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On February 9, 1978, District Judge Pratt issued a memorandum order granting the Department's motion to dismiss. The liability of the Attorney General in his official capacity was treated as incorporated into that of the Department of Justice. The memorandum order stated that the documents were variously protected by FOIA exemption 7(c), which exempts from mandatory disclosure investigatory records compiled for law enforcement purposes to the extent that the production of such records would constitute an unwarranted invasion of privacy; by FOIA exemption 7(d), which exempts from mandatory disclosure investigatory records compiled for law enforcement purposes to the extent the production of such records would disclose the identity of a confidential source; and by FOIA exemption 6, which protects from disclosure personnel and medical files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. Since the District Court held all of the documents in question to be protected by FOIA exemption 6, 7(c) or 7(d), the applicability of exemption 5, which protects interagency or intraagency communications which would not be available by law to a party other than an agency in litigation with the agency, was not reached in the opinion.

On March 3, 1978, Mr. Schwartz filed a notice of appeal from the memorandum order of February 9, 1978.

On April 5, 1979 the Court of Appeals issued its decision. The judgment of the District Court was affirmed on the basis of Judge Pratt's Memorandum Order of February 9, 1978. No opinion accompanied the Circuit Court's decision.

Status. The case has been closed.

The District Court's memorandum opinion of August 30, 1977 is printed in the “Decisions” section of the report Court Proceedings and Actions of Vital Interest to the Congress, current to December 31, 1978.

The District Court's memorandum order of December 12, 1977 is printed in the "Decisions" section of the report Court Proceedings and Actions of Vital Interest to the Congress, current to December 31, 1978. .

The District Court's memorandum order of February 9, 1978 is printed in the “Decisions” section of the report Court Proceedings and Actions of Vital Interest to the Congress, current to December 31, 1978. Goland v. Central Intelligence Agency

No. 76-1800 (D.C. Cir.)

Plaintiffs, Susan D. Goland and Patricia B. Skidmore, filed suit on January 26, 1976, pursuant to the Freedom of Information Act, as amended, 5 U.S.C. § 552 (hereinafter “FOIA"). Named as defendants in the suit were the Central Intelligence Agency (hereinafter "CIA”) and the Information Coordinator of the CIA.

This action was the result of a request of documents which was first made by Sara Holtz. On May 2, 1975, Sara Holtz, who is not a party to the suit, filed an FOIA request with the CIA seeking access to "all records concerning the legislative history" of the National Security Act of 1947, 50 U.S.C. § 403 (1970), the CIA Act of 1949, 50 U.S.C. $$ 403a-403j (1970), and two bills introduced into Congress in 1948 providing for the administration of the Agency. The CIA responded to Ms. Holtz’ request by advising her that the documents she sought were Congressional materials which would be available in the Library of Congress or the Government Printing Office. Ms. Holtz responded with a second letter, stating her belief that hearings had been held on the bills she cited for which no transcripts were available in the Library of Congress, and requesting access to records of these hearings and to “any House, Senate or Conference Reports, besides those available in public libraries, that more fully explain the basis for the Committees' action on these bills.”

The CIA responded to this second letter by informing Ms. Holtz that a search of its records had revealed that it possessed one document relating to the legislative history of the CIA's organic statutes which was not publicly available, namely, a stenographic transcript of hearings held before the House Committee on Expenditures in the Executive Departments on June 27, 1947 (hereinafter "Hearing Transcript”). The CIA stated, however, that the Hearing Transcript had been classified “Secret” by Congress and could be declassified only by that body; it suggested that Ms. Holtz request declassification and release of the document from the House of Representatives.

On October 20, 1975, plaintiffs, Ms. Goland and Ms. Skidmore notified the CIA that they, like Ms. Holtz, were investigating the authority, organization and administration of the Agency, and requested the documents sought by Ms. Holtz' letters. Treating the CIA's failure to respond within ten days as a denial of their request, plaintiffs in a letter to CIA Freedom of Information Coordinator Robert S. Young on November 20, 1975 appealed that denial. On November 26, 1975 the CIA offered to send plaintiffs copies of five previously published hearings and reports, however with respect to the Hearing Transcript, the CIA reiterated its position that the FOIA did not apply to the transcript because it was a “legislative document under the control of the House of Representatives” which was “classified 'Secret'”.

