LEXSEE 79 f3d 1172
CARL
OGLESBY, APPELLANT v. THE UNITED STATES DEPARTMENT OF THE ARMY, ET AL.,
APPELLEES
No.
94-5408
UNITED
STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
316
U.S. App. D.C. 372; 79 F.3d 1172; 1996 U.S. App. LEXIS 5326
February
27, 1996, Argued
March
26, 1996, Decided
PRIOR
HISTORY:
[**1]
Appeal from the United States District Court for the District of
Columbia. (No. 87cv03349).
COUNSEL:
James
H. Lesar argued the cause and filed the briefs for appellant.
Sherri
L. Evans, Assistant United States Attorney, argued the cause for appellees,
with whom Eric H. Holder, Jr., United States Attorney, and R. Craig Lawrence,
Assistant United States Attorney, were on the briefs.
JUDGES:
Before:
WALD, WILLIAMS and TATEL, Circuit Judges. Opinion for the Court filed by
Circuit Judge WALD.
OPINIONBY:
WALD
OPINION:
[*1175]
WALD, Circuit Judge: This case marks yet another stage in Carl Oglesby's
decade-long effort to retrieve World War II vintage documents about a Nazi
general from six government agencies under the Freedom of Information Act, 5
U.S.C. § 552 ("FOIA" or
"Act"). Oglesby, a professional writer and lecturer with a special
interest in the politics of clandestine services, submitted his original FOIA
requests in 1985 to the Department of the Army ("Army"), the Central
Intelligence Agency ("CIA"), the Federal Bureau of Investigation
("FBI"), the National Archives and Records Administration
("NARA"), the National Security Agency ("NSA"), and the
Department of State ("State"). Dissatisfied with the [**2] responses he received from the agencies, he
filed suit in federal court. The district court granted summary judgment for
the defendants, but this court vacated that decision in 1990, with instructions
for Oglesby to exhaust his administrative remedies. Oglesby v. Dep't of Army,
287 U.S. App. D.C. 126, 920 F.2d 57 (D.C. Cir. 1990). Several years later,
having exhausted those remedies without receiving what he considered a
satisfactory response, Oglesby returned to the district court, where the judge
again ruled in favor of the agencies. Oglesby v. U.S. Dep't of Army, Memorandum
Opinion, No. 87-cv-3349 (D.D.C. Nov. 2, 1994) ("Mem. Op."). Once
again, Oglesby has appealed to this court, this time challenging one agency's
refusal to grant him a fee waiver for his search, and several agencies'
allegedly inadequate searches, incomplete Vaughn indices, and impermissible
exemption justifications. Oglesby raises three specific claims: (1) that the
statute specifically authorizing NARA to set fees for document production is
not exempt from FOIA's mandatory fee-waiver provision, and therefore NARA was
obligated to waive or reduce the fees for Oglesby's search; (2) that Army, CIA,
and NSA failed to submit [**3] adequate
Vaughn indices and that Army and CIA also failed adequately to justify the
exemptions on which they based their decisions to withhold certain responsive
documents; and (3) that Army, CIA, FBI, NSA and State failed to demonstrate
that they had conducted adequate searches in response to Oglesby's request.
Because we find that Army, CIA, and NSA have failed adequately to justify their
withholdings, and Army and CIA have failed to justify the adequacy of their
searches, we remand once again for further explanation on these points. With
respect to all claims against the other three defendants, we affirm the district
court.
I.
BACKGROUND
Since
the early 1970s, Oglesby has relentlessly pursued the story of General Reinhard
Gehlen, who served as chief of a Nazi spy ring during World War II and who
allegedly later negotiated an agreement with the United States which allowed
his spy network to continue in existence despite post-war de-nazification
programs. After World War II, his group, then known as the Gehlen Organization,
was reportedly reconstituted as a functioning espionage network under U.S.
command. According to Oglesby, control of the Gehlen Organization shifted
[**4] back to the newly-sovereign West
German Federal Republic as the BND (for Bundesnachrichtendienst, or "the
Federal Intelligence Service") after ten years of U.S. control.
More
than ten years ago, Oglesby submitted FOIA requests to six government agencies,
seeking records pertaining to Gehlen and certain post-WWII Nazi organizations.
Oglesby sent identical requests to Army, CIA, NSA, State, and NARA. The five
requests sought the following information:
(a)
Records of World War Two German General REINHARD GEHLEN and on his relationship
with any United States [*1176] officials during the
period 1944 through 1956.
(b)
Records of the meetings held at Fort Hunt, Virginia, in the summer of 1945
between the aforesaid GEHLEN and American officials including U.S. Army General
GEORGE V. STRONG and Office of Strategic Services officer ALLEN WELSH DULLES.
(c)
Records of the U.S. Army "Operation Rusty," carried out in Europe
between 1945 and 1948.
(d)
Records of post-war Nazi German underground organizations such as ODESSA,
KAMARADENWERK, BRUDERSHAFT, WEREWOLVES and DIE SPINNE.
(e)
Records of OSS "Operation Sunrise" in 1945.
Joint
Appendix ("J.A.") 39. The sixth request, submitted [**5] to the FBI, sought only requests (a) and (b)
above. J.A. 64.
Two
years later, dissatisfied with the responses he had received from the agencies,
Oglesby initiated legal proceedings, first in the district court, and then in
the Court of Appeals. With respect to five of the six defendants, this court
held that Oglesby had not exhausted his administrative remedies. Oglesby, 920
F.2d at 65. However, finding that the precise exhaustion procedure required
under FOIA had not previously been laid out with sufficient clarity, we
permitted Oglesby an opportunity to appeal within each agency and thereafter
refile his suit. With respect to the sixth defendant, State, the court reversed
the district court's decision that the agency had successfully demonstrated the
adequacy of its FOIA search. Id. at 59-60.
