|v.||)||Civil Action No. 98-1319 PLF|
|CENTRAL INTELLIGENCE AGENCY,||)|
FOR THE DISTRICT OF COLUMBIA
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF PLAINTIFF'S OPPOSITION
TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
On March , 1973 President Nixon declared the controversial Vietnam war at an end and announced all our troops, including those missing in action and prisoners of war, were coming home. Dozens of families, however, knew that their loved ones did not return and the explanations given to them by the U.S. government were far from complete or satisfactory. As the years went by, rumors of prison camps still existing and sightings of Americans in Laos and other South East Asia countries sprang up and families engaged private investigators and, in some cases rescuers, to track down their missing family members. More and more reports began to surface not only that prisoners of war and others still missing were left behind but that the U.S. government may have known in 1973 (or at least had information available to it) that men were being left behind. Public outrage increased with each such report and finally pressure was brought to bear on Congress. In 1991 the Senate appointed a Select Committee on POW/MIA Affairs to investigate and "ensure that our nation meets its obligation to the missing" and their families. Final Report of the Senate Select Committee on POW/MIA Affairs, S.Rept. No. 103-1 (103rd Cong., 1st Sess., January 13, 1993)(hereinafter "Senate Report") at p. 2. The Committee conducted hundreds of interviews and took sworn depositions of military and civilian personnel who served in Vietnam, who worked for intelligence gathering agencies or were in policy-making positions, as well as outsiders who might have had relevant information. The Committee studied thousands of pages of records from government agencies. The Committee reached the conclusion that men were definitely left behind and that the US government knew about these abandoned men and had continued over the years to gather information about them possibly to try to secure their release. The Committee, however, was unconvinced that any of these men remain alive today. Senate Report at p. 7.
During its work, the Committee encountered a great deal of frustration and stonewalling by government agencies over the release of records on POW/MIAs. Senate Report at p. 243. This prompted the Senate to enact Senate Resolution 324 demanding that the President issue an executive order commanding all federal agencies to "declassify and publicly release without compromising U.S. national security all documents, files and other materials pertaining to POWs and MIAs." 138 Cong. Rec. No. 98, S. 9664 (102d Cong., 2d Session, 1992). See also, Senate Report at pp. 239-40. President Bush duly issued the Executive Order (No. 12812) on July 22, 1992 and in 1993 President Clinton reiterated that order in Presidential Decision Directive NSC 8 (hereinafter "PDD NSC 8) and demanded all agencies complete their review by Veterans' Day, 1993. Procedures were established for the Department of Defense through the Defense Prisoner of War/Missing Personnel Office ("DPMO") to coordinate assembling the documents, and the Library of Congress (National Archives and Records Service) was designated the final repository of all publicly releasable materials.
Procedural Background of these Requests
Plaintiff is an independent researcher who became interested in information on POW/MIAs during the course of his graduate school studies. He now conducts research not only for articles he writes on the subject but also to assist families of individual POW/MIAs who remain unaccounted for from the Vietnam war. He currently works with 19 such families as well as with the National Alliance of Families. See Affidavit of Roger Hall, appended as Exhibit 1 to this memorandum (hereinafter "Hall Affid.") at ¶ 2.
In January, 1994 Plaintiff made the first Freedom of Information Act ("FOIA") request to the Central Intelligence Agency that is the basis of Count I in this litigation. His initial request was a broad, all encompassing one asking for any and all information on POW/MIAs still remaining in South East Asia whether held in prisoner status or not. He further clarified his request by stating that it included information about POW/MIAs taken from, transported through, and residing in various countries, including Laos, Cambodia, Vietnam, China, North Korea, the Soviet Union, and Cuba. Rather than conduct a search in response to his request, the CIA pointed Plaintiff to lists of documents previously released in response to other requests or to the collection of records at the Library of Congress. Plaintiff appealed the agency's decision on February 9, 1995, stating that the agency's failure to conduct a search was a refusal to release documents in violation of the FOIA. Defendant denied this appeal on March 13, 1995.
On April 23, 1998, Plaintiff, through his counsel, made four additional, separate requests to the CIA for specific categories of records, all of which had been covered by Plaintiff's initial request. The first sought information on broadcast and newspaper intercepts from 1968 through 1973 which relate to POW/MIAs other than those in the published Foreign Broadcast Information Service (FBIS) Far East volume. (This request is the basis of Count II in this litigation). The second sought information from January 1, 1971 through December 31, 1975 on the status of any POW/MIAs in Laos (Count III in this litigation). The third asked for records of the Senate Select Committee on POW/MIA Affairs withdrawn from the collection at the National Archives and returned to the CIA (Count IV in this litigation). The fourth sought all documents relating to nineteen named individuals who are POW/MIAs from the Vietnam era (Count V in this litigation). When the agency failed to respond to these four requests within the statutorily-provided twenty- business-day period, Plaintiff brought suit on May 28, 1998.