On December 16, 1975, the plaintiffs wrote the CIA asserting that the Agency's letter of November 26, failed to make clear whether the Transcript and the five published documents accounted for all the materials they had requested and to expand the scope of their request to include any "materials which may have been the basis for testimony at hearings” or “materials used by or submitted by the CIA or other Executive Branch sources which are included in (unpublished] reports” on the cited bills.

The CIA's failure to respond within 20 working days resulted in the filing of this action in the U.S. District Court for the District of Columbia.

On March 10, 1976, the CIA notified plaintiffs' counsel that it had identified two additional documents. The first, which was released to plaintiffs in full, was entitled "Statement of Lt. General Hoyt S. Vandenberg, Director of Central Intelligence," delivered before the Senate Armed Services Committee on April 29, 1947. The second, which was released to plaintiffs with certain portions deleted, was entitled “Statement of the Director of Central Intelligence (Hillenkoetter) delivered before the House Armed Services Committee on April 8, 1948” (hereinafter "Hillenkoetter Statement"). The Agency claimed that the deleted material was exempt from disclosure under FOIA, by statutory mandate because it contained information regarding intelligence methodology and function.

On May 26, 1976, the District Court granted the CIA's motion for summary judgment. Goland v. CIA C.A. No. 76-166 (D.D.C. May 26, 1976). The court found that the Hearing Transcript was a Congressional document released to the CIA for limited purposes as a reference document only. The court stated:

Since this document is a record of a hearing held in Execu-
tive Session and remains within the control of Congress,
this Court finds that the document is exempt from disclo-
sure under the Freedom of Information Act. [Goland v.
C.I.A., C.A. No. 76-166, Findings of Fact at 2 (D.D.C. May

26, 1976).] The court also found that the deleted portions of the Hillenkoetter Statement were properly withheld under FOIA Exemption 1, 5 U.S.C. $ 552(b)(1) which provides, in pertinent part, that:

(b) This section does not apply to matters that are

(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of

national defense or foreign policy * * The court also held that no further discovery was justified since the CIA had “made a full search in good faith.

On July 23, 1976, plaintiffs filed a notice of appeal. On May 23, 1978, the appellate court rendered its decision, affirming the judgment of the District Court.

The appellate court rejected plaintiffs' argument that, "since the CIA is an 'agency', its possession of the Hearing Transcript, without more renders that document ‘an agency record subject to disclosure absent specific exemption.” In rejecting the plaintiffs argument, the court stated:

Congress has undoubted authority to keep its records secret, authority rooted in the Constitution,36 long standing practice, 37 and current Congressional rules.38 Yet Congress exercises oversight authority over the various federal agencies, and thus has an undoubted interest in exchanging documents with those agencies to facilitate their proper functioning in accordance with Congress' originating intent.39 If plaintiffs' argument were accepted, Congress would be forced either to surrender its constitutional prerogative of maintaining secrecy, or to suffer an impairment of its oversight role.

*

36 U.S. Const. Art. I, Sec. 5: “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy .

37 See Nixon v. Sirica, 487 F.2d 700, 772-73 (D.C. Cir. 1973) (Wildey, J., dissenting).

38 E.g., H.R. Rule XI(2)(k)(7), reprinted in H.R. Doc. No. 416, 93d Cong., 2d Sess. 427 (1975); “No evidence or testimony taken in executive session may be released or used in public session without the consent of the committee.”

39 See Letter from Deputy Att'y Gen. Harold R. Tyler, Jr. to Hon. Bella S. Abzug, 19 Feb. 1976, quoted in J.A. 60 (Justice Dept. declined to release confidential House report lest "communications and consultations be

tween coequal branches” of government be stifled).
[Slip Opinion at 10-11.)
The court further stated:

Whether a Congressionally generated document has
become an agency record, rather, depends on whether
under all the facts of the case the document has passed
from the control of Congress and become property subject
to the free disposition of the agency with which the docu-

ment resides. [Slip Opinion at 11-12.] The court concluded that given the facts, the Hearing Transcript remains under the control of and continues to be the property of the House of Representatives. The fact that the Transcript was denominated “Secret” plainly evidences a Congressional intent to maintain Congressional control over the document's confidentiality. The fact that the CIA retains the Transcript solely for internal reference purposes indicates, the court declared, that the document is in no meaningful sense the property of the CIA; the Agency is not free to dispose of the Transcript as it wills, but holds the document as a "trustee" for Congress.

