
tion on the power of the courts is apparent here. A
broad judicial power to refuse to order disclosure of non-
exempt information that a court feels would damage the
national interest could obviously operate to frustrate
the requirements of FOIA.
Id. at 14 (citations omitted). Narrowly circumscribing its
discretion, we directed the district court to be “guided by an
50a
B. Exemption Three *
In the case of exemption three the district court must
determine whether the material withheld is specifically
exempted from disclosure by statute. I have no quarrel
with the court’s holding that 50 U.S.C. §§403(d) and
408g specifically require that “intelligence sources and
methods” be kept secret. Maj. op. at 16-19. I believe the
court is mistaken, however, in eschewing “discovery or
in camera inspection to test for the presence of segrega-
ble, non-exempt material” on what is essentially the
ground that “the Agency has already segregated and re-
leased 80% of the Hillenkoetter statement to plaintiffs.”
Id. at n.65. This rationale violates the court’s statu-
tory responsibility to undertake de novo review for “rea-
sonably segregable material,” 5 U.S.C. § 552(b) (1976) ;
Department of the Air Force v. Rose, 425 U.S. 352, 374
(1976), and places the disclosure decision squarely in
the hands of the CIA.”
exacting standard similar to that suggested in Near v. Min-
nesota, [283 U.S. 697, 716 (1931)].” Halperin, slip op. at
16. See also Tax Analysts & Advocates v. IRS, 505 F.2d 350,
855 (D.C.Cir. 1974); Getman v. NLRB, 450 F.2d 670, 678
(D.C.Cir. 1971); Soucie v. David, 448 F.2d 1067, 1077 (D.C.
Cir. 1971).
In this case, as in Halperin, since the agency failed in
reclassifying the Hillenkoetter statement to follow the pro-
cedures necessary to give exemption one effect, there is no
need to address the question whether the reclassification satis-
fied the substantive criteria contained in Executive Order
No. 11652. I should note, however, that for want of an
itemized index of the contents of the Hillenkoetter statement,
see Part III(B) infra, the district court could not possibly
have given the requisite de novo consideration to the ques-
tion of substantive classifiability.
21 FOIA’s third exemption immunizes from disclosure those
matters that are
specifically exempted from disclosure by statute...
provided that such statute (A) requires that the matters
Dla
Our decisions establish that in national security cases
as in all others, summary judgment is proper without
discovery or in camera inspection only if the agency has
submitted an itemized index that “subdivide|s] the docu-
ment under consideration into manageable parts cross-
referenced to the relevant portion of the Government’s
justification.” Vaughn v. Rosen, supra, 484 F.2d at 827.
See also Weissman v. CIA, 565 F.2d 692, 698 (D.C. Cir.
1977) (as amended, April 4, 1977) ; Phillippi v. CIA, No.
76-1004 (D.C.Cir., Nov. 16, 1977), slip op. at 7. Cf. Mead
Data Central, Inc. v. Department of the Air Force, No.
75-2218 (D.C.Cir., Aug. 30, 1977), slip op. at 7-10. Such
an index, as I discussed earlier, “can . . . be subjected
to criticism by the party seeking the document. If in
camera examination of the document is still necessary,
the court will at least have the benefit of being able to
focus on the issues identified and clarified by the ad-
be withheld . .. in such a manner as to leave no discretion
on the issue, or (B) establishes particular criteria for
withholding or refers to particular types of matters to be
withheld.
5 U.S.C. § 552(b) (3) (1976).
22 The court asserts that “[e]xemption 3 differs from other
FOIA exemptions in that its applicability depends less on the
detailed factual contents of specific documents... .”’ Maj. op.
at 20. On the contrary, the applicability of this exemption,
like any other, depends entirely on whether the factual con-
tents of the particular materials withheld are such that the
statutory criteria for nondisclosure are satisfied. The sole dif-
ference between exemption three and other FOIA exemptions
is that in the case of exemption three, these criteria are not
provided by the FOIA itself but by other statutes. For exam-
ple, in the present case the relevant criteria are established
by the National Security Act of 1947, 50 U.S.C. § 403(d) (3),
and the Central Intelligence Act of 1949, 50 U.S.C. § 408g. I
should note that the court appears to realize as much, and
later states that the “withheld material [must be included]
within [the exempting] statute’s coverage. Maj. op. at 21.
d2a
versary process.” Phillippi v. CIA, supra, slip op. at
7; Vaughn v. Rosen, supra, 484 F.2d at 826-828. See
also S.REP.NO. 98-854, 98d Cong., 2d Sess., 14-15 (1974).