On
remand, Oglesby exhausted his administrative remedies and, still dissatisfied,
refiled in the district court. At some point during the proceedings, each of
the agencies submitted at least one affidavit regarding the method and results
of the search it conducted pursuant to Oglesby's request. These affidavits also
describe--with varying degree of detail--the documents the agencies [**6] found but refused to disclose, and the FOIA
exemptions on which the agencies based their refusals to release information.
Once again, the district court determined that the searches were adequate and
the exemptions were justified, and granted summary judgment in favor of the
defendants. Oglesby now appeals that decision.
II.
DISCUSSION
The
Freedom of Information Act requires agencies to comply with requests to make
their records available to the public, unless the requested records fit within
one or more of nine categories of exempt material. 5 U.S.C. § 552(a), (b). If a document contains exempt
information, the agency must still release "any reasonably segregable
portion" after deletion of the nondisclosable portions. Id. § 552(b). Although the Act makes public
disclosure of nonexempt material mandatory, it also expressly permits agencies,
in many circumstances, to charge certain reasonable fees to help defray the
cost of compliance with their FOIA responsibilities. Id. § 552(a)(4)(A). However, in certain instances,
where the dissemination of information will benefit the public, FOIA requires
the responsive agencies to waive or reduce the fees they charge the
requestor. [**7] Id. §
552(a)(4)(A)(iii).
This
court has held that the Act also requires an agency in possession of material
it considers exempt from FOIA to provide the requestor with a description of each
document being withheld, and an explanation of the reason for the agency's
nondisclosure. See, e.g., King v. DOJ, 265 U.S. App. D.C. 62, 830 F.2d 210, 224
("The agency affidavits must ... disclose as much information as possible
without thwarting the exemption's purpose."); Vaughn v. Rosen, 484 F.2d
820 (D.C. Cir. 1973). The description and explanation the agency offers should
reveal as much detail as possible as to the nature of the document, without
actually disclosing information that deserves protection. See, e.g., King, 830
F.2d at 223. This requirement serves the purpose of providing the requestor
with a realistic opportunity to challenge the agency's decision.
In
this case, Oglesby first claims that NARA violated the mandates of FOIA when it
refused to grant him a fee waiver for his
[*1177] search. Second, he
alleges that several of the defendant agencies provided him with inadequate
descriptions of the responsive documents they had located, and that two
agencies further failed to justify their reliance [**8] on certain FOIA exemptions. Finally, Oglesby
argues that the agencies have not sufficiently demonstrated that the searches
they conducted in response to his request were "reasonably calculated to uncover
all relevant documents," as required under FOIA. Truitt v. Dep't of State,
283 U.S. App. D.C. 86, 897 F.2d 540, 542 (D.C. Cir. 1990).
A.
NARA's Fee Statute and FOIA's Fee Waiver
FOIA's
fee provision, 5 U.S.C. § 552(a)(4)(A),
requires agency regulations to provide for the setting of reasonable charges
for document searches, duplication and review. The Act also contains a
provision waiving the agency's fees for searches requested for certain
noncommercial purposes:
Documents
shall be furnished without any charge or at a charge reduced below the
[reasonable standard charges] if disclosure of the information is in the public
interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government and is not
primarily in the commercial interest of the requester.
5
U.S.C. § 552(a)(4)(A)(iii). However, a
few paragraphs later, the Act states:
Nothing
in [this provision] shall supersede fees chargeable under a statute [**9] specifically providing for setting the level
of fees for particular types of records.
5
U.S.C. § 552(a)(4)(A)(vi)
("subsection (vi)").
NARA
claims that subsection (vi) works as an exception not only to FOIA's fee
provisions, but also to the Act's mandatory fee waiver. Since NARA's own
enabling statute specifically provides for the setting of fees, the agency
argues, it is therefore exempt from the FOIA waiver requirement.
The
statute which NARA claims justifies its denial of Oglesby's waiver request
authorizes the Archivist
to
recover the costs for making or authenticating copies or reproductions of
materials transferred to his custody. Such fee shall be fixed ... at a level
which will recover, so far as practicable, all elements of such costs....
44
U.S.C. § 2116(c) ("NARA § 2116").
In
response to NARA's claim of exemption, Oglesby argues that NARA's fee provision
does not meet the requirements for exemption under subsection (vi) of FOIA's
fee provision because NARA § 2116
"neither provides a set formula for the imposition of fees nor mandates
the assessment of fees." Appellant's Brief at 19. Although on its face,
the fee-waiver exception provision [**10]
requires neither a statutorily fixed fee nor a mandatory fee, Oglesby
claims that these requirements are implied by the legislative history of FOIA,
which provided examples of fee-setting laws which should and should not qualify
under the exception. See 132 CONG. REC. H-29618 (daily ed. Oct. 8, 1986).
The
district court rejected Oglesby's argument, and found that NARA's fee provision
was exempt from FOIA's fee-waiver requirement. We find as well that the plain
language of the two statutes confirms the district court's determination that
the NARA statute is indeed "a statute specifically providing for setting
the level of fees for particular types of records," and thus fits
comfortably within the exception carved out in FOIA subsection (vi).
The
legislative history to which Oglesby directs our attention does not convince us
that the district court erred. For example, the fact that Congress did not
intend 31 U.S.C. § 9701, which generally
permits the heads of agencies "to establish the charge for a service or
thing of value provided by the agency," to enjoy exempt status has no
bearing whatsoever on NARA § 2116.
Whereas "a thing of value" clearly does not describe "particular
[**11] types of records," Oglesby
cannot credibly claim that NARA's statute, which refers to "materials
transferred to [the Archivist's] custody," succumbs to the same attack.
