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In Self Defense: How the Government Uses National Security
Reasons to Withhold Information Under the FOIA
By MARTIN HALSTUK
MARTIN HALSTUK
Doctoral Student in Media Law and Policy
University of Florida
College of Journalism and Communications
Graduate Division
2000 Weimer Hall
P.O. Box 118400
Gainesville, FL 32611-8400
(352) 392-6557
FAX: (352) 392-3919
E-mail: [log in to unmask]
AEJMC Law Division Entry
In Self Defense: How the Government Uses National Security Reasons To Withhold
Information Under the FOIA
(Abstract)
The American government's need for confidentiality and secrecy in the areas
of international relations and defense often conflicts with the democratic
principles of an open society. While secrecy is necessary to conduct foreign
affairs and devise national security policy, it also stifles the democratic
process that helps keep citizens informed about what the government is doing.
The purpose of this paper is to focus on court opinions in which the
government cited national security as the reason to reject requests for
disclosure under the Freedom of Information Act (FOIA). The principal question
posed in this analysis asks: Have the courts exceeded the plain meaning and
legislative intent of the FOIA in their opinions regarding the national security
exceptions?
In Self-Defense: How the Government Uses National Security...
INTRODUCTION
The American government's need for confidentiality and secrecy in the areas
of international relations and defense often conflicts with the democratic
principles of an open society.[1] While secrecy is necessary to conduct foreign
affairs and devise national security policy, it also stifles the democratic
process that helps keep citizens informed about what the government is doing.[2]
In a democracy, citizens can hold government accountable for what officials do
and remove them from office when their policies do not meet with public
approval. However, when government shields official actions from public
knowledge and review, such accountability is impossible.[3] As one commentator
notes: "Citizens can scarcely influence decisions they know nothing about. Where
secrecy reigns, government officials are in a position to rule at virtually
their own discretion."[4]
Nonetheless, secrecy is inherently a key to successful intelligence
operations and has a long history in the American experience.[5] In 1777, for
example, George Washington wrote about the need for secrecy in intelligence
gathering:
The necessity of procuring good intelligence is apparent
and need not be further urged. All that remains for me
to add is that you keep the whole matter as secret as
possible. For upon secrecy, success depends in most
Enterprises of the kind, and for want of it they are
generally defeated.[6]
To resolve this conflict between open government and national security in modern
times, Congress[7] and the courts[8] have sought to balance the benefits of an
informed public with the government's need for an effective intelligence
service. The purpose of this paper is to examine some Supreme Court and lower
federal court opinions dealing with the conflict between the national security
interest and the public interest in disclosure as expressed in the Freedom of
Information Act (FOIA or the Act).[9] This analysis seeks to determine whether
the courts have fairly balanced the governmental interests of withholding
information against the social value of open government. The principal question
posed in this analysis asks: Have the courts exceeded the plain meaning[10] and
legislative intent of the Freedom of Information Act in their opinions regarding
the national security exceptions?[11] A corollary question flows directly from
this query: What, indeed, was the congressional intent for the FOIA and the
national security exemptions?
In an effort to answer these questions, this paper examines the Freedom of
Information Act along with several court cases in which the government refused
to disclose information on grounds of national security. Section one discusses
the historic roots of the FOIA. Section two examines the legislative intent of
Congress in crafting the FOIA. The paper examines the congressional history of
the national security exceptions in the third section. Finally, the last
section analyzes several cases that illustrate how the courts permit the
government to withhold information for reasons of national security. In its
conclusion, this paper strongly suggests that the judiciary has allowed federal
agencies considerable leeway to use the national security exceptions to withhold
important information that could serve the public interest if disclosed.
I. HISTORIC ROOTS OF THE FOIA
The Freedom of Information Act is potentially one of the most valuable
tools of inquiry available to journalists and others who want to know what the
federal government is doing.[12] Government agencies collect vast amounts of
information that can serve the public interest if disclosed. For example,
journalists and others have used the law to learn why the Hubble Space Telescope
mirror failed,[13] to reveal FBI harassment of Dr. Martin Luther King, Jr.[14]
and to document the CIA's use of unwitting test subjects in LSD and mind-control
experiments that took place in American universities.[15]
The FOIA does not apply to state or local governments. The Act requires that
federal agencies provide any person access to all records that do not fall under
any one of nine exemptions.[16] The exemptions were created to balance the
public interest in this statutory "right to know" against the government's needs
to keep some information secret to function effectively.[17] Mainly, the
exemptions serve to protect the privacy of individuals, the proprietary
interests of businesses and corporations and to allow the government to keep
confidential certain information that deals with national security and foreign
policy.[18] The Act creates a judicially enforceable general presumption that
favors disclosure of government-held information to the public.[19]
Before 1966, the press and general public had no legal recourse when they
were denied access to government information. The movement to create this legal
right has its social and political roots in events that began two decades before
the Act was approved. America's use of the atom bomb to bring World War II to a
close created tremendous interest among the press and public for information
about this awesome new technology. It also prompted concerns among government
officials who said national security was threatened by newspaper and magazine
accounts of military readiness in the dawning era of atomic energy.[20]
In an attempt to settle this conflict, Congress passed the Administrative
Procedure Act (APA) in 1946,[21] ostensibly to provide for access to "matters of
official record." However, loopholes in the APA soon were being exploited by
government agencies to restrict access to records, and the law came to be
regarded as more of a withholding statute than a disclosure statute.[22] The
legislation's standards were vague and easily subject to anti-disclosure
interpretation,[23] thus justifying the withholding of any information
"requiring secrecy in the public interest."[24] Moreover, under the APA,
requesters of information were required to be "properly and directly concerned"
with the information sought.[25] This phrase allowed agencies to deny access to
persons requesting information if the information did not pertain specifically
to the requesters themselves. Critics of the APA were also troubled because the
law failed to provide a judicial remedy for confronting agencies that wrongfully
withheld information. This allowed any arbitrary and capricious agency decisions
to go unchallenged.[26]
As a result, federal agencies commonly abused the APA to justify
withholding information.[27] Shortly after the APA was approved by Congress,
federal regulatory agencies began almost automatically to withhold the names and
salaries of federal employees.[28] In 1959, the Postmaster General declared that
the public was not "properly and directly concerned" in knowing the names and
salaries of postal employees.[29] In 1961, the Secretary of the Navy ruled that
Navy telephone directories "fall in the category of information relating to the
internal management of the Navy," and he cited the APA as the authority for his
decision.[30] And in 1962, the National Science Foundation concluded it would
not be "in the national interest" to disclose cost estimates submitted by
unsuccessful contractors who bid on a multimillion-dollar deep sea study.
Apparently, the firm that won the contract was not the lowest bidder.[31]
The rise of government secrecy in the post World War II era has been traced by
some commentators to events in 1951.[32] By the fall of that year, new
developments were capturing the attention of newspaper readers and the
government; Communist governments were being formed in Europe and the conflict
in Korea was heating up. It is against this backdrop that a significant event
took place that increased government secrecy. On Sept. 24, 1951, President
Harry Truman issued an unprecedented Executive Order, which extended for the
first time a national security classification system that covered not only
military agencies but also nonmilitary federal agencies.[33] This order meant
that nonmilitary federal agencies were given the authority to withhold
government information by classifying material as vital to national security.