The affidavit filed here by the CIA, quoted in part in
the court’s opinion at 21, plainly fails to supply the in-
formation necessary to facilitate the adversary process
and de novo review. First, the affidavit speaks for the
most part only of intelligence “devices,” “sources,” “meth-
ods,” and “operations.” Essentially it parrots the lan-
guage of the exempting statutes, 50 U.S.C. §§ 403(d) (3)
(“intelligence sources and methods”) and 403g (intelli-
gence “functions”), rather than providing the detailed
description the “requesting party [needs] to present its
case effectively,” Mead Data Central, Inc. v. Dept. of the
Air Force, No. 75-2218 (D.C.Cir., Aug. 30, 1977), slip
op. at 9; Vaughn v. Rosen, supra, 484 F.2d at 823-24, 828,
and a reviewing court requires to make an independent
evaluation of an agency’s exemption claims.** Second, as
plaintiffs point out, the affidavit “makes no effort to match
its assertions to given pages or paragraphs in the [Hillen-
*8 My colleagues find that the affidavit “could not have been
much more detailed without ‘compromis[ing] the secret na-
ture of the information.’” Maj. op. at 23 (quoting from
Vaughn v. Rosen, supra, 484 F.2d at 826-27). This may be
true. An affidavit couched essentially in the language of the
exempting statute, however, is plainly of no more usefulness
to plaintiffs or the court than an affidavit simply declaring
that the withheld material qualifies for a particular exemp-
tion. If for some reason agencies must be especially guarded
in describing withheld material in so-called “national security”
cases, the indexing requirement may not provide an adequate
means in such cases of ensuring that the adversary process
works and of facilitating de novo review. It may therefore
be necessary, especially in national security cases, for the Dis-
trict Court to inspect withheld documents, or at least a rea-
sonable sample thereof, in camera. But compare Weissman
v. CIA, supra, 565 F.2d at 697 (“in camera proceedings are
particularly a last resort in ‘national security’ situations.”’).
ay mallet acca
53a
koetter] statement.” Brief for Appellants at 33. For
want of an itemized index, it is impossible to determine
whether all nondisclosed portions of the statement have
been described, much less properly withheld.
IV. THE CIA’s SEARCH FOR RESPONSIVE DOCUMENTS
The court refuses to permit plaintiffs to conduct dis-
covery pertinent to the scope of the CIA’s search for
“legislative history” on the ground that affidavits sub-
mitted by the agency reveal as a matter of law that the
search was thorough. The majority emphasizes the as-
sertion by the agency’s Information and Privacy Co-
ordinator that the “CIA interpreted [plaintiffs’] request
broadly enough to ensure that [it] would locate all docu-
ments within the scope of the request.” Maj. op. at 25;
J.A. at 78. The majority states that “the Agency’s
good faith would not be impugned unless there were some
reason to believe that [additional responsive] documents
could be located without an unreasonably burdensome
search.” Maj. op. at 26. Finding that the CIA did, in
fact, act in good faith, the court refuses to reach plain-
tiffs’ contention that the agency’s definition of “agency
records,” 32 C.F.R. § 1900.3(g¢) (1976), is unduly nar-
row and may have served as an impermissible basis for
withholding otherwise responsive documents. Maj. op. at
31-32.
The court may well be correct in concluding that the
CIA has acted in good faith, and that its search was
24 The CIA’s definition excludes certain (1) “[i]ndex, filing,
and museum documents;” (2) “[rJouting and transmittal
sheets and notes;” (3) “[b]ooks, newspapers, magazines, and
similar publications ;” (4) “[d]ocuments and records prepared
or originated by [other] agenc[ies];” and (5) “[d]ocuments
and records furnished by foreign governments .. . on the
understanding . .. [that they be] kept in confidence.”