Although the "types of records" it describes do indeed encompass the
vast bulk of material the agency deals with, the material is nonetheless
accurately identified. In short, pursuant to the plain language of both
provisions, NARA § 2116 qualifies as the [*1178]
genre of fee-setting provision not to be "superseded" under
FOIA's subsection (vi) exemption.
We
wish, however, to make it clear that we are in no way ruling on a separate
argument which Oglesby failed to raise in a timely fashion. In a motion filed
after oral argument, Oglesby pressed the claim that the FOIA subsection (vi)
exception excuses a qualified agency only from FOIA's fee-setting requirements,
and not from the fee-waiver provision. Oglesby attempts at this point to argue
that the legislative history of the fee-waiver and exception provisions
suggests that Congress intended by subsection (vi) to allow agencies the
freedom to develop their own fee-setting formulae, without also intending to
allow those agencies to refuse categorically to provide [**12] waivers in the public interest. However,
since Oglesby did not raise this argument in a timely manner, we do not address
it on the merits. See, e.g., Charter Oil Co. v. Am. Employers' Ins. Co., 69
F.3d 1160, 1170-71 (D.C. Cir. 1995) (issue waived where not raised until reply
brief); McBride v. Merrell Dowell & Pharmaceuticals, Inc., 255 U.S. App.
D.C. 183, 800 F.2d 1208, 1211 (D.C. Cir. 1986) ("considering an argument
advanced for the first time in a reply brief ... is not only unfair to an
appellee but also entails the risk of an improvident or ill-advised opinion on
the legal issues tendered.") (citations omitted). n1 We refer to this
argument only to emphasize that our narrow ruling today on the argument Oglesby
did successfully make is not intended to bar a future challenge on broader
grounds. In this case, we hold only that NARA §
2116 fits within the description of fee-setting laws set out in FOIA
subsection (vi).
-
- - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1
Here, Oglesby did not even raise this argument in his reply brief; he raised it
for the first time two weeks after oral argument.
-
- - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**13]
B.
Vaughn Indices and Exemptions
In
Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C. Cir. 1973), this
court outlined the requirements an agency must meet in indexing the documents
it has found responsive to a FOIA request. The court explained that it would
"simply no longer accept conclusory and generalized allegations of [FOIA]
exemptions," but rather would require agencies to offer "a relatively
detailed analysis in manageable segments." 484 F.2d at 826. Because FOIA
challenges necessarily involve situations in which one party (the government)
has sole access to the relevant information, and that same party bears the
burden of justifying its disclosure decisions, the courts must require the
government to provide as detailed a description as possible--without, of
course, disclosing the privileged material itself--of the material it refuses
to disclose. Additionally, the agency must determine if any portion of an
exempt document contains nonexempt information, and, if so, must disclose that
nonexempt portion. "In a large document it is vital that the agency
specify in detail which portions of the document are disclosable and which are
allegedly exempt." 484 F.2d at 827. If an affidavit [**14] submitted by an agency contains sufficient
detail to forge the "logical connection between the information [withheld]
and the claimed exemption," Goldberg v. U.S. Dep't of State, 260 U.S. App.
D.C. 205, 818 F.2d 71, 78 (D.C. Cir. 1987), then the court will accord that
affidavit substantial weight and consider the agency's "unique insights
into what adverse effects might occur as a result of public disclosure."
Id.
In
this case, Oglesby challenges the adequacy of the document descriptions offered
in the affidavits submitted by Army, CIA, and NSA, which he claims are too
sparse to allow an assessment of the various exemptions on which the agencies
based their decisions to withhold responsive documents. In an overlapping
claim, Oglesby raises specific challenges to Army's and CIA's reliance on FOIA
exemptions 1 and 3, even with respect to individual documents described in
adequate detail in the affidavits. He criticizes Army for not specifically
stating that the supposedly exempt documents had been classified in accordance
with the appropriate procedures, and he faults CIA for failing to address
specifically the age of the documents and for depending on an allegedly
unreliable affiant.
[*1179]
FOIA exemption [**15] 1, 5 U.S.C.
§ 552(b)(1), protects from disclosure
matters that are: (A) specifically authorized under criteria established by an
Executive Order to be kept secret in the interest of the national defense or
foreign policy; and (B) are in fact properly classified pursuant to that order.
Id. The Army and the CIA both withheld information under this exemption.
Exemption
3, 5 U.S.C. § 552(b)(3), protects from
disclosure matters that are specifically exempted from disclosure by statute.
The CIA withheld information under this exemption, claiming that two statutes
specifically operated to exempt certain responsive information; 50 U.S.C.
§ 403(d)(3), which requires the CIA to
protect intelligence sources and methods from unauthorized disclosure; and 50
U.S.C. § 403g, which provides that the
CIA shall be exempt from any other law requiring the publication or disclosure
of the organization, functions, names, official titles, salaries, or numbers of
people employed by the CIA.
Because
resolution of the issues raised by Oglesby's appeal depends on a fact-intensive
analysis of each of the agencies' searches and declarations, we outline the
relevant facts regarding each agency separately. [**16]
1.
Army
In
response to Oglesby's initial request in 1985, Army eventually informed Oglesby
that it had located responsive documents concerning three of the topics
contained in his request: Operation Rusty, Odessa, and Gehlen. In May, 1986,
Army informed Oglesby by letter of its decision to withhold significant
portions of the responsive documents. The unreleased information consisted of:
eleven pages (and various redactions) in the ninety-nine pages of records
pertaining to Odessa; all of the 483 pages of records it had located pertaining
to Operation Rusty; and nine of 264 pages of records regarding Gehlen.