The CIA ultimately acknowledged receipt of each of the requests. In each of these letters the agency pointed out that all responsive documents would be either on the lists previously provided to Mr. Hall or on the agency's website. By letter dated August 14, 1998, Defendant sent Plaintiff 148 pages of previously released documents on five of the nineteen named individuals covered by Plaintiff's fifth request.(1) The agency contends it has no records on the remaining thirteen named individuals. See copy of August 14, 1998 letter attached as Exhibit 2 to this memorandum. The documents released in response to Count V contain numerous deletions which the agency has failed to explain. At some point after this case was filed, Defendant discovered and reviewed classified documents gathered by the agency in response to E.O. 12812 and PDD NSC 8 that, because of their classification status, were not included on previously-released agency lists. Defendant identified only eleven of these documents as responsive to Plaintiff's request and is withholding them in whole or part. See McNair Declaration at ¶¶ 35 and 62.
Defendant has now moved for summary judgment as to all counts in this case. With respect to Counts I, II, III and V, the agency contends that it has conducted an adequate search and all responsive documents have either been released to Plaintiff personally or offered to him through the various lists of publicly-available documents, except for those eleven documents for which Defendant cites an exemption to justify their withholding. With respect to Count II, the agency contends that no responsive documents exist. Finally, with respect to the documents from the Senate Select Committee on POW/MIA Affairs which were sent by the National Archives to the agency for declassification (Count IV), Defendant contends these records are Senate records and not accessible under the FOIA.
Plaintiff vigorously contests Defendant's motion for summary judgment on the grounds that there are many facts still in dispute with respect to Defendant's interpretation of Plaintiff's request and the adequacy of its search for responsive documents. Facts surrounding the creation and transfer of the documents from the Senate Select Committee on POW/MIA Affairs Plaintiff seeks demonstrate that these records are within the possession and control of the CIA and, thus, are agency records subject to FOIA. Plaintiff also opposes summary judgment as to documents released in part because with respect to some records Defendant has failed to offer any explanation to justify the deletions and for other records (the eleven documents described in the McNair Declaration), there is evidence that some of this information may have already been publicly disclosed, and thus, Defendant's claim of exemptions may not be supportable by law. The remainder of this memorandum will detail Plaintiff's grounds for opposing Defendant's motion for summary judgment.
Summary judgment is not appropriate when there are material facts in dispute or where the agency has failed to meet the burden of proof placed upon it by the FOIA to justify the withholding of records. See Washington Post Co. v. Department of State, 840 F.2d 26, 29(D.C. Cir. 1988); Afshar v. Department of State, 702 F.2d 1125, 1143 (D.C. Cir. 1983). The Court's review in FOIA cases must be de novo and agency affidavits and declarations are to be carefully scrutinized to ensure they are detailed, non-conclusory and substantively sufficient. 5 U.S.C. § 552(a)(4)(B) and Miller v. Casey, 730 F.2d 773, 776 and n.17(D.C. Cir. 1984); and Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 861 (D.C. Cir. 1980).
The FOIA imposes upon federal agencies a duty to conduct a "reasonable" search for records responsive to a request. In reviewing the adequacy of a particular search, the court must "expressly conclude that the search was adequate or that it satisfied the reasonableness standard." Krikorian v. Department of State, 984 F.2d 461 (D.C. Cir. 1993). While normally an agency is permitted to establish the adequacy of its search by affidavits, when those affidavits are conclusory or the record raises serious doubts as to the completeness of the agency's search, or there is evidence of agency bad faith, summary judgment for the defendant agency on the basis of affidavits alone is inappropriate. Perry v. Block, 684 F.2d 121 (D.C. Cir. 1982) In such cases, plaintiffs are entitled to take discovery to determine the nature and scope of the search undertaken by the agency. See, e.g., Neugent v, Department of the Interior, 640 F.2d 386 (D.C. Cir. 1981); Founding Church of Scientology of Washington v. NSA, 610 F.2d 824 (D.C. Cir. 1979); Weisberg v. Department of Justice, 542 F.2d 308 (D.C. Cir. 1976). Where the agency's affidavits regarding the adequacy of the search conducted are challenged, the facts concerning the adequacy of that search must be construed in the light most favorable to the requester/plaintiff. Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985), citing Weisberg v. Webster, 749 F.2d 864 (D.C. Cir. 1984). If there is a "substantial doubt" as to the adequacy of the search that was conducted, summary judgment cannot be granted to the agency. Krikorian v. Department of State, supra. 984 F.2d at 468, citing, Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990).
In this case, Defendant has submitted the declaration of William H. McNair to support the adequacy of its search. In that declaration Mr. McNair concedes that the agency did not actually conduct a search in response to Plaintiff's requests, but rather relied exclusively upon a search done by the agency at some point prior to November, 1993 in response to E.O. 12812 and PDD NSC 8. McNair Declaration at ¶ 16. While the Executive Order and directive mandated comprehensive searches for all records on the subject of POW/MIAs, the adequacy of the agency's search must be reviewed in accordance with what Plaintiff actually requested.
A. Defendant May Not Have Properly Interpreted Plaintiff's Request.
There is evidence that Defendant may not have properly interpreted Plaintiff's request and this misinterpretation may have affected both the determination of what documents were responsive as well as the scope of Defendant's search. Plaintiff states in his Affidavit, at ¶ 15, that his initial FOIA letter was intended as a very broad request for any and all information pertaining to any individuals considered prisoners of war or missing in action from the Vietnam era who are or have been believed to be remaining in Southeast Asia or other countries now or in the past whether in a prisoner status or not. Plaintiff provided additional information to aid the agency's search after being told that all responsive documents had been previously reviewed and released in response to presidential orders. That additional information was intended to provide additional search aids, not to narrow, in any way, the scope of his request. Id. Defendant, however, characterizes plaintiff's attempts as a "narrowing" of his request. This limited interpretation may well have led to an incomplete search.