54a
thoroughly responsive to plaintiffs’ request. My dis-
agreement, again, concerns not the substance but the
timing of the judgment in favor of the agency.
As I understand plaintiffs’ position, although they do
raise questions about the CIA’s good faith,*® the real
issue here concerns the scope the agency attributed to the
term “legislative history.” Clearly, whether or not the
CIA acted in good faith, its understanding of “legisla-
tive history” shaped its search for responsive documents.
It is not enough for the CIA simply to state that it
“interpreted the request broadly.” Without discovery of
the precise definition employed by the persons who con-
ducted the search, plaintiffs were in no position to argue
effectively that the search was under-inclusive.* Such
** Plaintiffs point out that on March 10, 1976, six weeks
after their complaint had been filed in district court and near-
ly five months after their original FOIA request had been filed
with the CIA, they received notification that the agency had
conducted a subsequent search and “recently identified” addi-
tional responsive documents that “had not previously been
located.” Brief for Appellants at 4-7; John F. Blake letter,
J.A. at 129. They contend that the CIA’s delay in responding
to their request raises an inference of bad faith that justifies
discovery with respect to the scope of the search. Brief for
Appellants at 20. At least one district court judge would
apparently agree with them. See Ass’n of National Adver-
tisers, Inc. v. FTC, 38 Ad.L.2d 643 (D.D.C. April 1, 1976)
(production of additional documents after six-month delay
“presents a substantial issue of the completeness of the agency
search.” Id. at 645).
*° The court rejects the need for discovery of the definition
of “legislative history” employed by the agency in its search
because this is the “term plaintiffs used, and if any ambiguity
was introduced thereby plaintiffs must reap what they have
sown.” Maj. op. at 31.
I submit that this view is at war with the purposes of the
FOIA. A FOIA request may of necessity be based on im-
perfect information—or none at all—about the particular
Hn
discovery, of course, might have led the parties to agree
on an appropriate search. At a minimum, such discovery
would have enabled plaintiffs to reformulate their re-
quest to eliminate confusion and the possibility of future
lawsuits. Also, such discovery would have revealed
whether the persons conducting the search did in fact
withhold otherwise responsive documents on the basis of
the CIA’s definition of “agency records.” If so, the ques-
tion would arise whether that definition is permitted by
the FOIA.
agency’s methods of classifying and filing information. FOIA’s
legislative history acknowledges the problem, indicating that
a request must supply only “a reasonable description enabling
the Government employee to locate the requested records.”
S.REP.No. 813, 89th Cong., 1st Sess. 8 (1965). See also Sears
v. Gottschalk, 357 F.Supp. 1827 (D.C. Va. 1973). To require
more specificity would be. futile, particularly where, as here,
the requestor cioes not know whether or to what extent re-
sponsive documents exist. Moreover, FOIA’s legislative his-
tory reveals that the requirement that a request identify the
records sought, 5 U.S.C. § 552(a) (3), is “not to be used as
a method of withholding records.” S.REp. No. 813, supra, at 8,
«.ccord, Bristol-Myers Co. v. FTC, 424 F.2d 935, 938 (D.C.
Cir. 1970). See also Attorney General’s Memorandum, supra
note 9, at 24. It follows that ambiguity resulting from imper-
fect information should not be used as a justification for
prohibiting the discovery necessary to make the FOIA work.
In this case I would not cripple plaintiffs’ right to access
to agency records because there is ambiguity in their re-
quest. What they apparently seek is any and all information
in whatever form pertaining to the CIA’s organic statutes.
Yet a request so formulated would provide agency employees
with scarcely any more guidance than one for “legislative his-
tory.” The problem, quite simply, is that plaintiffs do not know
what form such information will take, or where it might be
located in the CIA’s files. I would rely on the discovery
process to eliminate such a problem.
56a
V. ATTORNEY’S FEES
Plaintiffs claim to be entitled to an award of attorney’s
fees on the ground that the CIA produced several docu-
ments only after this litigation was instituted.** The
court rejects this claim in part because plaintiffs have
not shown the required “causal nexus between their liti-
gation and the CIA’s disclosure.” Maj. op. at 32. I do
not disagree with the court’s legal standard. What con-
cerns me, however, is that here again plaintiffs have
had no opportunity to make their case. A showing of an
agency’s subjective reasons for producing documents is
difficult to accomplish at all events. It is virtually im-
possible without discovery.