Oglesby
sued for release of the undisclosed documents, which prompted Army to submit
the affidavit of Robert Walsh, describing the responsive documents and attempting
to justify Army's withholdings. The Walsh declaration revealed that the Army
initially released seventy pages of Odessa records in their entirety and
eighteen in redacted form. Another eleven pages, the Army withheld under
exemption 1 (classified information). Aff. of Robert J. Walsh 3 (Apr. 6, 1988)
("Walsh Declaration"); J.A.189. Additionally, Army denied access to
an entire 483-page Operation Rusty file,
[**17] also on the basis of FOIA
exemption 1. Id. at 7; J.A. 193.
The
Walsh declaration described each of nineteen separate documents Army had
identified as responsive to Oglesby's request, and detailed the justifications
for any unreleased portions of those documents. In general, the affidavit
contained sufficient detail to allow a reviewing court to assess the
applicability of the claimed exemptions to the undisclosed information. For
example, the Army declared with respect to two documents:
c.
Document 3 is a cover letter originated by the 971th [sic] Counterintelligence
Corps dated 19 May 1947 consisting of one page with one enclosure consisting of
three pages. The subject of the cover letter is Organization Coburg, and is
currently classified CONFIDENTIAL. Portions of paragraphs 2 and 3 of this cover
letter were redacted to exempt classified information relating to intelligence
methods and sources and foreign classified matters. The remaining paragraph and
all three pages of the enclosure were regraded unclassified on 25 May 1986 and
released to plaintiff.
...
f.
Document 6 is a one-page letter originated by the 971th [sic]
Counterintelligence [**18] Corps, dated
25 November 1946, with subject Organization ODESSA. This document was regraded
unclassified on 25 May 1983 and redacted to exempt only the identity of a
confidential source.
Id.
at 4-5; J.A. 190-91.
With
respect to the 483-page document withheld in full, however, the affidavit
offers significantly less detail:
o.
Document 15 is a complete intelligence operation consisting of 483 pages,
entitled Operation Rusty. By letter dated 20 May 1986, plaintiff was advised
that this document was properly and currently classified CONFIDENTIAL and was
withheld in its [*1180] entirety. The operation concerned gathering
positive and counterintelligence information concerning the activities and
organizations of an Intelligence Service and activities of various dissident
German organizations. The operation involved close coordination and cooperation
with foreign and other US intelligence organizations. Release of this
information would reveal intelligence activities, sources and methods as well
as classified foreign government activities.
Id.
at 7; J.A. 193.
On
remand, Army supplemented the Walsh declaration with a 1992 affidavit by
William Grayson. Decl. of William [**19]
E. Grayson (Aug. 3, 1992) ("Grayson Declaration"); J.A. 177.
For each item of information that still had not been turned over to Oglesby,
Grayson explained what had been withheld and why. For example, with respect to
one document, he wrote:
a.
Pages 13-17
The
information on these pages is from a document dated September 10, 1947 and
describes activities of ODESSA and related organizations. We have withheld only
the name and other identifying data--aliases, address, date and place of birth,
occupation, and physical description--of the individual (apparently a German
citizen) who was the confidential source of this information, and we relied
upon [FOIA exemption 7] to support our withholding. Although the passage of
time and/or the death of confidential sources do not extinguish the protections
of [exemption 7], we note that this document indicates that the source was born
during the 1920's and therefore would be likely to still be living.
Grayson
Decl. at 3-4; J.A. 179-80. With respect to the Operation Rusty file, however,
the Grayson declaration offered no new information. Grayson provided a similar
description to that which appeared in the Walsh declaration, and [**20] concluded that "release of the
information would reveal intelligence activities, sources, and methods and also
classified foreign government activities" and was therefore not required
under exemption 1. Id. at 8; J.A. 184. Grayson also declared that,
"considering the nature of the document (which is, in effect, a collection
of documents), no one portion could be considered reasonably segregable."
Id. at 9; J.A. 185.
At
the time of the Grayson declaration, nine of 264 pages regarding Gehlen had
still not been turned over to Oglesby. Grayson explained these withholdings in
paragraph 8 of the affidavit:
The
remaining 9 pages contain information pertaining to intelligence activities,
sources, and methods and also contain classified foreign government
information. We cannot describe the material in more detail without revealing
classified information. As with the Operation Rusty file, should the Court
require further information, we will submit a classified declaration or the
full text documents for the Court's in camera, ex parte inspection.
Id.
at 9-10; J.A. 185-86.
Oglesby
claims that Army's Vaughn index is inadequate for two reasons: first, because
[**21] the Operation Rusty file is not
indexed in detail; and second, because the affidavit fails to declare
specifically that no portion of the withheld material pertaining to Gehlen was
further segregable into exempt and nonexempt portions. Oglesby also claims that
Army failed adequately to justify the withholdings it took under FOIA exemption
1, because the affidavits did not specifically assert that the
"classified" information had been classified in accordance with the
procedure laid out in the appropriate Executive Order.
Oglesby's
first two complaints merit some attention. The Army provided the district court
with relatively little information about a 483-page document it determined was
wholly exempt from FOIA disclosure. Although the Army avers that the file is
not segregable, the Grayson declaration provides no details justifying that
conclusion. In fact, the affidavit describes the file as "in effect, a
collection of documents." Id. at 9; J.A. 185. Since Vaughn and its progeny
require that an agency itemize each document and explain the connection between
the information withheld and the exemption claimed, the Army should be required
on remand to provide any [*1181] disclosable [**22] information regarding each document in the
Operation Rusty "compilation." The Army has not adequately explained
why it cannot provide general information (for example: length, date, author
and brief description of each document) which would present Oglesby with a more
realistic opportunity to challenge Army's invocation of exemptions.