Truman believed that newspaper stories on military readiness, often accompanied
by photos and maps, endangered U.S. national security as the specter of
Communism loomed over Europe.[34] After World War II, for example, Fortune
Magazine published an article accompanied by a map locating atomic energy
research facilities.[35]
Reaction to the Truman order from the news media was swift and angry. For
example, on Sept. 25, 1951, CBS radio news broadcaster Edward R. Murrow told an
American audience listening to his regular newscast, Edward R. Murrow With the
News, that Truman's order "makes possible -- indeed invites -- the extension of
secrecy into vast areas where, by no stretch of the imagination would legitimate
security interests be involved. Loss of freedom and the suppression of
information generally come gradually. ... (I)f those who receive information
about our government do not protest, ... we will have lost -- without battle --
something we have regarded as rather important.[36]
Two days later, the Wall Street Journal followed Murrow's lead in a
strongly worded editorial that declared: "A free government lives on the freedom
of the people to know what their government is doing. There are risks in this,
of course, but they are not near so great as the risk we run if government
officers are to be free when they choose to deprive the people of the freedom to
know what they are doing."[37] And Sigma Delta Chi, the Society of Professional
Journalists, said the order's lack of an appeals procedure makes it possible for
an agency official to "draw a curtain of secrecy over information to which our
citizens are entitled."[38]
As a result of Truman's order, the classification of documents became more
commonplace and went well beyond military secrets, critics asserted. In 1953,
Harold L. Cross, a First Amendment scholar and the attorney for the New York
Herald-Tribune, noted that "there has been a heavy increase of secrecy in
several fields."[39] He said documents and records were routinely withheld by
government officials, "acting in the exercise of broad, practically unrestrained
powers of discretionary character."[40] Cross described agency records as
"quasi-confidential, privileged communications, commonly beyond the reach of the
public, press or courts."[41]
Amid this conflict between the press and the government, a movement
committed to open government and access to government-held information began to
take shape. The movement was sparked by a collaboration that began in 1955
between newspaper lawyer Cross and a reform-minded Congressman from Sacramento,
California, John E. Moss. Cross and Moss won the support of the newspaper
industry,[42] professional journalists, government reform groups and
organizations such as the American Civil Liberties Union, the American Bar
Association and some academic groups.[43] Their efforts started with moves to
revise the flawed Administrative Procedures Act[44] and culminated with the
passage of the Freedom of Information Act in 1966.
Although the FOIA eventually won wide support in Congress, and it is often used
successfully as a tool for finding out what government is doing, the Act is not
without critics. Critics contend the Act burdens agencies with information
requests that have nothing to do with the Act's goals.[45] They also say the Act
allows private individuals and corporations access to government information
that is of personal or financial benefit only to the requester. "The necessary
training for any big-time litigating lawyer now includes not only the
cross-examination of witnesses, but (also) use of the Freedom of Information
Act," declared Antonin Scalia before he was appointed to the Supreme Court.[46]
"In short, it is a far cry from John Q. Public finding out how his government
works."[47] Journalists also argue that the FOIA is often ineffective. Reporters
say agencies interpret the exemptions broadly to withhold information and use
procedural ploys to block or delay access inquiries.[48]
II. FOIA LEGISLATIVE INTENT
An examination of the Act's legislative intent is important for two reasons to
understand how the courts interpret the national security exemptions. First,
judges routinely interpret the FOIA's legislative intent before they rule on
challenges to any of the nine exemptions.[49] The second reason is more
complex. Under the 1974 FOIA amendment to Exemption 1, the courts have the right
to look at the contested records or documents in camera (in their chambers) for
a de novo review.[50] Before 1974, not even judges were allowed to review
documents that federal agencies refused to disclose under the national security
exemption. Thus, the legislative history of the 1974 amendments is important
because it shows why Congress believed it is necessary for the judiciary to
provide a check on the executive branch, which determines the criteria for
classification under the national security exemption.[51]
The congressional history of the FOIA represents a clear record of its
legislative intent. For example, a 1965 Senate report reflected that an
information policy of full disclosure is the engine that drives the Act:
Today the very vastness of our Government and its myriad of agencies makes it
difficult for the electorate to obtain that 'popular information' of which
Madison spoke.[52] But it is only when one further considers the hundreds of
departments, branches, and agencies which are not directly responsible to the
people, that one begins to understand the great importance of having an
information policy of full disclosure.[53]
Legislators buttressed their arguments for creating a legally enforceable right
to access by noting its historic roots in American tradition. They pointed out
that the Framers of the Constitution, in creating a democratic system of
self-government, recognized the crucial role of public access to information.
The works of James Madison[54] and Thomas Jefferson were often quoted by
legislators in House and Senate committee reports and Congressional hearings.
The perspective of legislators who crafted the Act was also echoed by President
Lyndon B. Johnson when he signed the FOIA into law on July 4, 1966: "This
legislation springs from one of our most essential principles: A democracy works
best when the people have all the information that the security of the nation
permits. No one should be able to pull the curtain of secrecy around decisions
which can be revealed without injury to the public interest."[55]
Despite the FOIA's clear legislative intent, wide congressional support and its
endorsement by key figures in the
Administration,[56] the law's first few years were not as successful as
hoped.[57] There was a general reluctance by agencies to comply with the law,
rendering it "a relatively toothless beast, sometimes kicked about shamelessly
by the agencies."[58] Federal agencies interpreted the exemptions broadly to
justify withholding documents. Officials also used various ploys to discourage
use of the Act, including high fees for copying documents, long delays and
claims that they could not find the documents requested.[59] In great part,
this state of affairs was the result of sometimes vague or even poor
draftsmanship of the FOIA. Criticism of the Act ranged from the subtle ("hardly
... the apogee of legislative draftsmanship") to the blunt ("primitive and
ineffective").[60]
Recognizing, in the words of Senator Edward M. Kennedy, that "the doors of
government would (not) be opened to the public,"[61] Congress acted to clarify
and strengthen the law through a series of amendments. By early 1973 -- amid
concerns about government secrecy as details of the Watergate scandal surfaced
-- bills to put teeth in the FOIA were introduced in the House and Senate.[62]
y Agencies were required to respond to information requests within 10 days or
face a lawsuit.[63]
y Federal district judges were permitted in camera review of top secret
classified information.[64]
y Search and copying fees were made uniform among the agencies.[65]
y Requested records need only to be described in a way sufficient to allow an
agency to find the category of the documents requested.[66]
Congress passed the 1974 amendments twice by overwhelming majorities,
overriding President Gerald Ford's veto the second time around.[67] The 1974
amendments sharpened the FOIA, reshaping the law as it stands today. The FOIA
applies to records held by agencies in the executive branch of federal
government, including the Executive Office of the President, and independent
regulatory agencies, such as the Federal Communications Commission, the
Environmental Protection Agency and the Securities and Exchange Commission.[68]
The FOIA does not apply to records held by state governments, Congress, the
courts, municipal corporations or private citizens. Nor does it apply to the
personal staff of the President and some executive-branch agencies whose sole
function is to advise the President, such as the Council of Economic