Plaintiff's initial request specified by name a number of countries where Plaintiff believed POW/MIAs might have been taken at some point over the years. He provided these names to ensure that the agency's search encompassed information about POW/MIAs in all possible locations. The named countries included North and South Vietnam, Laos, Cambodia, North Korea, Cuba, China and the Soviet Union. The McNair Declaration describes various key words that were used by the agency's Directorate of Operations to search for responsive documents. McNair Decl. at ¶ 26. Only Vietnam, Laos, and Cambodia appear on the list in the McNair Declaration. Therefore, without further discovery there is no way to know if the agency's search for documents on POW/MIAs encompassed information relating to POW/MIAs in countries specified in the request but not mentioned as a search term.
Plaintiff, in his affidavit which is submitted pursuant to Fed.R.Civ.Proc. 56(f), provides examples of a number of types of records that he can document exist but have not been acknowledged or released in response to his requests. These include aerial reconnaissance photography, Hall Affid. at ¶¶ 25-29, briefing boards and notes, id. at ¶ 35, reports of coordinated efforts with other agencies, id. at ¶ 22, and minutes or other notes of meetings of various policy groups on which the CIA served, id. at 32. The absence of any documents of these kinds suggest that, not only may the agency have conducted an inadequate search, but it also may have given Plaintiff's request such a narrow interpretation that these documents were not considered responsive. Without discovery on this issue, there is no factual basis to determine if Defendant's processing of Plaintiff's requests was proper.
B. The Description of the Search Conducted by Defendant is Incomplete.
In order for an agency declaration to be afforded deference, it must be complete and non-conclusory. Allen v. Central Intelligence Agency, 636 F.2d 1287, 1291 (D.C. Cir. 1980)("The affidavits must show, with reasonable specificity," and they "will not suffice if the agency's claims are conclusory . . . or if they are too vague or sweeping."). See also Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982)("supporting affidavits must be relatively detailed and nonconclusory and must be submitted in good faith."[citations omitted]). The McNair Declaration, particularly with respect to the description of the search conducted for responsive documents, is neither relatively detailed nor non-conclusory. His declaration is incomplete in many respects. He fails to provide such simple information as when the searches were actually conducted. He states, at ¶ 16, that the search was conducted pursuant to E.O. 12812 but he does not say when the search was actually ordered by DCI Robert M. Gates or when search criteria were developed and presented to the agency components.(2) In fact, he makes no representation about any effort to standardize or coordinate criteria for conducting the search across the various components of the agency. While he states that the search is on-going, he does not explain how the on-going search (presumably for newly created documents) is being handled.
While the McNair Declaration indicates that five components of the CIA were searched, he never certifies that these are the only components of the agency or even those most likely to have responsive records.(3) The McNair Declaration then goes on to describe the conduct of the searches in only two of those five components. McNair Declaration at ¶¶ 26-30. What was done in the other three components is unknown. He describes certain key words used to conduct the search for the Directorate of Operations. Id. at ¶ 26. The omission of similar details with respect to the searches of other components leaves it unclear whether those same terms may have been used in other directorates or whether other search keys were employed. In the description of the search conducted at the Directorate of Intelligence, McNair describes the types of files that were searched, e,g, "subject files, chrono files, reference materials, analyst files and listings of archived records." McNair Decl. at ¶ 30. By contrast, in his description of the search of Directorate of Operations files, he talks only of "soft and hard files", "chronological subject files" and "numerous other specialized files." McNair Decl. at ¶ 26. Despite Mr. McNair's characterization of the searches as "thorough" and "exhaustive," the descriptions he provides of the searches are not detailed or complete enough for this Court to make a determination of the reasonableness of this search de novo.
C. Plaintiff Has Evidence Disputing the "Reasonableness" of Defendant's Search.
Plaintiff has amassed a trove of documents relating to POW/MIAS from other sources, including CIA documents released by other entities, which call into serious question the adequacy of the search done by the CIA both in response to this case and in response to E.O. 12812 and PDD NSC 8. See Hall Affidavit and Attachments A - A-21 attached thereto.
In Plaintiff's affidavit submitted in support of this memorandum, Plaintiff points out a number of relevant terms that the agency could have used to discover documents relating to POW/MIAs. He points out various terminology directly referencing POW/MIAs that were well known and commonly used within and without the government over the years, see ¶ 21, the names of various POW/MIA-related operations conducted by the USG at various times with CIA involvement, see ¶ 22, the names of various Far East Asia sites where prison camps were known to have been located, see ¶ 22, and various policy-making and information-gathering groups relating to POW/MIAs that the CIA participated in, see ¶¶ 23 and 32. Finally, there is evidence
of regular reportings, including daily briefings to the President, that were conducted by CIA Directors, id. at ¶ 32, "Exclusive For" documents, id. at ¶ 44, and Daily Intell Summaries, id. at ¶ 46 prepared by the agency, as well as meetings the Director held with other interested parties, (see, e.g., ¶¶ 25, and 26). With a few exceptions noted, the records of these reports have never been acknowledged or released by the agency.
