During the early years of the administration of the Freedom of
Information Act, courts consistently deferred to agency judgments on
national security issues in litigation cases involving Exemption 1.
Since 1979, however, courts have undertaken increasingly strict scrutiny
of agency classification determinations--and in some cases, they have
issued disclosure orders (often, but not always, overturned on appeal)
regarding information that was classified under an applicable executive
order and withheld by an agency on Exemption 1 grounds:
Tzaneff v. FBI, No. 79-0333 (D.D.C. July 31, 1979). In the first case of
its kind, a district court judge undertook in camera inspection of two
classified documents, held an in camera hearing at which the court
questioned the agency affiants "to obtain a clearer understanding of the
basis for [the Exemption 1] deletions," and then ordered the disclosure
of particular sentences within paragraphs that were "portion marked." No
appeal was taken.
Holy Spirit Ass'n v. CIA, No. 79-0151 (D.D.C. July 27, 1979), aff'd in
pertinent part, 636 F.2d 838 (D.C. Cir. 1980), cert. granted, vacated in
part & remanded, 455 U.S. 997 (1982). The district court ruled that the
CIA's affidavits were conclusory and rejected its use of Exemption 1 as
"overly broad." The D.C. Circuit affirmed on entirely procedural
grounds. That decision was later vacated by the Supreme Court. See FOIA
Update, March 1982, at 5.
Lamont v. Department of Justice, 475 F. Supp. 761 (S.D.N.Y. 1979),
subsequent decision, No. 76-3092 (S.D.N.Y. Dec. 20, 1979), rev'd in
pertinent part, No. 81-6078 (2d Cir. Sept. 25, 1981). The district court
ordered the FBI to disclose portions of two classified documents. After
the FBI determined that the information contained in one of them could be
declassified and disclosed, it appealed regarding the second one and the
Second Cir-cuit reversed.
Carlisle Tire & Rubber Co. v. United States Customs Serv., No. 78-2001
(D.D.C. Nov. 21, 1979). The district court ordered disclosure of
portions of four documents that "were published in the Federal Register"
and one other document which was "inadvertently made public." No appeal
was taken by the defendant agency.
Weberman v. NSA, 490 F. Supp. 9 (S.D.N.Y.), rev'd & remanded, 646 F.2d
563 (2d Cir. 1980) (table cite), summary judgment granted, 2 GDS 82,067
(S.D.N.Y. 1981), aff'd, 668 F.2d 676 (2d Cir. 1982). The request
concerned a subject so sensitive that NSA could not confirm or deny the
existence of any document without harming the national security. The
district court ordered NSA to confirm or deny and did not permit the
agency to prove its case in camera. The Second Circuit reversed and, on
remand, the district court awarded the agency judgment on the merits
after reviewing a classi-fied affidavit in camera.
Pratt v. Webster, 508 F. Supp. 751 (D.D.C. 1981), subsequent decision, 2
GDS 81,298 (D.D.C. 1981). The district court ordered the FBI to
disclose classified information in several documents. On review, the FBI
determined that the information could be disclosed without harm to
national security. Accordingly, no appeal was taken on this issue.
Jaffe v. CIA, 516 F. Supp. 576 (D.D.C. 1981), subsequent decision, 573 F.
Supp. 377 (D.D.C. 1983). The district court rejected the FBI's
justification for the withholding of certain information under Exemption
1. In fact, the court actually included some of the classified
information directly in its opinion. It then allowed the FBI to
supplement its submissions supporting its classification determinations
and subsequently granted summary judgment in the FBI's favor on its
Exemption 1 claims.
Taylor v. Department of the Army, 2 GDS 82,008 (D.D.C. 1981), rev'd,
684 F.2d 99 (D.C. Cir. 1982). The district court determined that the
Army could not properly classify the compilation of its unclassified
"measured resource area ratings" for all major combat units of the Army,
and it ordered almost immediate disclosure. The D.C. Circuit stayed the
disclosure order and ultimately upheld the Army's classification
determination. See FOIA Update, Sept. 1982, at 4.
Dunaway v. Webster, 519 F. Supp. 1059 (N.D. Cal. 1981). The district
court rejected the FBI's classification determinations, but on its own
applied Exemption 7(C) to the information. Although this decision was an
adverse Exemption 1 precedent, no appeal was taken because the
information was allowed to be withheld on other grounds.
Peterzell v. Department of State, No. 82-2853 (D.D.C. Apr. 3, 1984),
reconsideration granted in part (D.D.C. Oct. 16, 1984), vacated &
remanded, No. 84-5805 (D.C. Cir. Apr. 2, 1985) (unpublished memorandum),
on remand, No. 82-2853 (D.D.C. Sept. 20, 1985). The district court ruled
that public statements by senior executive and legislative branch
officials constituted sufficient official acknowledgment of certain
"covert action" to warrant dis-closure of classified documents. After
the D.C. Circuit ordered the district court to consider the State
Department's classified affidavit in camera, the district court reversed
its conclusion. See FOIA Update, Fall 1984, at 5.