Advisors.[69] To help ensure access, the law requires that federal agencies
publish in the Federal Register their organization plans and regulations along
with procedures by which the public may obtain information.[70]
III. THE FOIA AND NATIONAL SECURITY
The government's practical necessities to enshroud information concerning
national defense and foreign relations poses special problems in a democratic
society.[71] The resolution of this conflict between governmental secrecy and
open government rests in balancing the benefits of an informed public with the
national security need for an effective intelligence service. To help achieve
this balance Congress created the national security exemption in the Freedom of
Information Act.[72]
Exemption 1, the national security exemption, states that the provisions of the
FOIA do not apply to matters that are "(A) specifically authorized under
criteria established by an Executive Order to be kept secret in the interest of
national defense or foreign policy and are in fact (B) properly classified
pursuant to such Executive Order."[73] Congress crafted the exemption's current
language in a 1974 amendment to revise its original language. The 1966 version
of the national security exemption said only that the FOIA did not apply to
maters "specifically required by Executive Order to be kept secret in the
interest of national defense or foreign policy."[74]
The 1974 Amendment to Exemption 1
Before 1974, information classified as "confidential," "secret" or "top
secret" could not have been examined even by judges to determine whether the
material was properly classified.[75] In a 1973 opinion, for example, the
Supreme Court ruled in Environmental Protection Agency v. Mink[76] that once the
President had determined by Executive Order that certain information was to be
classified, the information was exempt from judicial review.[77]
In this case, the Court rejected a request by U.S. Representative Patsy
Mink to obtain classified documents used by President Richard Nixon to decide
whether to conduct a nuclear test off the coast of Alaska. The government
refused to disclose the report, contending it was classified "Top Secret," and
cited Exemption 1 as its authority to withhold the information.[78] In a 7-to-2
vote, the Court construed Exemption 1 broadly and ruled in favor of
nondisclosure, ruling that the mere fact of classification was sufficient to
justify withholding the documents from the public.[79] The Court held that the
national security exemption neither permitted nor compelled in camera (in
chambers) inspection by judges to sort out those documents that contained no
secrets.[80] All that the government was required to establish is that the
document (1) was indeed classified and (2) fell within the categories protected
from disclosure by Executive Order.[81]
In a concurring opinion, Justice Potter Stewart agreed, acknowledging that
the majority opinion was based on a correct interpretation of Exemption 1's
language. However, Stewart was critical with the exemption as it was written,
prompting the caustic comment that the national security exemption "provides no
means to question an executive decision to stamp a document, 'secret,' however
cynical, myopic, or even corrupt that decision may have been."[82]
Congress amended the Exemption 1 in 1974 in response to the Mink opinion
because legislators believed that the Court's ruling conflicted with the general
philosophy of full disclosure evinced in the FOIA.[83] Exemption 1 was amended
in two ways:[84] First, it modified the national security exemption to clarify
that the court had the power to look beyond the mere fact that material had been
classified and could consider whether classification was proper. Second, the
amendment provided that the court had the power to conduct in camera review of
the information that the government contended was classified. However, judges
cannot challenge the classification standards adopted by a President; they can
determine only whether the information was properly classified according to
those standards.[85]
The Executive Order on Classified National Security Information establishes
both substantive and procedural criteria for withholding national security
information. Substantive criteria spell out what categories of information may
be considered for classification. Some examples include military plans, programs
for safeguarding nuclear materials or facilities, foreign relations activities
and intelligence activities.[86] Procedural criteria specify the proper
procedures for classifying national security information. For example, only
specifically designated officials may classify information. Additionally,
classified information must be marked to show the identity of the classification
authority, the classification level and declassification instructions.[87]
Presidential Standards for Classification
Exemption 1 is the only FOIA exemption that allows the executive branch,
rather than Congress, to determine the criteria for withholding information.
Because the national security exemption is tied directly to Presidential
standards for classification, it is important to note how these standards have
varied since the 1974 amendments were adopted. President Jimmy Carter, for
example, tended to support a presumption for disclosure. In 1978, he issued an
Executive Order[88] that favored declassification if the public interest in
disclosure outweighed damage to national security that "might be reasonably
expected from disclosure."[89] In addition, all classified documents and
materials were automatically declassified after six years.[90]
President Reagan departed sharply from President Carter's stance on
classification and issued an Executive Order in 1982[91] that enlarged
classification authority.[92] Under the Reagan Administration, the
classification policy -- which the Bush Administration later followed --
prescribed more classification. In addition, agencies classifying information
were not required, as they had been under Carter, to balance the need for
security against the public's interest in disclosure.[93] Finally, the standard
for deciding the "confidential" classification was relaxed from Carter's
"identifiable damage to national security" to a reasonable expectation that
damage would take place.[94]
President Bill Clinton's current Executive Order on Classified National
Security Information[95] became effective Oct. 17, 1995, and replaced the
previous Executive Order, which was issued by President Reagan on April 2,
1982.[96] It is too soon to tell how Clinton's Executive Order might affect
future court decisions interpreting rules for disclosure under the FOIA. But
after 30 years of experience with FOIA, the courts to date have allowed a broad
meaning for national security interests and thus have restricted access to
important information. For example, historian and legal scholar Dwight L.
Teeter, Jr., noted in 1995[97] that:
y The CIA budget is never officially disclosed, though reports in The New York
Times and in other publications estimated the annual budget for 1994 at $28
billion.
y The ultra-secretive National Security Agency, which oversees satellite
intelligence activities, reportedly has a budget larger than the CIA's.
y The National Reconnaissance Office (NRO), an agency run jointly by the
Pentagon and the CIA, had construction well under way on a $350 million spy
satellite headquarters outside Washington, D.C., before Congress found out
about it. The Senate Intelligence Committee did not know its size, location
or cost, because the project was a state secret until 1992. This revelation
prompted Senate Intelligence Committee member Howard Metzenbaun to say: "This
project is a good example of what happens when ... the Government does
business in the dark."[98]
Exemption 3 and the National Security Act
In addition to Exemption 1, the national security exemption, American national
security interests are covered under Exemption 3.[99] This exemption, known as
the withholding-statutes exemption, allows Congress to make the secrecy decision
instead of a federal agency. Congress created Exemption 3 to allow agencies to
refuse Freedom of Information Act requests for information that is exempted by
another statute, even though the information might not be exempted by any of the
nine FOIA exemptions. This exemption thus resolves any conflicts that may arise
when a FOIA requester seeks information that Congress has previously determined
to be confidential.
Although Exemption 3 applies to records held by a wide variety of federal
agencies, it is relevant to the present analysis because it is often used by the
Central Intelligence Agency to justify withholding information under the
FOIA.[100] The CIA frequently has used Exemption 3 to justify refusals to
disclose CIA-held information[101] since 1985, when the Supreme Court ruled[102]
that the National Security Act of 1947[103] qualifies as a withholding statute.