VI. CONCLUSION
In a recent FOIA case Judge Wilkey remarked that
“(t]he data which plaintiff seeks to have produced .. .
are matters of interest not only to him but to the na-
tion.” Weisberg v. Department of Justice, No. 75-2021
(D.C.Cir., July 7, 1976), slip op. at 6. This observation
applies with particular force to the legislative history
underlying the creation of the CIA. I regret that an
issue of such importance has not been resolved in ac-
cordance with principles of summary judgment.
*7 J.A. at 129. See note 25 supra.
57a
Notice: This opinion is subject to formal revision before publication
in the Federal Reporter or U.S.App.D.C. Reports. Users are requested
to notify the Clerk of any formal errors in order that corrections may be
made before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 76-1800
SusAN D. GOLAND AND PATRICIA B. SKIDMORE,
APPELLANTS
v.
CENTRAL INTELLIGENCE AGENCY, ET AL
On Appellants’ Motion to Vacate and
Petition for Rehearing
(D.C. Civil Action No. 76-0166)
Filed 28 March 1979
James H. Wallace, Jr., Thomas C. Arthur, Mark H.
Lynch, Alan B. Morrison and Larry P. Ellsworth were on
the motion to vacate and on the petition for rehearing.
Leonard Schaitman and John F. Cordes were on the
opposition to appellant’s motion to vacate.
Also Thomas C. Martin, Department of Justice entered
an appearance for respondent.
Bills of costs must be filed within 14 days after entry of judgment. The
court looks with disfavor upon motions to file bills of costs out of time.
58a
Before: BAZELON, TAMM and WILKEY, Circuit Judges.
Opinion Per Curiam
Dissenting opinion filed by Circuit Judge BAZELON.
Per Curiam. This petition for rehearing was occasioned
by an inexcusable lapse on the part of the Central In-
telligence Agency (CIA). While litigating the appeal
whose disposition is here questioned, the CIA discovered
but failed to disclose within any reasonable time hun-
dreds of documents which were arguably responsive to
plaintiff-appellants’ Freedom of Information Act request,
The documents’ existence was not revealed until after we
issued our decision, affirming summary judgment for the
CIA. The failure to make the disclosure plainly called
for naturally casts a cloud over the entire proceeding.
Nevertheless, and without the barest intention of coun-
tenancing the CIA’s untimely disclosure, on analysis of
the issues argued and decided, we decline to disturb our
judgment, save on the question of attorneys’ fees. With
respect to that question, we remand to the District Court
to reconsider its ruling in light of the altered circum-
stances of this case.
I, FActTs
We issued our opinion on 23 May 1978, affirming the
district court’s grant of summary judgment to the CIA.
On 30 May 1978, a week after the issuance of our opin-
ion, the CIA informed the Justice Department that it had
found hundreds of additional documents that might be
responsive to plaintiffs’ FOIA request. The Department
promptly informed plaintiffs and this Court of CIA’s
discovery. On 6 June 1978 plaintiffs filed a petition for
rehearing and suggestions for rehearing en banc.
‘The effect of this timely petition has been to suspend
issuance of our mandate.
’
'
t
59a
On 14 June 1978 the CIA released to plaintiffs’ counsel
30 of the additional documents. In an accompanying
letter the Agency stated that, even though it did not be-
lieve that all of the documents fell within plaintiffs’
FOIA request, it was releasing them anyway to assist
plaintiffs’ scholarly research. The letter explained fur-
ther that:
[m]ost of these documents were discovered late last
fall, and additional documents earlier this year, by
the librarian of the Office of General Counsel. She
discovered all of these documents which were unin-
dexed, in the course of her independent research on
legal projects unrelated to the Goland case. Although
a sampling of the documents last fall revealed their
possible relevance to Goland, it was not until late
May 1978, when a partial list of the documents was
completed by the law librarian, that the extent of
the documents, and the significance of some of the
documents to the Goland FOIA request, were fully ap-
preciated.