Information obtained by Plaintiff also raises questions about the types of records that should have been included in the CIA's search. These include, for example, aerial reconnaissance photographs and analyses, see Hall Affid, ¶¶ 28-29, field station records, id. at ¶ 20, back channel and special channel communications, id. at ¶ 18, special compartmentalized information, id. at ¶ 19, and second and third party reports, id. at ¶ 17.
Attached to Plaintiff's affidavit are a number of declarations from third parties with first-hand knowledge of other CIA documents not acknowledged or released directly by the CIA. Former Congressmen Hendon (N.C.) and LeBoutillier (N.Y.) describe various meetings they attended with the Director of the CIA while they served on a House Task Force on POW/MIAs. See Attachments J and K to Hall Affidavit. They describe documents, including photographs from aerial reconnaissance conducted over Laos documenting the location of camps where American prisoners of war were being held that were shown to them at these meetings. They report on an attempted rescue made in 1981 at one of these locations near Nhom Marrott, Laos. Mr. LeBoutillier also testifies to first-hand knowledge that the government initially agreed to trade medical supplies for information about POW/MIAs in 1981 and that Director Casey was personally involved in both the decision to go ahead with, and later to stop, those shipments. See LeBoutillier declaration (Attachment K) at ¶ 11.
The wife of one POW, Carol Hrdlicka, describes in her declaration a number of pieces of information she has gathered about her husband, none of which is covered in the file on Col. David L. Hrdlicka released by the CIA. See Attachment A-21. For example, she has obtained information about extensive articles on her husband's presence at a Pathet Lao press conference in 1969 which appeared in Pravda, the Soviet newspaper. Hrdlicka declaration at ¶ 8. She acquired information from the State Department about a mission to rescue a POW, possibly her husband, from Laos. Id. at ¶ 11. She has also received a cable from the Defense Intelligence Agency reporting on live sightings of her husband from 1973. Id. at 14. The cable originated at the CIA. Finally, she has evidence of a possible sighting of her husband as late as June, 1989, id. at ¶ 15. None of the documents acknowledged or released by the CIA about Col. Hrdlicka date from after 1966.
There is more evidence gathered by Plaintiff that suggests the CIA should have more documents than it has acknowledged. Richard V. Allen, senior foreign policy and national security advisor to President Reagan, testified before the Senate Select Committee on POW/MIA Affairs about a 1981 mission to investigate a site where U.S. escape and evasion codes were crafted in the grass. That mission, unfortunately, found only an abandoned prison camp. See Attachment Q to Hall Affidavit. Admiral Inman, Deputy DCI from 1981 through 1982 testified before the Committee about the CIA's involvement at that time in monitoring reports of POW/MIA sightings and of the extensive record-keeping practices of both DCIs Turner and Casey. See Attachment U to Hall Affidavit. Ross Perot and several others who traveled overseas with him testified about briefings given them by CIA field station chiefs and documents pinpointing the location of prison camps they were shown at such briefings. See Attachments Z and A-1 to Hall Affidavit. Terry Reed, an Air Force Intelligence officer during Vietnam, testified in another FOIA case, about the Air Force's database of information on the location of POW/MIAs and the use of special codes to protect these locations in Laos from inadvertent U.S. bombing during the war. See Attachment A-2 to Hall Affidavit. Barry Toll, an Operations and Intelligence Specialist for the U.S. Army during the Vietnam war, provides a declaration in which he explains the CIA's involvement in operations in North Vietnam, Laos and Cambodia conducted by MACV SOG groups and testifies to first-hand confirmation that these records were given to the CIA. See Attachment A-4. Mr. Hall details in his affidavit various documents he has assembled verifying the presence of POW/MIAs in China and possibly the Soviet Union, Hall Affidavit at ¶¶ 43 and 48, which confirm CIA involvement in at least monitoring those activities, as well as information and testimony from former officers in the Royal Laotian government about giving various live sighting reports directly to the CIA. Hall Affidavit at ¶¶ 49 and 51. None of these subjects is addressed in the documents acknowledged or released by the CIA.
It is well-settled that the existence of a "handful of documents" from other sources or speculation as to what documents "might" or "must" exist will not call into question the adequacy of an agency's search, see, Canning v. Department of Justice, 919 F. Supp. 451, 459-60 (D.D.C. 1994). However, this case is not one where only a "handful" of documents has been found. Plaintiff has described dozens of concrete types of documents known to exist. In some cases, the existence of these records has been acknowledged by the agency. In some cases, the documents exist for certain time frames (e.g., pre-1973) but nothing has surfaced for any periods thereafter. In some cases, the CIA has released some of these documents for certain countries (e.g., information on prison camps in Vietnam), but not for others, even those where the CIA's active involvement in intelligence-gathering is well documented (e.g., Laos). Plaintiff has sworn testimony of the existence of many of these records from people who saw them. This is not a case where Plaintiff is merely speculating about what an agency might have or is left to argue about the existence of records from references in other documents. Plaintiff in this case has amassed substantial, hard evidence that should be more than sufficient to cast substantial doubt on the "reasonableness" of the agency's search.
When there is evidence of bad faith, summary judgment based upon agency affidavits alone is not appropriate. Perry v. Block, supra, and Meeropol v. Meese, 790 F.2d 942, 954 (D.C. Cir. 1986). Plaintiff has produced evidence of actions by the agency that constitute bad faith.