The policy objectives behind the National Security Act of 1947 are in sharp
contrast with the mandate for full disclosure that underlies the FOIA. Enacted
after World War II, the National Security Act created the Central Intelligence
Agency and authorized the agency to collect and evaluate intelligence related to
national security.[104] The Act resulted from Congressional concern over the
adequacy of American intelligence operations before the attack on Pearl Harbor
and during the ensuing war.[105] Congress intended that the Act would improve
the nation's ability to gather and analyze intelligence information in times of
war and peace.[106]
A key provision of the National Security Act[107] gives the Director of
Central Intelligence broad and unreviewable authority to withhold from
disclosure any information that, in his opinion, may jeopardize the national
security.[108] Under this provision, the information need not be classified.
Exemption 3 clearly "casts a much wider net"[109] than Exemption 1, whose
requirements for withholding are based on specific criteria set forth by
Presidential executive orders for classification.[110]
Some courts have recognized the government's "built-in incentive" for the kind
of secrecy that has been legitimized in Exemption 1 and Exemption 3 -- it helps
to conceal mistakes.[111] Most courts, however, have not challenged this
tendency toward unnecessary secrecy when agencies raise the national security
interest. Courts typically give automatic deference to officials who cite
Exemption 1 as grounds to refuse to disclose information.[112] An analysis of
key cases shows how the courts have broadly defined the boundaries of the FOIA
when it comes to national security, which to the judiciary means national
defense and the foreign relations of the United States.[113]
IV. CASE ANALYSES
An analysis of court FOIA rulings, in which judges have upheld agency decisions
to withhold information for national security reasons, suggests that these cases
typically fall into one of three categories. According to this model, these
categories are called (A) The Government's Word, (B) The Nondenial Denial and
(C) The Judicial Dead End.
A. The Government's Word
When it comes to Exemption 1, the national security exemption, courts have
been reluctant to second-guess the government when it comes to classification of
documents. The law states that a court may determine whether the documents were
properly classified -- it does not say a court must rule on a dispute.[114] In
general, when it comes to the national security exemption of the Freedom of
Information Act, FOIA authority James T. O'Reilly suggests that FOIA requesters
"will obtain fewer useful records when faced with the national security
exemption ... than they will against claims of exemption under virtually any
other of the nine exemptions."[115] A main reason for this kind of restricted
access is that the courts defer nearly automatically to the judgment of military
officials when it comes to issues that may pertain to national security.[116]
In practice, most courts will refuse even to examine the classified documents
when a requester's application for disclosure has been rejected for reasons of
national security. Judges have declared that courts lack the necessary
expertise to make such a determination.[117] In other words, the court takes the
government's word that the refusal to disclose the information was in keeping
with the substantive and procedural criteria established by the President's
Executive Order.[118] "Far more than any judges, (government and military
officials) have the background for making classification and declassification
decisions," the Court of Appeals for the Fourth Circuit ruled in Alfred A.
Knopf, Inc. v. Colby,[119] a leading case on Exemption 1. Courts have echoed
this view in subsequent cases.[120]
Judges have shown they are especially unwilling to question affidavits by
military officials, allowing "utmost deference"[121] to military arguments that
documents have been properly classified. For example, in deciding Taylor v. the
U.S. Dept. of the Army,[122] the Court of Appeals for the District of Columbia
refused to review in camera documents sought by reporter Jack H. Taylor of the
Daily Oklahoman. Taylor requested a compilation of all combat-unit readiness
reports, and the district court ordered the Army to produce the documents
because individual reports had been unclassified for 20 years. However, the
Court of Appeals reversed the decision because affidavits by three generals
declared that disclosure of the reports would result in "identifiable" damage to
the national security. "In view of the knowledge, experience and positions held
by the three (generals) regarding military secrets, military planning and
national security, their affidavits were entitled to the utmost deference," the
D.C. Circuit held.[123]
The courts have held that a summary judgment in favor of the government is
warranted on the basis of affidavits when (1) the affidavits demonstrate in
"reasonably specific detail" that (2) the information "logically falls" within
the national security exemption and (3) the affidavits are not controverted by
contrary evidence or (4) the affidavits are not undermined by "agency bad
faith."[124] Additionally, judges have justified their reliance on affidavits by
saying they are simply too busy to consider every first exemption dispute. "In
camera inspection in each FOIA case would create a staggering burden both for
this court and the district court," the D.C. Circuit said.[125]
B. The Nondenial Denial
In some instances, judges do not have the option to review government-held
information to determine whether the material qualifies for disclosure under the
FOIA. This situation arises because courts have held that the CIA is permitted
to respond to an FOIA request by saying the Agency can "neither confirm nor
deny" the existence of a document for national security reasons.[126] Such a
reply, known as the "Glomar response," was first accepted in 1976 when
journalist Harriet Phillippi requested information on a research ship called the
Hughes Glomar Explorer.[127]
In Phillippi v. CIA,[128] The D.C. Circuit upheld the CIA's refusal to
confirm or deny that the agency had records on the vessel. The CIA spent more
than $350 million in this joint project with the late Howard Hughes to raise an
outmoded Russian submarine that sank about 750 miles northwest of Hawaii.[129]
Hughes built a giant 36,000 ton floating platform to raise the vessel. The
secret project, which ultimately raised part of the obsolete sub, was passed off
to the public as a deep-sea mining expedition.[130] The courts also have upheld
the "neither confirm nor deny" response concerning requests for records
describing or authorizing CIA covert paramilitary operations directed at
Nicaragua.[131]
When an agency responds to a request for information by refusing to confirm or
deny that the documents exist, the court must first treat the issue of whether
the documents even exist as the request.[132] The courts require that the
agency must provide an affidavit, explaining in as much detail as possible, the
basis for its claim that it can be permitted to neither confirm nor deny
existence of the requested records.[133] However, as we have seen with cases in
"The Government's Word" category, courts give "utmost deference"[134] to
affidavits by officials.
The CIA successfully used the "nondenial denial" to refuse disclosure as
recently as Dec. 4, 1996. A New York federal judge held that the CIA properly
invoked the "neither confirm nor deny" response to a request seeking information
about the existence of a CIA station in the Dominican Republic in 1960.[135]
The U.S. District Court for the Southern District of New York upheld the CIA
argument, which asserted that "such a confirmation could cause a confrontation
with the Dominican Republic or the disruption of foreign relations."[136]
In asking for the information from the CIA, the requester noted that the
existence of the station was made public in a Senate committee report in
1975.[137] The requester simply wanted official CIA confirmation about the
station's existence. Echoing the CIA position, the court concluded "countries
are willing to tolerate the presence of CIA installations in their country only
if the United States does not officially acknowledge that such stations exist.