Similarly,
Army has failed to offer any useful description of the nine undisclosed pages
of Gehlen material. We cannot so easily accept the district court's
determination that "the fact that such a tiny percentage of the [264 pages
of] documents was withheld, coupled with the Army's evident awareness of the
requirement that it disclose reasonably segregable nonexempt portions, leads
the Court to the conclusion that the Amy did indeed make such a determination
with respect to the Gehlen files." Mem. Op. at 4; J.A. 469. Although it is
quite possible that the Army, which released the vast majority of the Gehlen
material, was indeed aware of its duties under FOIA to disclose all
nonsegregable information, Army has not provided this court with an adequate
explanation on which we can rely for that finding. We therefore remand for a
description of the specific [**23]
documents (or segments) withheld and an explanation of the harm that
might result from release of the undisclosed information.
Oglesby's
third claim against this defendant--that Army failed to justify its reliance on
exemption 1 because it did not specifically assert that the
"classified" information had been labeled in accordance with the
procedure laid out in the appropriate Executive Order--elicits less concern.
The Walsh declaration asserts that the material withheld pursuant to exemption
1 "meets the criteria set forth in [the Executive Order] which provides
that information concerning intelligence activities, sources, or methods shall
be considered for classification protection." Walsh Declaration at 9, 10;
J.A. 195, 196. Walsh also stated that he had personally reviewed each of the
documents and determined that they were "currently and properly classified,
SECRET and CONFIDENTIAL." Id. The district court held--and we agree--that
these claims that the information was "classified" encompass both the
procedural and substantive aspects of classification.
2.
CIA
In
response to Oglesby's initial 1985 FOIA request, CIA released twenty pages of
material it had previously [**24]
released to someone else pursuant to a 1983 FOIA request for information
on Gehlen and Operation Sunrise. Letter from John H. Wright to Carl Oglesby
(Sept. 10, 1985); J.A. 57. The agency then informed Oglesby that it would not
conduct a new search on Gehlen or any of the other listed topics unless and
until Oglesby wrote back and agreed to pay search fees. Rather than responding
to the letter, Oglesby filed suit. In our earlier opinion, we encouraged the
Army to reconsider a decision it had made to deny Oglesby a fee waiver,
Oglesby, 920 F.2d at 66 n.11, and on remand, both Army and CIA informed Oglesby
that his waiver would be granted. CIA then conducted a search, during which it discovered
thirty-five responsive documents. The agency disclosed twenty-nine of these
documents, and withheld six of them pursuant to various FOIA exemptions.
The
CIA coordinated its Vaughn declaration with the FBI's, since the FBI had
forwarded thirteen responsive documents for CIA review. The CIA submitted the
declaration of Lee Carle, dated June 1, 1988, and the FBI submitted an
affidavit by Angus Llewellyn, dated May 26, 1988. The Carle declaration
described in impressive detail each document [**25] and portion thereof which CIA had located but
refused to release. For example, Carle offered the following justification for
withholding a one-page memo:
This
one-page CIA memorandum to Director ... from Deputy Director ... is classified
SECRET. This document is denied in its entirety pursuant to FOIA exemptions
(b)(1) and (b)(3) as no meaningful segregation can be made for release to
Plaintiff. Disclosure of any portion of this information would identify by name
a foreign intelligence source of the CIA and specific methods by which CIA
collected information on this source. The information [*1182]
withheld relates to possible travels and activities of the source during
a precise time period. The names of the source's traveling companions are also
included in the deleted information. Release of the information itself would
immediately reveal specific details relating to activities and travel plans of
these foreign intelligence sources, thereby allowing them to be easily
identified.
Declaration
of Lee E. Carle 19-20 (June 1, 1988) ("Carle Declaration").
After
our first remand, CIA supplemented the Carle Declaration with a 1993 affidavit
by Katherine Stricker. Declaration of [**26]
Katherine M. Stricker (Jan. 15, 1993) ("Stricker
Declaration"); J.A. 248. In addition to the documents discussed in the
Carle Declaration, Stricker addressed two new documents (documents 5 and 6 in
her document description index, id. at 4; J.A. 251), which she described in
significant detail. For example, Stricker referred to "document 6" as
follows:
This
78-page document is a chronological accounting of Operation Sunrise. This
document is released in sanitized form. The redacted information is withheld
pursuant to FOIA exemptions (b)(1) and (b)(3). The information withheld on pages
11, 34, and 35 of this document pertains to a liaison relationship with a
foreign government. (See paragraph 17, the Stricker Declaration [explaining
that "liaison relationships" are initiated and continued only on the
basis of secrecy] ). I have determined that release of this information could
reasonably be expected to cause damage to the national security. Therefore, the
full-text version of this document is currently and properly classified at the
SECRET level.
Id.
at 17; J.A. 264.
Although
both Carle's and Stricker's declarations offer sufficient details to allow a
court [**27] to assess the propriety of
most of the exemptions claimed by the CIA, Stricker's declaration also contains
a reference to "additional responsive documents" which the agency
nowhere describes or explains. Id. at 4; J.A. 251. Apparently the agency
intended to submit a classified index in camera, but for some reason failed to
do so. n2 With respect to these documents, which CIA has never described for
Oglesby, the agency has clearly failed to meet its FOIA obligation to justify
each and every exemption taken.
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n2
Before oral argument, the defendants moved to dismiss Oglesby's appeal,
claiming that the CIA's failure to submit the classified index for in camera
review rendered the district court's disposition of this case non-final.
Defendants allege that the judge could not have offered a final disposition
against every defendant since she had not even seen all of the evidence on
which she was to rule.
Although
the defendants are certainly correct to note that a judge cannot properly find
that evidence which she has never seen and which the agency has never described
satisfies FOIA's exemption requirements, the impropriety of the ruling does not
change the fact that the district court held that "the CIA's exemption 1
claims are justified." J.A. 471.