In agreeing with the District Court that the deleted portions of the Hillenkoetter Statement were exempt from disclosure to plaintiffs, the appellate court however, based its decision on Exemption 3,5 U.S.C. $ 552(b)(3). The court stated:

As originally enacted, FOIA provided that the Act's disclo-
sure requirements do not apply to matters that are
(3) specifically exempted from disclosure by statute." 51
Two statutes are relevant to an Exemption 3 claim by the
CIA. A proviso to 50 U.S.C. $ 403(d)(3) states that, "the
Director of Central Intelligence shall be responsible for
protecting intelligence sources and methods from unau-
thorized disclosure.” 52 Section 403g of the same title pro-
vides that, "in order further to implement" this proviso,
“the Agency shall be exempted from * ** the provisions

* law which require the publication or disclo-
sure of the organization, function, names, official titles,
salaries, or number of personnel employed by the
Agency.53

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51 5 U.S.C. § 552(b)(3) (1970).

52 National Security Act of 1947, ch. 343, tit. I, § 102, 61 Stat. 497 (presently codified at 50 U.S.C. $ 403(d)(3) (1970)).

53 CIA Act of 1949, ch. 227, 7, 63 Stat. 211 (presently codified at 50 U.S.C. $ 403(g) (1970)). [Slip Opinion at 16-17.]

Having decided that Sections 403(d)(3) and 403g remained unchanged by a 1976 Congressional amendment to Exemption 3, as statutes intended to qualify under Exemption 3, the court then determined that on the basis of affidavits, without the need for discovery or in camera inspection, the deleted portions of the Hillenkoetter Statement were properly withheld.

In affirming the District Court's award of summary judgment in favor of the CIA in its finding that "the CIA ha[d] made a full search in good faith and that no further discovery (was) justified,” the court based its decision on affidavits, executed by Gene F. Wilson, the Agency's Information and Privacy Coordinator. The court stated:

In order to prevail on an FOIA motion for summary judgment, “the defending agency must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements.” 15 In determining whether an agency has met this burden of proof, the trial judge may rely on affidavits. Congress has instructed courts to accord “substantial weight to agency affidavits in national security cases,” 76 and these affidavits are equally trustworthy when they aver that identified documents are exempt. The agency's affidavit, naturally, must be "relatively detailed” and nonconclusory ?? and must be submitted in good faith. But if these requirements are met, the district judge has discretion to forgo discovery and award summary judgment on the basis of affidavits.78

77

*

75 National Cable Television Ass'n. Inc. v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973).

76 S. Rep. No. 93–1200, 93d Cong., 2d Sess. 12 (1974) (Conference Report); 120 Cong. Rec. 36,870 (1974) (remarks of Sen. Muskie). See EPA v. Mink, 410 U.S. 73, 93 (1973).

Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).

78 See Nolen v. Rumsfeld, 535 F.2d 890, 891-92 (5th Cir. 1976) (granting summary judgment upon agency's representations “in candor and in good faith” that all responsive documents were made available to plaintiff); Association of Nat'l. Advertisers, Inc. v. FTC, 38 Ad.L.2d 643, 644 (D.D.C. April 1, 1976) (where record indicates that agency search was “reasonably thorough,” discovery may be limited by court; to justfy discovery where FTC “has already stated under oath that the search was Commissionwide and complete, [p]laintiff must demonstrate some substantial discrepancy between the defendant's actions and words *'); Exxon Corp. v. FTC, 384 F. Supp. 755, 759-60 (D.D.C. 1974), remanded, 527 F.2d 1386 (D.C. Cir. 1976), dismissed, No. 73–1928 (D.D.C. Feb. 28, 1977) (limit

ing discovery where affidavits demonstrated adequacy of search). [Slip Opinion at 23-24.] In dissent Judge Bazelon declared:

In my view, the record in this case establishes as a matter of law that the hearing transcript is an "agency record," and the court is empowered to order it withheld only if it qualifies for nondisclosure under FOIA exemptions one or three. First of all, the CIA claims to have had exclusive possession of this document for more than thirty years. More importantly, the CIA acknowledges that it employs this information in interpreting its organic legislationi.e., in making decisions with respect to policy and operations. The Act does not define "agency records.” But the House and Senate reports reveal that the fundamental purpose of the FOIA was to open administrative policy and

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