Thus, confirmation of the existence of such an installation, even by another
branch of the federal government, is different from the CIA itself acknowledging
the existence of the base."[138]
C. The Judicial Dead End
In the event that an agency confirms the existence of records and a judge
decides to review the material in camera, there are carefully prescribed
statutory limits as to how much discretion a judge has when it comes to
releasing information withheld under the Exemption 1 rationale.[139] According
to the Congressionally established limits set out in Exemption 1 of the Freedom
of Information Act,[140] a judge's role is limited to determining only whether
the material was properly classified. In basing a decision upon an in camera
review, judges do not have the authority to question the standards established
by the executive branch for classification of records. Judges can decide only
whether the information was properly classified according to those standards.
If the proper classification procedures have been followed and the documents
fall under Exemption 1, then the court must uphold an agency's decision to
withhold information.
This procedure has been followed by most judges even in instances when the
information sought is so dated that the documents can be likened more to
historical records than intelligence records.[141] For example, in 1984 the
Court of Appeals for the District of Columbia upheld the CIA's refusal to
disclose information on alleged attempts by the United States to sneak
guerrillas into Albania between 1945 and 1953.[142] In Miller v. Casey, a
historian seeking this information for a book wanted to confirm unofficial
reports that a joint espionage effort was conducted by the United States and
Great Britain to infiltrate the Albanian Communist government with partisans.
All the agents were either captured or killed. The CIA, in justifying its
refusal to release the 30-year-old information, said disclosure and publicity
might jeopardize future relations with Albania.
Courts also have upheld the government's refusal to disclose documents
about the Cuban Missile Crisis and anti-Cuban CIA operations going back more
than 30 years. These documents are believed to contain information about U.S.
military and economic plans to bring down the Castro government.[143] In one
case, Maynard v. CIA,[144] a district court judge ordered the government to
release this kind of information to a FOIA requester, ruling that the CIA's
"assertion that disclosure will 'reveal its sources and methods' in a matter now
approximately 30 years old is without substance and is, indeed, the height of
disingenuousness."[145] However, this decision by the U.S. District Court for
the District of Maine was reversed by the U.S. Court of Appeals for the First
Circuit in 1993.[146]
Although the limited discretion of the judiciary in Exemption 1 cases might
be short-sighted when it comes to disclosing information of important historical
interest, it is nonetheless prescribed by Congress. This judicial limit is part
of a checking system that balances deference to the President's interests in
maintaining secrecy with continued judicial and congressional oversight.[147]
However, when it comes to Exemption 3, the so-called "catch-all" exemption,[148]
the calculus is dramatically altered. As a result of a 1985 Supreme Court
opinion in CIA v. Sims,[149] the CIA can use the National Security Act of 1947
to withhold any information -- including unclassified information -- at the
discretion of the Director of Central Intelligence. This broad and unreviewable
authority[150] to withhold information applies even to information that concerns
outright wrongdoing by the CIA in covert activities directed at American
citizens on U.S. soil.[151]
Such wrongdoing was the subject of CIA v. Sims,[152] a case that concerns a
1977 FOIA request for information that would disclose the identities of
universities and researchers who took part in government-sponsored experiments
in mind control from 1953 to 1965.[153] These experiments were conducted by 185
researchers in 80 institutions, including universities, research centers and
similar facilities. Code named MKULTRA, the project was concerned with
developing chemical, biological and radiological materials capable of use in
operations to control human behavior.[154] Experiments included the
surreptitious use of LSD and other drugs on unwitting test subjects, some of
whom were lured into taking the drugs by prostitutes hired by the CIA. The
experiments resulted in at least two documented deaths, possibilities of serious
health problems for others and a government cover-up.[155] Information about
these experiments leaked out and Senate hearings were conducted.[156] Afterward,
a FOIA request for information about MKULTRA was filed by a public interest
group headed by Ralph Nader.
The CIA refused to disclose the information and cited the National Security Act
of 1947, which is permissible under Exemption 3,[157] to defend its refusal to
release details of the project. Chief Justice Warren Burger, writing the
unanimous opinion, upheld the government's justification for refusing to
disclose information about the CIA: "(F)orced disclosure of the identities of
its intelligence sources could well have a devastating impact in the Agency's
ability to carry out its mission. ... If potentially valuable intelligence
sources come to think that the Agency will be unable to maintain the
confidentiality of its relationship to them, many could well refuse to supply
information to the Agency in the first place."[158]
The problem with this rationale, however, was pointed out in a concurrence to
Sims, written by Justice Thurgood Marshall and joined by Justice William
Brennan. The two justices asserted that the majority created the undesirable
precedent of giving the CIA unchecked discretion to decide whether to withhold
information from the public.[159] Marshall and Brennan agreed in the result of
the majority opinion[160] -- to withhold the identities of the MKULTRA
researchers. But they declined to join the opinion because they believed the
Exemption 3 rationale allowed the CIA to thwart efforts by Congress to balance
the public's interest in access to information with the government's need for
secrecy.[161] They believed the CIA should have been compelled to use the
Exemption 1 exception citing national security because it provides for executive
branch and judicial oversight. Marshall and Brennan concluded that the majority
opinion to uphold the CIA's use of Exemption 3 resulted in unreviewable and
virtually unlimited CIA discretion to withhold information requested under the
FOIA.[162]
Under the precedent set by the Supreme Court in Sims, the courts have no
discretion whatsoever to review withholding by the CIA under Exemption 3.[163]
This decision has created a "judicial dead end" when it comes to oversight, thus
removing the safety net that the checks and balances system provides. The CIA
has used Sims successfully as precedent in at least 12 cases since 1985.[164]
For example:
y In 1996, the Court of Appeals for the Ninth Circuit upheld the CIA's refusal
to disclose whether Claude Barnes Capehart, acting as a CIA agent, was
involved in an agency plot to assassinate President Kennedy.[165] Capehart,
who died
in 1989, claimed to have been a CIA agent involved in the Kennedy
assassination. The
CIA withheld the information on grounds of national security.
y In 1993, the Court of Appeals for the First Circuit upheld the CIA's
position that national security justified the Agency's decision to withhold
information wanted by the wife of a man who disappeared on a flight over Cuba
in 1961 while supposedly distributing anti-Castro leaflets.[166] The
information on
his mission was ordered released by the district court, but the appeals court
reversed
the decision, ruling that the information falls under the protection of the
National
Security Act of 1947.
y In 1992, the Court of Appeals for the Ninth Circuit upheld a CIA refusal to
confirm or deny the existence of records requested by a murder defendant. The
FOIA request was for information that concerned his alleged victim, an Iranian
citizen with ties to the CIA and links to drug trafficking and blackmail.[167]
The
CIA said disclosing the information could jeopardize national security.
SUMMARY AND CONCLUSION
This analysis strongly suggests that the courts have allowed the government
considerable leeway to use the two national security exceptions[168] to justify
withholding information from the public. The model presented in this analysis
shows how these types of cases typically fall into at least one of three
categories. The model also illustrates some of the problems of access that arise
when the government uses the court-granted latitude to withhold FOIA requests in
the name of national security.
A persistent problem with Exemption 1 is the nearly automatic deference
that courts give to government "expertise" in the national security area, as
evidenced in the Taylor and Knopf cases. Another problem concerns the court's
apparent willingness to go along with agency refusals to disclose important
facts of history and dated government activities -- some going back 30 years and
more -- as in the Sims and Miller cases.