The following week, on 23 June 1978, the CIA released
to plaintiffs’ counsel an additional 291 documents. Also
on that date CIA’s associate general counsel, Ernest
Mayerfeld, wrote the Justice Department to explain the
circumstances surrounding the Agency’s discovery and
release of additional documents:
Most of these documents were discovered last fall
by the Office of General Counsel librarian in the
course of extensive research on two projects unre-
lated to the Goland litigation. Many of these docu-
ments were found in a CIA installation outside of
Washington where inactive records are kept, only
after great diligence and persistence by the librarian
in connection with her research. She became aware
of the existence of these documents, which had been
stored in cardboard boxes and had not been organized
in any fashion, as a result of several interviews with
current and former CIA employees conducted in con-
60a
nection with her research projects. These documents
were not indexed and could not have been found
under normal FOIA search procedures.
I can state most emphatically that there was no
intent within the CIA to conceal the fact that these
documents had been found. The librarian, who had
some personal familiarity with the Goland case and
thus recognized that some of the documents which she
had found might have some bearing on the Goland
litigation, immediately (i.e. in late November or
early December 1977), informed the General Counsel,
the Deputy General Counsel and the undersigned.
Because at that time the documents had not been
organized or analyzed, and because it was not im-
mediately apparent which if any were within the
scope of the FOIA request in Goland, the General
Counsel instructed the librarian to begin to organize
these documents and segregate from among them
those documents which qualified for designation as
“legislative history.”
The law librarian proceeded with her assigned
task, but her extensive involvement in other routine
duties prevented her completing this task as ex-
peditiously as might have been desired. It should be
noted that during this period she was engaged in a
major reorganization of the law library which inci-
dentally also entailed a physical move from one loca-
tion to another. Also, although the Table of Organi-
zation of the Office of General Counsel called for an
assistant law librarian, no one was appointed to that
position until March 1978. The law librarian first
completed a partial inventory of the additional docu-
ments on May 19, 1978 and shortly thereafter it was
decided that all the newly-found documents wouid be
released, subject to FOI[A] deletions, and you were
immediately informed.
This, then, apears to be the sequence of events: (1) The
district court granted summary judgment to the CIA on
26 May 1976. (2) Plaintiffs’ filed their notice of appeal
a iil
6la
on 23 July 1976. (3) In November or December 1977—
while this appeal was still pending but more than a year-
and-a-half after the district court’s decision—the CIA dis-
covered additional documents, some of which arguably fell
within the scope of plaintiffs’ FOIA request. (4) Failing
to inform plaintiffs, the Justice Department, or this Court
of the discovery, the CIA undertook a sluggish four-month
examination of the documents. (5) It was not until a
week after we issued our 23 May 1978 decision that CIA
finally revealed its discovery and began releasing the
documents. | |
Contending that this sequence of events completely un-
dermines the basis of our 23 May decision, plaintiffs have
now filed a motion summarily to vacate that decision.’
Plaintiffs’ motion states in pertinent part:
The majority opinion affirmed the district court
decision based on CIA affidavits. It appears that
these affidavits are incorrect... . [T]he CIA has now
produced . . . additional documents “discovered late
last fall and additional documents earlier this year.”
Moreover, [the CIA] concedes that ‘a sampling of
the documents last fall revealed their possible rele-
vance to Goland .. .”
No explanation has been offered by the CIA or the
Justice Department for the CIA’s strategy decision to
stand mute as to the status of the affidavits relied
upon by the Court until after the decision was handed
down on May 23. Indeed, it appears the CIA chose
to withhold this crucial information from the Justice
Department until after such decision was handed
down.
Based on these admissions and concessions .. . it
should now be abundantly clear that discovery is
The motion was filed 16 June 1978—between the CIA’s
release of 30 documents on 14 June 1978 and its release of
291 documents on 23 June 1978.
ET TN I ee ee Tee
62a
appropriate in this case and in any event, attorneys’
fees should be awarded because of the manner in
which the CIA has chosen to conduct itself in this
litigation.
Plaintiffs’ contention seems to be grounded on three
distinct facts or occurrences: first, the fact that additional
responsive documents were found to exist; second, the
fact that CIA delayed informing this Court of the docu-
ments until the Court had already issued its decision ; and
third, the fact that CIA ultimately released the documents
to plaintiffs. Plaintiffs believe that these three facts
warrant vacating the decision of 23 May 1978, at least
in part.