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[**28]
Despite
CIA's failure either to describe the documents or to submit the classified
index in camera, the district court expressly found both that the CIA's Vaughn
index was adequate, Mem. Op. at 5; J.A. 470, and that the CIA had described its
withheld information and its justifications for the withholdings, "with
reasonable specificity, demonstrating a logical connection between the
information and the claimed exemption." Id. at 7; J.A. 472. At oral
argument, counsel for the defendants conceded the need for a remand on this
point. n3
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n3
Oglesby correctly notes that even if the CIA had submitted the index as
planned, the agency had not created a sufficient public record to justify an in
camera review because it had not made public as much information as
possible. Lykins v. DOJ, 233 U.S. App.
D.C. 349, 725 F.2d 1455, 1463-65 (D.C. Cir. 1984). In Lykins, the court found
the government's Vaughn index "clearly insufficient" to support an in
camera review where the index provided only the date, the type of document, and
a conclusory declaration that the material would be potentially disruptive. The
court warned that "a trial court should not use in camera affidavits
unless necessary and, if such affidavits are used, it should be certain to make
the public record as complete as possible." 725 F.2d at 1465. The CIA has
offered far less information here than the agency in Lykins; the public record
contains no information except a vague reference to "additional responsive
documents."
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[**29]
Oglesby
challenges the adequacy of CIA's Vaughn index, which we can quickly [*1183]
declare insufficient with respect to the undescribed
"additional" documents. However, Oglesby also claims that CIA has
failed to justify its withholding, under FOIA exemptions 1 and 3, of material
it did describe in the affidavits. First, he argues that CIA's failure to
explain expressly why the passage of time has not diminished the security
concerns with respect to the undisclosed records renders the affidavits
inadequate to justify the exemptions. Second, Oglesby charges that the district
court should not have relied on the Stricker declaration because Ms. Stricker's
credibility had been tarnished by her involvement in a separate proceeding, in
which she submitted an affidavit stating that disclosure of certain
information, which it was later learned had been released thirty years before
without incident, would cause damage to the national security if released.
Appellant's Brief at 36.
To
back his claim that the passage of time has reduced the risk of this
information leading to breaches in security, Oglesby points to the CIA's
Historical Review Program ("HRP"), pursuant to which the agency
systematically [**30] reviews for
declassification all records more than thirty years old. See HR 70-14 a.(1); J.A. 333. Although we
would not go so far as the district court and deny that CIA's review program
"has any relevance" to Oglesby's claim, Mem. Op. at 8 n.4; J.A. 473,
neither do we believe that the passage of time alone is enough to discredit an
otherwise detailed and persuasive affidavit. Oglesby has not demonstrated that
an agency's national security concerns automatically disappear with the passage
of time, and therefore has not rebutted the affidavits stating that the
material had been reviewed at the time of the request, and had been determined
to pose a current threat to national security if released.
Nevertheless,
we hesitate to describe the existence of the review program as
"irrelevant," because if Oglesby could show that withheld information
is substantially similar to information the government has declassified because
of its age, he might raise a successful challenge to the government's reliance
on exemption 1. In this case, however, he has presented no such evidence; he
has merely made the naked assertion that the passage of time renders the
national security claims questionable.
[**31] As long as an agency
declares through its affidavits that the responsive material has been reviewed
to assure the continuing accuracy of its original classification, and that a
determination has been made that the withheld information still poses a
security risk if released, the mere passage of time is not a per se bar to
reliance on exemption 1. n4
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n4
To back his argument that the agency must specifically address the passage of
time, Oglesby cites several cases which we find inapposite. The only case from
this court, King v. U.S. Dep't of Justice, 265 U.S. App. D.C. 62, 830 F.2d 210
(D.C. Cir. 1987), involved a request for documents which had been classified
under an executive order which specifically directed the agency to consider
"the passage of time" and which had been reviewed by the agency only
for procedural compliance with the executive order. 830 F.2d at 226.
In
addition to King, Oglesby points to dicta in two nonbinding cases from the
Northern District of California which we find uncompelling in this context. In
Powell v. U.S. Dep't of Justice, the court found that the government had
"manifested a bad faith disregard for plaintiff's rights under FOIA,"
584 F. Supp. 1508 at 1513, and supplied only conclusory affidavits claiming
that the release of certain information could cause damage to national
security, id. at 1517. Likewise, in Dunaway v. Webster, 519 F. Supp. 1059, 1069
(N.D. Cal. 1981), the government had submitted only "conclusory
statements" to justify continuing classification under a different
executive order which the court determined embodied a "clear policy"
of declassification for older documents. Id.
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[**32]
With
respect to Oglesby's second challenge--to the credibility of CIA's affiant--we
note that the record contains no suggestion that the error Stricker allegedly
made in the unrelated case involved any duplicity or intentional
misrepresentation. Without any allegation of bad faith, we are unwilling to
assume that an agency employee who withholds information that ultimately turns
out to be substantially similar to information that has already been
released--in short, an employee who makes a mistake--is forever barred from
serving as a reliable affiant in the future. Accordingly, we reject Oglesby's
claim that the district court should have rejected the Stricker declaration on
that basis.
[*1184]
3. NSA
NSA
originally responded to Oglesby's request by informing him that his fee waiver
had been denied and that the search would likely cost him $ 900. After Oglesby
filed suit for the first time, NSA reversed its original position and granted
him a waiver. In 1990, the agency made its "final response" to the
request, releasing four documents pertaining to "werewolves" and
several others regarding Gehlen. In addition, the agency withheld several
documents pursuant to exemptions 1 and 3.
[**33]
Oglesby
appealed the agency's decision to withhold part or all of five separate reports
and two letters. The NSA refused to disclose the documents in unredacted form
because "release of certain portions of these documents would reveal specific
information regarding communications intelligence and cryptologic activities,
thereby jeopardizing intelligence sources and methods." Declaration of
Michael A. Smith 4 (May 4, 1992) ("Smith Declaration"); J.A. 167.