The problem with Exemption 3 is that it grants broad and unreviewable authority
to the Director of Central Intelligence to withhold any information that, in his
opinion, may threaten national security. Consequently, this national security
exception places the intelligence agency beyond the orbit of the government's
system of checks and balances, when it comes to access to records. Such a
blanket exemption from FOIA disclosure requirements has disturbing implications
in light of the CIA's troubled record. The appointment of George M. Tenet as
acting CIA director in December 1996 gave the Agency its fifth director in less
than 10 years. From 1994 to 1996 alone, there have been a series of embarrassing
incidents that have contributed to the Agency's history of administrative
problems, imprudent actions and outright misdeeds. Consider:
y In November 1996, career CIA officer Harold J. Nicholson was charged with
espionage for betraying American spies and passing a wide range of top-secret
information to Moscow. Nicholson, a former station chief in Romania, is the
highest-ranking CIA employee arrested for spying.[169] Nicholson's arrest came
two
years after the government revealed in March of 1994 that CIA agent Aldrich H.
Ames, a
former chief of the soviet counterintelligence branch, had sold CIA secrets
for nine
years.[170]
y In October 1996, the government said it would investigate accusations that
the CIA played a key role in introducing crack cocaine to the American inner
cities to help finance U.S.-backed contra rebels in Nicaragua.[171]
y In October 1995, CIA Inspector General Frederick Hitz recommended that three
former CIA directors be held accountable for disinformation that was passed to
Presidents from Soviet double agents between 1986 and 1994. Hitz blamed R.
James Woolsey, Robert M. Gates and William H. Webster for the CIA's failure to
inform the White House that the CIA had known that much of the top-secret
intelligence information acquired by the United States was obtained from
Soviet double agents.[172]
y In February 1995, four CIA officers were accused by France of conducting an
economic espionage operation against the French government. The CIA was, in
effect, spying for Hollywood. The United States was unhappy with French
demands to restrict imports of U.S. television programming into Europe, and
part of the CIA operation was to determine the strength of the French
bargaining position in television and telecommunications trade
negotiations.[173]
The Freedom of Information Act[174] was passed to provide the public with a
statutory right to know and ensure access to government-held information. The
national security exceptions[175] were crafted to protect the government's needs
to maintain secrecy in matters of intelligence and foreign affairs. Clearly,
these two opposing policy objectives must be balanced in a democratic society.
However, when actions to impose secrecy do not pass a balancing test that
requires clear non-discretionary guidelines, these actions should be suspect. In
the words of Thomas Jefferson, "Experience has shown that even under the best
forms (of government), those entrusted with power have, in time, ... perverted
it into tyranny. ... (I)t is believed that the most effectual means of
preventing this would be to illuminate, as far as practicable, the minds of
people at large."[176]
SOURCES
Principal Cases
Earth Pledge Foundation and Fundacion Cultural Dominica v. CIA,
Civil Action No. 95 Civ. 0257 (JGK), (S.D.N.Y. 1996).
Maynard v. CIA,
986 F.2d 547 (1st Cir. 1993)
CIA v. Sims
471 U.S. 159 (1985)
Miller v. Casey
730 F.2d 773 (D.C. Cir. 1984)
Taylor v. Dept. of the Army
684 F.2d 99 (D.C. Cir. 1982)
Phillippi v. CIA
546 F.2d 1009 (D.C. Cir. 1976)
Alfred A. Knopf, Inc. v. Colby
509 F. 2d 1362 (4th Cir. 1975)
Environmental Protection Agency v. Mink
410 U.S. 73 (1973)
Government Codes, Statutes, Reports
Administrative Procedure Act of 1946, 5 U.S.C. Sec. 1002.
National Security Act, 50 U.S.C. Sec. 403(d)(3) (1994).
Freedom of Information Act, 5 U.S.C. Sec. 552 (1994).
"Freedom of Information Act Source Book: Legislative Materials, Cases,
Articles," Subcommittee on Administrative Practice and Procedure of the
Committee on the Judiciary, U.S. Senate, 93rd Cong., 2nd Sess., U.S. Government
Printing Office (1974).
Articles and Periodicals
Robert P. Deyling, "Judicial Deference and De Novo Review in Litigation Over
National Security Information Under the Freedom of Information Act," 37
Villanova Law Review 67 (1992).
Kathleen L. Endres, "National Security Benchmark: Truman Executive Order 10290
and the Press," Journalism Quarterly, Vol. 67, No. 4 (winter 1990).
William N. Eskridge, "The New Textualism," 37 UCLA Law Review 621 (1990).
Paul H. Gates, Jr. and Bill F. Chamberlin, "Madison Misinterpreted: Historical
Presentism Skews Scholarship," American Journalism, Vol. 12, No. 1 (1996).
Harold C. Relyea, "The Presidency and the People's Right to Know," The
Presidency and Information Policy (1981).
Antonin Scalia, "The Freedom of Information Act Has No Clothes," Regulation
(March/April 1982).
"Note: The First Amendment Right to Gather State-Held Information," 89 Yale Law
Journal 923 (1980).
Broadcasting & Telecasting, Oct. 1, 1951.
Wall Street Journal, editorial, Sept. 27, 1951.
"The Press & the Law: Court Bans FOIA Probe of Central Files," Washington
Journalism Review (May 1989).
Books
Allan Robert Adler, ed., Litigation Under the Federal Open Government Laws,
American Civil Liberties Union Foundation (1995).
Harold L. Cross, The People's Right to Know, Columbia University Press (1953).
Justin D. Franklin and Robert F. Bouchard, Freedom of Information and Privacy
Acts, Thomson Legal Publishing, Inc. (1996).
Itzhak Galnoor, ed., Government Secrecy in Democracies, New York University
Press (1977).
Peter C. Hein, Business Information: Protection and Disclosure, the Freedom of
Information Act and Related Laws, Harcourt Brace (1983).
Marvin Kalb, The Nixon Memo, University of Chicago Press (1994).
W. Page Keeton, Dan B. Dobbs, Robert E. Keeton, David G. Owen, Prosser and
Keeton on the Law of Torts, West Publishing Co. (1984).
Kent R. Middleton, Bill F. Chamberlin, The Law of Public Communication, Longman
Publishers (1994).
Kent R. Middleton, Bill F. Chamberlin and Matthew D. Bunker, The Law of Public
Communication, 1995 update to the 1994 edition, Longman Publishers (1995).
James T. O'Reilly, Federal Information Disclosure: Procedures, Forms and the
Law, Shepard's/McGraw-Hill, Inc. (1994).
Don R. Pember, Mass Media Law, Brown & Benchmark (1993).
Dwight L. Teeter and Don R. Le Duc, Law of Mass Communications: Freedom and
Control of Print and Broadcast Media, Foundation Press (1995).
John Ullman and Steve Honeyman, eds., The Reporter's Handbook: An Investigator's
Guide to Documents and Techniques, Investigative Reporters & Editors, Inc., St.