II. Discussion
In our 23 May decision we resolved five separate issues.
We held: (1) that the CIA was not required under the
FOIA to release a Congressional hearing transcript that
remained under the control of Congress; (2) that the
CIA had properly deleted portions of the so-called “Hillen-
koetter Statement” pursuant to Exemption 38 of the
FOIA; (8) that, on the record, the CIA’s search for
documents responsive to plaintiffs’ FOIA request was
adequate and that the district court’s grant of summary
judgment without discovery was within its discretion ;
(4) that the CIA’s definition of “agency records” was
not in controversy; and (5) that plaintiffs’ counsel were
not entitled to attorneys’ fees.
After carefully reviewing plaintiffs’ contentions and
the circumstances surrounding the discovery and belated
disclosure of the documents, we find no occasion to dis-
turb our affirmance as to issues (1) through (4), but we
do vacate that part of our decision affirming the denial
of attorneys’ fees and remand to the district court for
reconsideration of that issue.
63a
A. Thoroughness of Search Issue
We based our determination of the “search” issue, as
did the district court, on three affidavits of Gene F.
Wilson, the CIA’s Information and Privacy Coordinator.
We concluded “that Wilson’s sworn affidavits on their
face are plainly adequate to demonstrate the thorough-
ness of the CIA’s search for responsive documents. The
affidavits give detailed descriptions of the searches un-
dertaken, and a detailed explanation of why further
searches would be unreasonably burdensome.” *
1. Plaintiff's Theory
Plaintiffs’ contend that the discovery of additional
documents indicates that the CIA affidavits in this case,
relied upon by both the district court and this Court,
“are incorrect.” Therefore, they argue that we should
vacate our decision, or at least that portion of the deci-
sion dealing with the “search” issue, because it was
predicated on inaccurate affidavits. We disagree.
As a substantive matter, the mere fact that additional
documents have been discovered does not impugn the
accuracy of the Wilson affidavits. The isswe was not
whether any further documents might conceivably exist
but whether CIA’s search for responsive documents was
adequate. The Wilson affidavits never stated that no
further documents existed; they merely described the
scope of the searches that had been undertaken and stated
that no additional documents could be located absent an
extraordinary effort not required by the FOIA. As we
indicated in our opinion, an agency is required only to
make reasonable efforts to find responsive materials; ‘
it is not required to reorganize its filing system in re-
sponse to each FOIA request. The circumstances sur-
*Slip Opinion (Slip Op.) at 26.
‘Slip Op. at 28.
64a
rounding the discovery of additional documents as de-
scribed in CIA’s letters of 14 and 23 June do not
contradict the statements made in the Wilson affidavits.
According to CIA, the discovery of these documents was
entirely adventitious. They were found by the law
librarian in the course of independent research on proj-
ects unrelated to the Goland litigation. The documents
were not indexed; they were found, only after extraordi-
nary effort, stored in cardboard boxes primarily among
the 84,000 cubic feet of documents at CIA’s retired-
records center outside of Washington. According to CIA,
the documents “could not have been found under normal
FOIA procedures.” Thus, it would appear that the new
facts before us now do not really conflict with the facts
as presented to the district court and reflected in the
record upon which our decision was based, and would
not, as a substantive matter, prompt us to vacate our
affirmance.
Concededly, the discovery of additional documents is
more probative that the search was not thorough than if
no other documents were found to exist. Moreover, the
delay in disclosing the documents at least arguably evi-
dences a lack of vigor, if not candor, in responding to
FOIA requests. However, a disappointed litigant may
not avail herself of every imaginable inference from
newly disclosed facts in order to upset a final judgment.
The occasions when newly discovered evidence or changed
circumstances will warrant setting aside a final judg-
ment are limited procedurally as well as substantively.
2. Applicable Principles of Appellate Review
A final district court judgment may be altered on direct
review only through two procedures.* One, of course, is
* See Carr v. District of Columbia, 548 F.2d 917, 924 (D.C.
Cir. 1976).