The agency has made numerous inconsistent statements about when it was conducting its search for documents responsive to E.O. 12812. As detailed in Roger Hall's affidavit, the agency sent a formal letter to the President dated November 9, 1993 indicating that it had completed its search and gathered all responsive documents. See Hall Affidavit at ¶ 13 and Attachment C. Then in 1994 in a letter to Mr. Hall, the agency claimed that its review was not complete. See Attachment E. Finally, in 1995, it made the same statement to Ms. Rainey, the sister of a POW/MIA who works with Mr. Hall. See Attachment F. Most importantly, however, Mr. Hall has learned from the Library of Congress that the last significant transfer of documents from the CIA came in 1992, prior to the enactment of E.O. 12812. See Attachment G. Thus, there is at least a possibility that no search was actually conducted by the CIA subsequent to the mandates of E.O. 12812 and PDD NSC 8.
Mr. Hall has also obtained evidence that officials at DPMO, the agency charged with coordinating responses from all federal agencies to E.O. 12812, was ordered to delete identifying information from CIA records. Hall affidavit at ¶ 50 and attachment A-14. Mr. Hall has provided an example of one such document where the identity of the agency creating it (believed to be the CIA) has been obliterated. If further testimony is needed on this point, there are two current DPMO employees who can be subpoenaed to testify about these practices.
Mr. Hall has also encountered numerous reports of the CIA's refusal to cooperate with the Senate Select Committee on POW/MIA Affairs in making agency records on POW/MIAs available. One such situation is documented at Hall Affidavit ¶ 46 and Attachment A-11. In each case, these are documents that, to date, were specifically seen or requested by the Senate Select Committee but which have not surfaced among the documents acknowledged or publicly released by the CIA.
These examples, either individually or collectively, demonstrate bad faith on the part of the CIA sufficient to have this Court deny the agency's motion for summary judgment at this time and allow discovery to proceed.
In Count IV of this litigation, Plaintiff has requested documents from the Senate Select Committee on POW/MIA Affairs (hereinafter "Senate Select Committee") that contain information originating with the CIA and over which the CIA holds classification authority. These documents, estimated to be about 40,000 pages, were sent by the National Archives and Records Service to the CIA for declassification review. At the time of Plaintiff's request, the documents were physically in the presence of the CIA.(4)
To be an "agency record" subject to FOIA, a federal agency must either "create" or "obtain" the material at issue and "must be in control of the requested materials at the time the FOIA request is made." Department of Justice v. Tax Analysts, 492 U.S. 136 (1989). When a claim is made that records are "congressional records" not subject to FOIA,(5) the Courts in this Circuit have employed a test that looks at "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 document resides." Washington Post v. Department of Defense, 766 F.Supp. 1 (D.D.C. 1991), citing Goland v. CIA, 607 F.2d 339 (D.C. Cir. 1978). In applying this test, courts are to look at two factors: 1) the circumstances attending the document's creation and 2) the conditions under which the document was transferred to the agency. Washington Post v. Department of Defense, 766 F. Supp. at 17-18. See also, Paisley v. CIA, 712 F.2d 686, 695(D.C. Cir. 1983); Holy Spirit Association v. CIA, 636 F.2d 838, 842(D.C. Cir. 1980). When the document was created by the agency, particularly when its creation pre-existed congressional involvement or review, courts are generally unwilling to find that the document has become a "congressional" record. See Allen v. Department of Defense, 580 F. Supp. 74 (D.D.C. 1983)("They [records generated by an agency] cannot, under any reasoning, become congressional through the mere fact of congressional review."); McGehee v. CIA, 697 F.2d 1095, 1107 and n.50(D.D.C. 1982). In examining the conditions surrounding the transfer of a document, the court is to consider "1) whether the transfer was for a specified limited purpose and on condition of secrecy and 2) whether Congress established contemporaneous and specific instructions to the agency limiting either the use or disclosure of the documents." Goland v. CIA, 607 F.2d 339, 347 (D.C. Cir. 1978). See also, Ryan v. Department of Justice, 617 F.2d 781, 785 (D.C. Cir. 1980). After-the-fact correspondence created for the purpose of litigation over the status of a record, is to be afforded little, if any, weight and will not be sufficient to prove congressional control. See, Paisley v. CIA, 712 F.2d at 694-95.
The Senate Select Committee's primary purpose was to provide public airing of issues relating to whether or not POW/MIAs were left at the end of the Vietnam War. As the Committee states in its Report, "[t]he Select Committee was created because of the need to reestablish trust between the government and our people on this most painful and emotional of issues. It was created to investigate and tell publicly the complete story about what our government knows and has known, and what it is doing and has done on behalf of our POW/MIAs." Senate Report at p. 3. All hearings and testimony were open, public proceedings. Senate Report at p.6. The only exception was where information still classified by a federal agency was to be discussed. In those situations, portions of depositions were closed and documents attached thereto as exhibits were marked as classified. When the Committee concluded its work, all its records were transferred to the Secretary of the Senate as provided by the administrative rules of the Senate for ultimate transfer to the National Archives and Records Service in accordance with E.O. 12812. See January 27, 1993 letter from Senators John F. Kerry and Bob Smith, Chairman and Vice-Chairman of the Select Committee to the Archivist attached as Exhibit 2 to Defendant's Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment (hereinafter "Defendant's Memorandum"). Likewise, the subsequent letter (dated July 28, 1993) from the Secretary of the Senate to the Acting Archivist makes it clear that the Committee wished for its "records [to] be made available to the public as soon as possible." See Letter attached as Exhibit 2 to Defendant's Memorandum. The Committee also stated in its final report that its records (including all staff notes, "raw opinion," etc.) will be sent to the National Archives "with specific instructions that they be made available for public review." Senate Report at p. 31.