Martin's Press, 1983.
[1] See The Freedom of Information Act, 5 U.S.C. Sec. 552 and The National
Security Act, 50 U.S.C. Sec. 403(d)(3).
[2] U.S. Dept. of the Air Force v. Rose, 425 U.S. 352 (1976). See also Harold
Edgar and Benno C. Schmidt, Jr., Curtiss-Wright Comes Home: Executive Power and
National Security Secrecy, 21 Harv. C.R.-C.L. L. Rev. 349, 352-53 (1986).
[3] Francis E. Rourke, The United States, in Government Secrecy in Democracies
119, Itzhak Galnoor, ed., 1977.
[4] Id.
[5] CIA v. Sims, 471 U.S. 159, 172 n. 16 (1985).
[6]
Id. citing 8 Writings of George Washington 478-79 (J. Fitzpatrick, ed.,
1933)(letter from George Washington to Col. Elias Dayton, July 26, 1777).
[7]
5 U.S.C. Sec. 552(b)(1) and Sec. 552(b)(3).
[8]
See, e.g., Minier v. CIA, 88 F.3d 796 (9th Cir. 1996); Maynard v. CIA, 986 F.2d
547 (1st Cir. 1993); Sullivan v. CIA, 992 F.2d 1249 (1st Cir. 1993); Hunt v.
CIA, 981 F.2d 1116 (9th Cir. 1992); Knight v. CIA, 872 F.2d 660 (5th Cir. 1989);
Fitzgibbon v. CIA, 911 F. 2d 755 (D.C. Cir. 1990); U.S. Student Assn. v. CIA,
620 F.Supp. (D.D.C. 1985).
[9]
The national security interests are covered in the FOIA under two of its
exemptions, Exemption 1 and Exemption 3. 5 U.S.C. Sec. 552(b)(1) and Sec.
552(b)(3).
[10]
Plain meaning refers to a statute's structure and actual language, i.e., "the
apparent meaning of the statutory text." William N. Eskridge, Jr., The New
Textualism, 37 UCLA L. Rev. 621, 625 (1990).
[11]
See supra note 9.
[12]
See Amy E. Rees, Recent Developments Regarding the Freedom of Information Act:
"Prologue to a Farce or a Tragedy; or, Perhaps Both," 44 Duke L.J. 1183, (1995);
James A. Goldston, Jennifer M. Granholm, Robert J. Robinson, A Nation Less
Secure: Diminished Public Access to Information, 21 Harv. C.R.-C.L. L. Rev. 408,
(1986); Mark Jordan, Freedom of Information Act: CIA's Right to Nondisclosure
Broadened by Liberal Definition of Intelligence Source, 25 Wash. L. Rev. 586,
(1986); Michael H. Hughes, Note: CIA v. Sims -- Supreme Court Deference to
Agency Interpretation of FOIA Exemption 3, 35 Cath. U. L. Rev. 279, (1985).
[13]
Id.
[14] Kent R. Middleton and Bill F. Chamberlin, The Law of Public Communication
456 (1994).
[15]
471 U.S. 159 (1985).
[16]
Briefly stated, the FOIA does not apply to matters that fall under the
categories of (1) classified information and national security, (2) internal
agency personnel information, (3) information exempted by statutes, (4) trade
secrets and other confidential business information, (5) agency memoranda, (6)
disclosures that invade personal privacy, (7) law enforcement investigatory
records, (8) reports from regulated financial institutions and (9) geological
and geophysical information. 5 U.S.C. Sec. 552(b)(1-9).
[17]
S. Rept. No. 813, 89th Cong., 1st Sess. (1965), reprinted in Freedom of
Information Act Source Book: Legislative Materials, Cases, Articles (1974), at
38, hereinafter, The Source Book. The Source Book of the Senate Subcommittee on
Administrative Practice and Procedure of the Committee on the Judiciary is a
primary source for the legislative history of the FOIA.
[18]
Id.
[19]
425 U.S. at 373. See also S. Rep. 813, 89th Cong. 1st Sess. (1965), reprinted
in The Source Book, at 38.
[20] See Kathleen L. Endres, National Security Benchmark: Truman, Executive
Order 10,290, and the Press, in Journalism Quarterly, Vol. 67, No. 4 (winter
1990).
[21]
5 U.S.C. Sec. 1002 (1946).
[22]
A 1965 Senate report on the proposed FOIA legislation described the APA as
"full of loopholes which allow agencies to deny legitimate information to the
public. Innumerable times it appears that information is withheld only to cover
up embarrassing mistakes or irregularities. ..." S.Rep. No. 813, 89th Cong., 1st
Sess. (1965), reprinted in The Source Book, at 38. A 1966 House report noted
that "improper denials (occurred) again and again" under the APA. H. Rep. No.
1497, 89th Cong., 2d Sess. (1966), reprinted in The Source Book, at 26.
[23]
Id.
[24]
5 U.S.C. Sec. 1002 (1946).
[25]
Id.
[26]
"For more than 10 years, through the administration of both political parties,
case after case of improper withholding based upon (the APA) has been
documented. The Administrative Procedure Act provides no adequate remedy to
members of the public to force disclosures in such cases." H. Rep. No. 1497,
89th Cong., 2d Sess. (1966), reprinted in The Source Book, at 26.
[27]
"Improper denials occur again and again. For more than 10 years, through the
administrations of both political parties, case after case of improper
withholding based upon 5 U.S.C. 1002 (The Administrative Procedures Act) has
been documented." Id.
[28] Id. at 27.
[29]
Id.
[30]
Id. at 26.
[31]
Id.
[32]
Endres, supra note 20, at 1072.
[33] Id. citing Executive Order 10290 (1951).
[34]
Id. Truman's executive order is significant because it granted classification
authority to nonmilitary agencies involved in national security matters.
However, it was President Franklin D. Roosevelt who issued in 1940 the first
executive order that authorized government officials to classify military and
naval information. Previously, classification of information was left to
military regulation. See Exec. Order No. 8381, 3 C.F.R. 634 (1938-1943). See
Harold C. Relyea, The Presidency and the People's Right to Know, The Presidency
and Information Policy I, 16-18 (H. Relyea, ed. 1981).
[35]
Endres, supra note 20, at 1071.
[36] A.M. Sperber, Murrow: His Life and Times (Freundlich Books, 1986), at 360.
[37]
Wall Street Journal, at 6, Sept. 27, 1951.
[38]
George A. Brandenburg, Sigma Delta Chi Opposes Security Rule, Editor &
Publisher, Nov. 24, 1951, at 12.
[39]
Harold L. Cross, The People's Right to Know (New York: Columbia University
Press, 1953), at 9.
[40]
Id. at 198.
[41]
Id.
[42]
Echoing widespread support of newspapers across the nation, a June 15, 1966
editorial in the Cincinnati Enquirer stated: "(T)he fact of the matter is that
the cloak of secrecy has been stretched to conceal more and more governmental
activities and procedures from public view. Many of these activities and
procedures are wholly unrelated to the nation's security or to individual
Americans' legitimate right to privacy." Also, the Los Angeles Times reported on
June 12, 1966 that the proposed FOIA legislation was regarded by many supporters
as a "new Magna Carta."