Through the Smith declaration, NSA claimed that some of the withheld
information ("such as titles of reference documents used in the
preparation of one of the reports at issue, codewords and distribution caveats,
and matters of foreign relations") met the criteria for exemption 1, and
the rest ("including employee names") was also protected by exemption
3. Id. at 5; J.A. 168.
In
subsequent affidavits, NSA supplemented the Smith declaration with statements
by Boyd Wooton, J.A. 453 ("Wooton Declaration"), and Robert Killen,
J.A. 456 ("Killen Declaration"). Wooton described the usual search
procedure for NSA, and Killen provided details regarding the actual procedure
the agency implemented in conducting Oglesby's search. Killen [**34] ran a new search of the agency's files,
entering the terms: Gehlen, Strong, Dulles, Hunt, Rusty, Odessa, Kamaradenwerk,
Bruderschaft, Werewolf, Werewolves, Spinne, and Sunrise. Killen Declaration at
2; J.A. 457.
In
June, 1994, Smith issued a supplemental declaration in which he explained that
Killen's search had produced eight new responsive documents. Supplemental
Declaration of Michael A. Smith (June 28, 1994) ("Smith Supp."); J.A.
459. Three of these documents were released in full and five were withheld in
full. The supplemental affidavit offered no details regarding the five
documents, but conclusively stated that they were all currently and properly
classified either TOP SECRET or SECRET because "the disclosure of all or
any portion of their contents could reasonably be expected to cause
exceptionally grave damage and serious damage, respectively, to the national
security." Smith Supp. at 3; J.A. 461. Smith also averred that these five
documents satisfied the requirements for exemption 3 as well, since they
contained classified information concerning communications intelligence
activities. Id. at 4; J.A. 462. The affidavit concluded with the sweeping
declaration that "it [**35] is not
possible to describe further the withheld information in an unclassified
declaration because any additional description would itself divulge classified
information." Id.
Oglesby
claims that NSA's Vaughn index inadequately describes the responsive material,
and we are inclined to agree with him. With respect to documents located since
this case's last visit to the Court of Appeals, NSA's affidavits contain only
sweeping and conclusory assertions that the agency withheld the documents
because they contained material which could reasonably be expected to cause
damage to national security. The affidavits offer no functional description of
the documents; NSA has failed to disclose the types of documents, dates,
authors, number of pages, or any other identifying information for the records
it has withheld. Comparison of these affidavits with the Army and CIA
declarations highlight the shortcomings of the NSA statements.
Thus
we agree with Oglesby that NSA has clearly failed to provide an adequate Vaughn
index. On remand, the district court should order NSA to submit an index
describing the withheld documents to the greatest extent possible without
disclosing information [**36] that must
be protected.
C.
Adequacy of the Searches
In
addition to attacking the adequacy of the Vaughn indices and exemption
justifications [*1185] offered by Army, CIA and NSA, Oglesby
challenges the adequacy of the searches conducted by those agencies, as well as
by FBI and State.
1.
Army.
In
a letter to Oglesby dated March 31, 1986, Army explained that it had searched
its automated Defense Central Index of Investigations ("DCII") and
Investigative Records Repository ("IRR") for records responsive to
his FOIA request. Letter from Thomas Conley to Carl Oglesby (Mar. 31, 1986);
J.A. 41. According to the letter, DCII "is a computerized index to
intelligence investigative records maintained by the Department of Defense"
and the IRR "is the Army's official storage facility for all intelligence
investigative records." Id. at 1. Oglesby claims that Army has failed to
aver that these two indices are the only places pertinent records might be
stored. Appellant's Brief at 44 ("The record also does not clarify whether
INSCOM maintains other indices of its records, computerized or manual.
Discovery is needed to answer these questions.").
To
back his claim on this issue,
[**37] Oglesby cites to a book
about Reinhard Gehlen in which the author asserts that Army Intelligence
provided her with "well over a thousand documents" about Gehlen in
response to her FOIA requests. MARY ELLEN REESE, GENERAL REINHARD GEHLEN: THE
CIA CONNECTION xiii (1990); J.A. 342. Although information in the record fails
to reveal the precise nature of the FOIA request the book author submitted, and
therefore her experience cannot prove that Army's search was inadequate, her
claim raises enough of a doubt to preclude summary judgment in the absence of
an affidavit describing Army's filing system and decision to search only the
DCII and IRR indices. Although Oglesby argues that discovery is needed to
answer his questions regarding the adequacy of Army's search, a relatively
detailed affidavit addressing the issue could suffice.
2.
CIA
With
respect to the CIA, the district court ruled that the agency had conducted an
adequate search, and that CIA's failure to describe its subsequent search which
located additional records was "irrelevant." Mem. Op. at 10; J.A.
475. We disagree that the court had sufficient information on which to base its
summary judgment determination. Particularly [**38] since the record does not disclose how many
additional documents were produced in the subsequent search, or offer any description
of the nature of these documents, the court could not properly conclude that
the original search (which failed to locate any of these possibly numerous and
important documents) was "reasonably calculated to uncover all relevant
documents." Truitt v. Dep't of State, 283 U.S. App. D.C. 86, 897 F.2d 540,
542 (D.C. Cir. 1990); see also Founding Church of Scientology v. NSA, 197 U.S.
App. D.C. 305, 610 F.2d 824, 837 (D.C. Cir. 1979) ("If, in the face of
well-defined requests and positive indications of overlooked materials, an
agency can so easily avoid adversary scrutiny of its search techniques, [FOIA]
will inevitably become nugatory.").
3.