With respect to the declassification of information, again, the Senate Select Committee stated clearly its preference for release of that information when it said:
[t]he Committee believes that this process [declassification of all documents on POW/MIAs] must-and-will continue until all relevant documents are declassified.3
3Subject only to the deletion of specific information that, if made public, would compromise intelligence sources and methods.
Senate Report at p. 6. In fact, it was at the suggestion of the Senate Select Committee that Senate Resolution 324 was passed mandating the enactment of E.O. 12812.
The records to which Plaintiff seeks access in Count IV consist of two kinds: a) information classified by the CIA from Committee depositions and b) exhibits, primarily CIA documents or documents containing CIA-classified information, attached to such testimony. In applying the applicable legal standard discussed above to the first group, it is clear that depositions and other statements were "created" by the Committee and thus, at least, began life as congressional records. However, it should quickly be noted that the only parts Plaintiff seeks (and the only parts not publicly available at this time) are those passages where the CIA initially claimed and continues to claim classification. The input of the CIA into the initial classification of these records is further supported by the fact that when most of the witnesses who had had access to CIA information testified before the Senate Select Committee, they were accompanied by CIA legal counsel to aid in the identification of this information. See, e.g., Deposition of Admiral Inman attached to Hall Affidavit as Attachment W. If the Senate had authority to declassify these portions, the Senate would be doing so now (or would have done so many years ago when the other Committee documents were made public). The letter of transmittal from the National Archives makes it clear that it considers the classified portions of these records to be "CIA equities." See May , 1998 letter attached to this memorandum as Exhibit 3. The CIA's authority as the classifier of this information demonstrates, therefore, that the agency retained "control" over these records from the outset even though they may have been physically created by Senate stenographers.
With respect to the second category of records, those CIA documents shown to witnesses and later attached as exhibits to their testimony, all such documents were created by the CIA or contained information (if in documents created by others) over which the CIA held classification authority. A quick review of the declassified portion of the list provided in this case, see Exhibit K to Defendant's Memorandum, will reflect a number of CIA-generated documents, for example, on p. 17, there are twelve entries entitled "RPT FR CIA to DIRNSA," three entitled "RPT FR CIA to NPIC," and one entitled "RPT FR CIA to BANGKOK." Thus, when you apply the relevant legal test to the facts of this case, the evidence shows that the CIA either created these record or exerted direct control over their creation.
The facts of this case are very different from the facts of Washington Post v. Department of Defense, 766 F. Supp. 1 (D.D.C. 1991) where the records were transcripts of congressional hearings taken in executive session and, therefore, subject to disclosure only upon a majority vote of the applicable committee Similarly, in Goland v. CIA, 607 F.2d 339, 347 (D.C. Cir. 1078), the Court was inclined to find records "congressional records" where there was evidence that the Chairman had sworn the stenographer and typist to secrecy. That is not the situation here, where all hearings were open and all depositions have now been declassified, except where the CIA has insisted in order to protect sensitive national security information, the information remains classified.
Also, when you look at the second portion of the test - the conditions surrounding the transfer of the documents - the evidence shows no efforts on the part of the Senate to retain control over the documents (except for the bare designation that all the documents in this collection are the property of the Senate Select Committee). The letters of transmittal(6) from the Senate to the Archivist state only that the documents are to be made available as soon as possible. The Archivist is charged with creating declassified versions of each classified document as soon as possible, and then ultimately declassifying the records in their entirety. Other than protecting the classified status of these records, there are no restrictions stated in either letter about access to the documents or their use by those with appropriate classification clearances. The letter from the Archives forwarding the documents to the CIA for review, see Exhibit 3 to this memorandum, likewise, contains no limitation on the documents use by the agency. While that letter makes it clear that the agency is being asked to review the documents for declassification, nothing suggests that the agency's use is limited to that purpose.
In Paisley v. CIA, 712 F.2d 686 (D.C. Cir. 1983), the Court looked for external indicia of congressional control or confidentiality on the face of the documents at the time of transfer, and when it found none, concluded that records, in the possession of the agency, were agency records subject to FOIA. This was particularly true where the document had existed prior to the congressional review. Id. at p. 695-96. In Holy Spirit Association v CIA, 636 F.2d 838 (D.C. Cir. 1980), the court made a distinction between cartons of records sent over to the agency with specific instructions that access was to be limited to those with congressional approval which it found to be congressional records and those where it found Congress had failed to exercise control. Id. at 843. In Judicial Watch v. Hillary Rodham Clinton, 880 F.Supp. 1, 11-12 (D.D.C. 1995), the court found that Congress had not abandoned its control over congressional testimony, when it returned it for correction with a cover sheet indicating it was "not to be released or distributed to any other person or entity." In this case, there are no congressionally-imposed indicia of control or limitations on use, and thus, these records must be agency records subject to access by Plaintiff under the FOIA.
