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
II.
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).
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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.
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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]
- 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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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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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. [**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.
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