FBI
The
FBI submitted a detailed affidavit describing each document it found in
response to Oglesby's original request, as well as each paragraph or
subparagraph deleted from each document. See Declaration of Angus Llewellyn
(May 26, 1988) ("Llewellyn Declaration"). Because Oglesby does not
attack the adequacy of the FBI's index, we will not detail the documents withheld
or the explanations offered to justify the exemptions.
Oglesby
challenges [**39] only the adequacy of
the search conducted by FBI. In response to his initial request, the FBI
released a document which suggested to Oglesby that certain Gehlen files might
be found in a "section tickler" and that this tickler might contain
records responsive to his request. He wrote to the FBI and asked that they
search under additional terms and that they search the section tickler. See
Declaration of Karlton D. Bolthouse 3 (Sept. 24, 1992); J.A. 229. On August 8,
1991, the FBI responded that it had conducted the additional requested search
and had located no additional documents. The letter also informed Oglesby that
the reference to a "section tickler" did [*1186]
not indicate that any other responsive documents existed. Id. at 4; J.A.
230.
The
FBI's response to Oglesby described the Bureau's search in sufficient detail to
satisfy summary judgment standards. The FBI assured Oglesby that, "the
reference to a "section tickler' was not an indication that other
responsive records existed," id., and Oglesby has advanced no reason to
doubt that allegation. Oglesby seems to believe that common sense dictates the
conclusion that a "tickler" necessarily contains documents. We do not
[**40] find it so clear that a
"tickler" must be a repository for documents, and we will not
second-guess FBI's affidavit on this point.
4.
State
As
with the FBI, Oglesby challenges the district court's ruling in favor of State
only with respect to the adequacy of the department's search.
In
a 1992 declaration submitted by Frank Machak, State described its filing system
and the search the department conducted in response to Oglesby's request.
Declaration of Frank Machak (Mar. 30, 1992) ("Machak Declaration").
According to the affidavit, State organizes its files under three categories:
automated document system (files from 1973-present); central foreign policy
files (1954-1973); and lot files (described by Machak as "paper files
retired by foreign service posts and by Department offices, covering the time
period circa 1954-present that are maintained in sealed boxes, known as lots,
and arranged according to subject matter and time periods"). Id. at 6;
J.A. 155.
All
State records covering the period prior to 1954 had been accessioned to NARA,
and therefore State conducted a search only with respect to the first item on
Oglesby's request (records pertaining to Gehlen and his relationship
[**41] with U.S. officials). A research
specialist determined that any documents responsive to Oglesby's request which
had been retained by State would be contained in the central foreign policy
files. State apparently did not search the lot files, because "the
description of records requested ... was not specific enough to allow for
[it]." Id. at 9; J.A. 158. Lot files are organized only by nine broad
subject categories (administration, business affairs, consular affairs,
economic affairs, military and defense, operations, political affairs, social
affairs, and technology & science), and not by individuals' names. Id.
Oglesby
raises two objections to State's conduct of its search: first, he alleges that
the Department's failure to search the lot files rendered the search
inadequate; and second, he claims that the court cannot rule on the adequacy of
the search based on Machak's declaration because Machak was allegedly involved
in an unlawful attempt to expedite an unrelated FOIA request in 1992.
Appellant's Brief at 47. The district court rejected these claims, and we affirm
that decision.
State
adequately addressed the first of Oglesby's concerns when it explained that the
lot [**42] files are organized by nine
broad subject categories and not by individuals' names. J.A. 158. Since State's
search only reached the first item on Oglesby's list (because the other items
had been accessioned to NARA), the department sought only information
pertaining to Gehlen and his relationship with U.S. officials. If, as the
affidavit alleges, the lot files cannot be searched for an individual's name,
we find that it is reasonable that State would require more specific
information in order to search these files.
Oglesby's
second challenge also lacks merit. The district court found "no reason to
doubt Machak's credibility in this case," and we find no reason to
challenge that conclusion. Particularly in light of the fact that the judge in
the case which Oglesby claims reveals Machak's untrustworthiness ultimately
determined that Machak's declaration in that case had been "well grounded
in fact," Nation Magazine v. Dep't of State, 92-cv-2302, slip opinion at
29 (D.D.C. Aug. 18, 1995), we find Oglesby's unsupported allegations attacking
Machak's credibility insufficient to convince us to reverse the district
court's decision.
5.
NSA
Oglesby
claims that the Smith declaration [**43]
"contains no information whatsoever
[*1187] concerning the nature of
the search it conducted." Appellant's Brief at 48. What Oglesby's brief
fails to mention is that on remand, NSA submitted additional affidavits that do
detail the nature of the agency's search. The Killen declaration explains that
Killen personally ran all of the main terms in Oglesby's request through NARA's
Archival Information Retrieval System ("AIRS"), "the only system
of records ... that could reasonably be expected to contain any archival
records responsive to plaintiff's FOIA request." Killen Declaration at 1;
J.A. 456. Because Oglesby has put forward no reason to doubt the sufficiency of
this search, we affirm the district court's holding that NSA had demonstrated
the adequacy of its search.
III.
CONCLUSION
In
sum, we affirm the district court in part and reverse in part, holding:
(1)
that the district court correctly rejected Oglesby's claim that NARA's
fee-setting statute was not a "statute specifically providing for setting
the level of fees for particular types of records," and therefore did not
fall within 5 U.S.C. §
552(a)(4)(A)(vi)'s exemption from FOIA's fee requirements;
(2)
that Army, CIA [**44] and NSA all
submitted inadequate Vaughn indices;
(3)
that the district court correctly held that FBI, State, and NSA had
demonstrated that they had conducted adequate searches; and
(4)
that Army and CIA have not provided sufficient information to justify the
district court's finding that their searches were reasonably calculated to
uncover all responsive documents.
Thus,
we affirm the district court's decision with respect to NARA, FBI, and State,
but reverse and remand for further proceedings involving Army, CIA and NSA.
So
ordered.