The procedural history of Plaintiff's efforts to gain access to these records prior to filing this case and the likely effect of granting such access may also be relevant to the issue of "congressional" control. Plaintiff initially sought access to the records of the Senate Select Committee directly from the National Archives. He was told, however, that because the records remained classified they could not be disclosed without a declassification review. The CIA was identified as the only agency with authority to declassify these particular documents. See Hall Affid. at ¶ 57. It was Plaintiff's request that prompted the National Archives to send the records to the CIA and Plaintiff was told expressly by the Archives to go to that agency to seek their disclosure. It is interesting to note that Plaintiff was never told to go to the Senate or the Secretary of the Senate to seek permission for access. Id.
If this Court finds these records to be "agency records" subject to the FOIA, this ruling simply means that the agency must review the records for possible declassification in accordance with the procedures and time frames of the FOIA. Only those documents actually found by the agency to no longer qualify for classification will be released. But any documents that are released will clearly further the purpose of the Senate Select Committee and E.O. 12812 to bring to the public all information about POW/MIAs. As the Committee sates, "the Executive branch's penchant for secrecy and classification contributed greatly to perceptions of conspiracy . . . [t]he quest for the fullest possible accounting of our Vietnam era POW/MIAs must continue . . .." Senate Report at pp. 10-11.
III. Defendant Has Not Sustained Its Burden of Justifying Withholding of Portions of Records Responsive to Plaintiff's Requests.
A. Defendant Has Failed to Cite Any Exemption for Certain Withheld Information.
Defendant has failed to support its justification for withholding of portions of records released to Plaintiff in response to Count V. Despite having referred Plaintiff to the agency's list of previously released documents on this Count as well as the others, Defendant nevertheless conducted a search of such records and sent Plaintiff a total of 148 pages on five of the named individuals. A quick review of these documents highlights that most contain deletions of information. See sample pages selected at random and provided for the Court's convenience as Exhibit 4.
Defendant has offered no justification for these deletions. The McNair Declaration at ¶ 15 explains how these documents were assembled but he does not acknowledge that any information is withheld nor does he provide any justification or explanation in the later portions of the declaration (the Vaughn index section).
It is well-settled that the FOIA requires disclosure of all requested records unless information contained in the records falls within one of the nine specific exemptions to the law. The burden in on the agency to sustain any and all withholdings of information. 5 U.S.C. § 552(a)(4)(B). Department of the Air Force v. Rose, 425 U.S. 352, 361-62 (1976); Vaughn v. Rosen, 484 F.2d 820, 923 (1973) and 523 F.2d 1136, 1142 (D.C. Cir. 1975). When a FOIA request is made for documents that are classified, that request triggers a classification review. See E.O. 12958 at Sec. 3.7. Because there is no indication when these documents were originally reviewed and placed in the CIA's collection, there is no way to know if the deletions were made in accordance with E.O. 12958 enacted in 1995 which, in significant ways, changed both the substantive and procedural standards for classification from earlier executive orders. Because there is evidence that Defendant is withholding information in this case for which it has not made a claim of exemption, summary judgment for Defendant is inappropriate.
B. Defendant Cannot Support Its Use of Exemptions 1 and 3 to Withhold Information About Intelligence Sources of Live Sighting Reports and Other Publicly Released Information.
For three of the eleven documents for which Defendant has prepared a Vaughn listing (i.e., that portion of the McNair Declaration where he describes the documents, the information being withheld and explains the justifications for the exemptions claimed to protect those deletions), Defendant has claimed Exemptions 1 and 3 to protect live sighting reports (reports of POW/MIAs alleged to be seen alive) contending that release of any of the information from these reports would identify the source of the information.
Exemption 1 protects information "specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy" and is in fact properly classified under such an executive order. 5 U.S.C. § 552(b)(1). Executive Order 12958 is the currently applicable order on classification of documents. It was signed by President Clinton on April 17, 1995. Under that Order, information is to be automatically declassified after 25 years. Two of these documents are more than twenty-five years old (Document 1 dates from 1973 and document 3 from 1967). The only exception to the mandatory declassification is if the information would "reveal the identity of a confidential human source, or reveal information about the application of an intelligence source or method, or reveal the identity of a human intelligence source when the unauthorized disclosure of that source would clearly and demonstrably damage the national security interests of the United States." Section 3.4(b)(1) of E.O. 12958. Other documents, not yet twenty-five years old, are to be declassified in accordance with the time frames established at the time of their classification (E.O. establishes a maximum duration of 10 years), or if there is none, as soon as the information no longer qualifies for declassification. See Section 3.2(a) of E.O. 12958. Under E.O. 12958, to be classified Secret (as the McNair Declaration states is the case with Document 2), the classification authority must be able to identify or describe a "serious damage" to the national security that can 'reasonably" be expected to result from an unauthorized disclosure." Section 1.3(a)(2) of E.O. 12958.
The McNair Declaration discusses his review of the classification status of information about these intelligence sources at paragraphs 38 - 40. He states that protection of intelligence sources is "of paramount concern in the interests of national security" (at ¶ 40), not only because
of the importance served by sources to the intelligence-gathering mission of the agency, but also because of the "safety and welfare of the source" should his or her cooperation with the CIA become known. That may be true in many cases where the CIA uses clandestine sources; however, the U.S. government agreed, as part of the repatriation efforts with the countries in South East Asia, to make available to those countries the names of any person who provides information about live sightings of POW/MIAs. See Hall Affidavit at ¶ 56. Because Mr. Hall was told disclosure of the names occurs in 99% of the cases, Plaintiff should be allowed to take discovery to determine whether the names of the sources of these particular live sightings may have already been disclosed to the foreign government involved. If disclosure has already been made to the foreign government involved where, in the words of the CIA, "swift justice and harsh punishment" is likely to occur, Defendant cannot support its claim that serious and demonstrable harm will now result from subsequent disclosure to Plaintiff or the American people.