Abbotts v. NRC, No. 77-0624 (D.D.C. May 1, 1984), rev'd & remanded, 766
F.2d 604 (D.C. Cir. 1985). The district court concluded that the
existence of information in the public domain that was "similar" to the
classified information at issue warranted disclosure of that classified
information, but the D.C. Circuit reversed that judgment. See FOIA
Update, Summer 1985, at 4.
Fitzgibbon v. CIA, 578 F. Supp. 704 (D.D.C. 1983), motion for
reconsideration granted in part, No. 79-0956 (D.D.C. July 5, 1984),
remanded, No. 84-5632 (D.C. Cir. Mar. 13, 1986), summary judgment
granted, No. 79-0956 (D.D.C. May 19, 1989), aff'd in part, rev'd in part
remanded, 911 F.2d 755 (D.C. Cir. 1990). The district court ordered the
CIA to disclose some of the classified information at issue in the case
after reviewing the CIA's in camera affidavits. On appeal, the D.C.
Circuit remanded the case in light of the Supreme Court's decision in CIA
v. Sims, 471 U.S. 159 (1985) (protecting intelligence sources under
Exemption 3). On remand, the district court found most of the
information to be protected under Sims, but it affirmed its disclosure
order as to some of the information that the CIA had sought to protect
under Exemptions 1 and 3. The D.C. Circuit subsequently reversed the
part of the district court's order that still required disclosure, but it
rested its decision upon Exemption 3 grounds only. See FOIA Update,
Spring/Summer 1990, at 22.
Powell v. United States Dep't of Justice, No. 82-0326 (N.D. Cal. Mar. 27,
1985), stay denied (N.D. Cal. June 14, 1985), stay denied, No. 85-1918
(9th Cir. July 18, 1985), stay denied, No. A-84 (U.S. July 31, 1985)
(Rehnquist, Circuit Justice) (undocketed order). The district court
ordered the disclosure of classified records that were belatedly
determined by it to be within the scope of the request and therefore were
not addressed in the agency's classification affidavits. The agency was
unable to obtain appel-late review of the merits of this adverse decision
because the records were disclosed after stays pending appeal were
denied, successively, by the district court, by the Ninth Circuit, and
even by the Supreme Court. The district court also ordered the dis-
closure of certain other segments of classified information, but the case
subsequently was settled with the agency permitted to withhold this
Donovan v. FBI, 625 F. Supp. 808 (S.D.N.Y.), aff'd in pertinent part,
806 F.2d 55 (2d Cir. 1986). The Second Circuit upheld a district court
disclosure order when it found that the affidavit submitted by the FBI
inadequately described the withheld documents and was "unconvincing" as
to any potential harm that could result from disclosure. The case
subsequently was settled, with the plaintiff withdrawing his request for
the classified records at issue in exchange for the government's
agreement not to seek to vacate the Second Circuit's opinion in the
Siminoski v. FBI, No. 83-6499 (C.D. Cal. Nov. 3, 1988) (magistrate's
recommendation), rejected in pertinent part (C.D. Cal. Jan. 16, 1990).
A magistrate recommended disclosure after in camera review, "wholly
unconvinc[ed]" that documents over 40 years old were properly classified.
The district court rejected that recommendation, holding that the passage
of time did not affect their classification status. Lawyers Comm.
for Human Rights v. INS, 721 F. Supp. 552 (S.D.N.Y. 1989), motion to
reargue denied, No. 87-1115 (S.D.N.Y. May 23, 1990), subsequent decision
(S.D.N.Y. June 7, 1990). The district court ordered the State Department
to disclose documents "already released to the public," as well as
portions of other documents that discussed "off-the-record" exchanges
with the press. The agency's motion to reargue this issue was denied.
Up-on the submission of additional affidavits by the agency and an in
camera review of the remaining documents, the court upheld the agency's
other Exemption 1 withholdings.
Bowers v. United States Dep't of Justice, No. 86-336 (W.D.N.C. Mar. 9,
1990), rev'd, 930 F.2d 350 (4th Cir.), cert. denied, 502 U.S. 911 (1991).
The district court ordered the disclosure of classified information in
FBI counterintelligence files after giving little if any weight to the
FBI's statements of national security harm. On appeal, the Fourth
Circuit reversed and permitted the information to be withheld. See FOIA
Update, Spring 1991, at 7.
Rosenfeld v. United States Dep't of Justice, 761 F. Supp. 1440 (N.D. Cal.
1991), aff'd, 57 F.3d 803 (9th Cir. 1995). (See discussion of this case
in "Significant '95 Decisions" file.)
As agencies implement the provisions of new Executive Order No. 12,958,
and consider possible challenges to their classification determinations
under Exemption 1 in future FOIA litigation cases, they should bear in
mind the history and lessons of these Exemption FOIA decisions.
From FOIA UPDATE Spring/Summer 1995 Vol. XIV, Nol. 1
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