MOREA ee >
65a
the present appeal. The other is a motion in district court
for relief from the judgment under Federal Rule 60(b).°
Appellate review is ordinarily unaffected by matters not
contained in the record.’ This we think is the case with
the facts disclosed here, whether characterized as “newly-
discovered evidence” or “changed circumstances.” In
neither event do the disclosures warrant vacating our
judgment.
The fact that additional documents exist, insofar as it
is probative of the thoroughness vel non of the search, is
rather plainly ‘“newly-discovered evidence.” We have
found no case in which the Supreme Court or a court of
appeals has granted a rehearing or vacated its opinion
based on newly-discovered evidence. The reason for this
should be self-evident: an appellate opinion is based on
the record before it, and hence cannot be set aside on the
basis of newly-discovered facts outside the record.’ This
rule is clear in the Supreme Court’s cases, dating from
those in the last century*® to the recent Standard Oil
° Fed. R. Civ. P. 60(b).
* There are a number of settled exceptions to this general
principle of appellate review; as, for example, where there is
an intervening change in a pertinent law, e.g., Gomez V.
Wilson, 477 F.2d 411, 416-17 (D.C. Cir. 1973) ; changed cir-
cumstances which render the controversy moot, e.g., Wirtz
v. Local Union 410, 366 F.2d 488, 442 (2d Cir. 1966);
changed circumstances which alter the appropriateness of
injunctive relief, e.g., Korn v. Franchard Corp., 456 F.2d
1206, 1208 & n.3 (2d Cir. 1972) ; In re Gulf Aerospace Corp.,
449 F.2d 733, 734 (5th Cir. 1971) ; and, in limited cases, facts
which may be judicially noticed, e.g., Landy v. Federal De-
posit Insurance Corp., 486 F.2d 189, 150-51 (3rd Cir. 1973),
cert. denied, 416 U.S. 960 (1974).
® See, e.g., Carr V. District of Columbia, 543 F.2d 917, 921
(D.C. Cir. 1976); AG Pro., Inc. v. Sakraida, 481 F.2d 668,
669 (5th Cir. 1973), rev’d on other grounds, 425 U.S. 273
(1976) ; Davis v. Casey, 103 F.2d 529, 536-37 (D.C. Cir. 1939).
°F.g., Maxwell Land-Grant Case, 122 U.S. 365 (1887);
Roemer Vv. Simon, 91 U.S. 149 (1875).
66a
case *° where the Court refused to recall its mandate and
vacate its opinion on the basis of newly-discovered facts,
stating that its opinion was confined to the record.
An appellate court has no fact-finding function. It
cannot receive new evidence from the parties, determine
where the truth actually lies, and base its decision on
that determination. Fact-finding and the creation of a
record is the function of the district court; therefore, the
consideration of newly-discovered evidence is a matter for
the district court. The proper procedure for dealing with
newly-discovered evidence is for the party to move for
relief from the judgment in the district court under rule
60(b) of the Federal Rules of Civil Procedure.
Insofar as plaintiffs rely on the facts surrounding the
documents’ discovery and release by the CIA, their argu-
ment is more nearly dependent on “changed circum-
stances.” To be sure, there are occasional cases in which
altered circumstances are properly noticed on appeal.”
Invariably in such cases, however, events have altered
the essential nature of the controversy, as, for example,
where there has been an intervening change in the law
or where the controversy has become moot. But in this
case the distinction between new evidence and altered
circumstances is largely a matter of technical usage
rather than substance.” Here the intervening events are
*° Standard Oil Co. of Calif. v. United States, 429 U.S. 17
(1976).
4 See note 7 supra.
The distinction is ordinarily made between these two
grounds of relief for purposes of applying the timing rules
for filing motions under Fed. R. Civ. P. 60(b). To be “newly
discovered,” evidence must have been in existence at the
time of the trial, see C. Wright & A. Miller, FEDERAL PRAC-
TICE AND PROCEDURE § 2859 & n.35 (cases cited) (1973). How-
ever, in this case, the alleged substantive effect of the disclo-
ee
67a
allegedly probative of the same contentions as arose from
the mere existence of the documents (1.e., that the search
was not conducted thoroughly or in good faith). Conse-
quently, for purposes of appellate review of these allega-
tions, we think nothing turns on the arguable distinction
between newly discovered evidence and altered
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