Defendant also cites Section 103(c)(6) of the National Security Act as justification for the withholding of this information. That statute grants to the Director the authority to protect "intelligence sources and methods." While that statute is broad in scope, it does not extend to information that has been publicly released.(7)
Defendant has also declined to release other information from these eleven documents that would reveal the location of clandestine field stations. The CIA's operation of field stations in Laos, Thailand, and Vietnam, however, is well known. The Court should either require Defendant to state under oath that the identity of field stations being withheld are not those otherwise publicly acknowledged, or this Court should review the documents in camera to independently determine that the particular field stations mentioned in the documents are not ones publicly known. The FOIA grants broad discretion for a court to conduct in camera review of documents to test the government's claims of exemptions. 5 U.S.C. § 552(a)(4)(B) and e.g., Ray v. Turner, 587 F.2d 1187 (D.C. Cir. 1978). See also, Washington Post v. Department of Defense, 766 F. Supp. 1, 14 (D.D.C. 1997)(re: information publicly known).
Finally, the FOIA requires the release of all reasonably segregable portions of non-exempt material. 5 U.S.C. § 552(b). Documents one through three, the live sighting reports, have been withheld in their entirety, despite the fact that the McNair declaration indicates the documents contain specific descriptions of POWs (documents 1 and 2) and a list of names of POWs being held in a certain prison camp in North Vietnam (3). It is impossible to understand why the personal information about the POWs cannot be released without compromising either the intelligence source or method or information about a CIA field station. The Court should review these documents in camera to independently test the agency's statements regarding segregability, particularly the statement that "once exempt information is deleted, any nonexempt bits of information are meaningless." McNair Declaration at ¶ 61. Commonsense would suggest that even a name or physical description of a POW would be significant to his loved one.
For all the reasons stated above, Defendant's motion for summary judgment should be denied. Plaintiff should be allowed to take discovery with respect to the scope of the agency's search for responsive documents and with respect to Defendant's claim of exemption for information that may have been previously disclosed. Defendant should be ordered to process the remainder of Plaintiff's request immediately, including the declassification of the Senate Select Committee records and any claims of exemption it wishes to make for the 148 pages of documents on individually-named POWs. Finally, this Court should review the eleven documents for which Defendant has provided a Vaughn index in camera.
Elaine P. English
D.C. Bar No. 375504
Graybill & English, L.L.C.
1920 N Street, N.W.
Washington, D.C. 20036
Counsel for Plaintiff, Roger Hall
Dated: November 30, 1998
1. The CIA indicated it was releasing information on six of the named individuals. However, the information released on one of the men (named "Stafford") does not pertain to the person about whom the request was made. See Affidavit of Roger Hall submitted in support of this Memorandum of Points and Authorities (hereinafter "Hall Affidavit") at paragraph 59.
2. The McNair Declaration suggests the agency's search was limited at the outset to "retrievable" records. See McNair Declaration at paragraph 18. Neither the FOIA nor the presidential directives that governed this search are limited to "retrievable" records. The FOIA provides a right of access to all records within the possession and control of an agency, 5 U.S.C. Section 552(a)(3)(A), and the executive orders applied to "all documents, files and other materials" of agencies. E.O. 12812. The FOIA is based on the presumption that all records of federal agencies are to be publicly disclosed. Department of the Air Force v. Rose, 425 U.S. 352 (1976). Sloppy or incomplete electronic indexing should not be allowed to subvert this mandate by conveniently making the documents "not retrievable."
3. E.O. 12812 mandated a complete search for all agency records on POW/MIAs.l
4. Defendant concedes the fact that it has possession of the documents, see Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment at p. 25, but argues that possession alone is not dispositive.
5. It is the government's burden to prove that the record remains under the control of an exempt entity. Paisley v. CIA, 712 F.2d 686 (D.C. Cir. 1983), and Holy Spirit Association v. CIA, 636 F.2d 838 (D.C. Cir. 1980).
6. Plaintiff contends that the October 7, 1998 letter from the Secretary of the Senate to the Archivist specially created for the purpose of this litigation should be disregarded in its entirety as a self-serving, after-the-fact attempt to recreate history. Holy Spirit Ass'n for Unification of World Christianity v. CIA, 636 F.2d, supra at 842 and Paisley v. CIA, supra, 712 F.2d at 695. The relevant letters are the contemporaneous letters of transmittal, dated January 17, 1993 and July 28, 1993.
7. Defendant will likely respond that even though the names of sources of live sighting reports must be disclosed to foreign countries where they reside, that disclosure does not acknowledge the sources' involvement with the CIA. A distinction which the agency has often made in other cases. It is well known, however, that the CIA conducted all interviews with returning POW/MIAs, refugees, and others who came forward to provide information about sightings of POW/MIAs, see Hall Affid. at paragraph 55 and Attachment A-17; thus, even the connection between the sources of live sighting reports and the CIA is publicly known.