[43]
Itzhak Galnoor, What Do We Know About Government Secrecy? See supra note 3, at
290.
[44] Moss served as head of the Government Information Subcommittee of the
House Committee on Government Operations. Between 1955 and 1960, Moss, a
Democrat who opposed the Republican Administration's withholding policies, held
173 hearings and investigations and issued 17 volumes of hearings transcripts
and 14 volumes of reports. James T. O'Reilly, Federal Information Disclosure --
Procedures, Forms and the Law (New York: Shepard's/McGraw-Hill, Inc., 1994), at
2.5.
[45] See, e.g., Antonin Scalia, The Freedom of Information Act Has No Clothes,
in Regulation, March/April 1982, at 16.
[46]
Id.
[47]
Id.
[48]
Middleton, supra note 14, at 456.
[49]
For examples of how courts discuss and apply legislative intent, see e.g.
Hayden v. National Security Agency, 608 F.2d 1381, 1390; Weissman v. CIA, 565
F.2d 692, 697; Sims v. CIA, 471 U.S. 159, 170.
[50]
Under the procedure of de novo review, judges have the authority to conduct
their own examination of documents to determine whether the CIA complied with
criteria for classification, which are determined by Executive Order. 5 U.S.C.
Sec. 552(a)(4)(B).
[51]
5 U.S.C. Sec. 552(b)(1). See H.R. Rep. No. 1380, 93d Cong., 2d Sess. 12 (1974);
S. Rep. No. 1200, 93d Cong. 2d Sess. 12 (1974), reprinted in 1974 U.S. Cong. &
Ad. News 6290. See Pub. L. No. 93-502, 1-3, 88 Stat. 1561, Nov. 21, 1974. See
also Environmental Protection Agency v. Mink, 410 U.S. 73 (1973).
[52]
Madison wrote: "A popular Government, without popular information, or the means
of acquiring it, is but a prologue to a farce or a tragedy; or perhaps both.
Knowledge will forever govern ignorance; And a people who mean to be their own
Governors, must arm themselves with the power which knowledge gives." Letter
from James Madison to W.T. Berry (Aug. 4, 1822), reprinted in 9 The Writings of
James Madison 103 (Gaillard A. Hunt ed., 1910).
FOIA legislatures and commentaries on the Act frequently cite this famous
quotation by Madison to support a position that access has historic roots traced
to the Framers. The philosophy expressed in the quotation can be interpreted in
this regard, but it is important to note that the remark was actually made in
the context of expanding a public education system in Kentucky. See Paul H.
Gates, Jr. And Bill F. Chamberlin, Madison Misinterpreted: Historical Presentism
Skews Scholarship, in American Journalism, Vol. 12, No. 1, 38-47 (1996).
[53] S. Rep. 813, 89th Cong. 1st Sess. (1965), reprinted in The Source Book, at
38.
[54]
See supra note 52.
[55]
Public Papers of the Presidents, Lyndon B. Johnson, 1966 II, at 699. Also cited
in The Source Book, at 1.
[56]
For example, former Attorney General Ramsey Clark, who served under President
Johnson, characterized the FOIA's policy of full disclosure as the "transcendent
goal" of the Act. Foreward to the Attorney General's Memorandum on the Public
Information Section of the Administrative Procedures Act (1967).
[57]
See Letter to Sen. James O. Eastland, chairman, Senate Committee on the
Judiciary, from Sen. Edward M. Kennedy, The Source Book, at III.
[58]
Scalia, supra note 45, at 15.
[59]
Allan Robert Adler, ed., Litigation Under the Federal Open Government Laws
(American Civil Liberties Union Foundation, 19th ed., 1995), at 8.
[60]
O'Reilly, supra note 44, at 3.2.
[61]
See supra note 57.
[62] Robert P. Deyling, Judicial Deference and De Novo Review in Litigation
Over National Security Information Under the Freedom of Information Act., 37
Vill. L. Rev. 67 (1992), at 74-75.
[63]
5 U.S.C. Sec. 552(a)(6)(A)(i).
[64] 5 U.S.C. Sec. 552(a)(4)(B); H.R. Rep. No. 1380, 93d Cong., 2d Sess., 11
(1974).
[65]
Id. at 7.
[66] Id.
[67] The first vote was 383 to 8 in the House and 64 to 17 in the Senate;
Congress overrode Ford's veto 371 to 31 in the House and 65 to 27 in the Senate.
[68]
5 U.S.C. Sec. 552(f).
[69] S. Conf. Rep. No. 1200, 93d Cong. 2d Sess. 15 (1974). See also e.g.
Rushforth v. Council of Economic Advisors, 762 F.2d 1038, 1042-43 (D.C. Cir.
1985).
[70] 5 U.S.C. Sec. 552(a)(3),(4)(A).
[71]
471 U.S. at 174-77.
[72]
5 U.S.C. 552(b)(1).
[73]
5 U.S.C. Sec. 552(b)(1) (1994).
[74]
5 U.S.C. Sec. 552(b)(1) (1966).
[75]
Id.
[76]
410 U.S. 73 (1973).
[77]
Id. at 84.
[78]
Id. at 75.
[79]
Id. at 84.
[80]
Id. at 81.
[81]
Id.
[82]
Id. at 95.
[83]
See H.R. Rep. No. 1380, 93d Cong., 2d Sess. 12 (1974); S. Rep. No. 1200, 93d
Cong., 2d Sess. 12 (1974), reprinted in 1974 U.S. Cong. & Admin. News 6290. See
Pub. L. 93-502, 1-3, 88 Stat. 1561, Nov. 21, 1974.
[84]
Peter C. Hein, Business Information: Protection and Disclosure, The Freedom of
Information Act and Related Laws 86 (1983).
[85]
Id.
[86]
Adler, supra note 59, at 30.
[87] Id. at 33.
[88] Exec. Order No. 12,065, 3 C.F.R. sec. 190 (1978).
[89]
Judith Pfeffer, "Executive Order 12356: An Analysis," in The Reporter's
Handbook: An Investigator's Guide to Documents and Techniques 95 (1983).
[90] Id. at 96.
[91]
Exec. Order No. 12356, 3 C.F.R., sec. 166 (1982).
[92]
Pfeffer, supra note 89, at 95-97.
[93]
Id. at 96-97.
[94]
Id. at 95.
[95] Exec. Order No. 12958,, 3 C.F.R. 166 (1982 Comp), reprinted as amended in
5 U.S.C. Sec. 552.
[96]
Exec. Order No. 12356, 3 C.F.R. 66 (1982).
[97]
Dwight L. Teeter, Jr., and Don R. Le Duc, Law of Mass Communications: Freedom
and Control of Print and Broadcast Media 639 (1995).
[98]
Id., citing Tim Weiner, New CIA Office Draws Heavy Fire, New York Times, Aug.
9, 1994, at A-1.
[99]
5 U.S.C. Sec. 552(b)(3).
[100]
Adler, supra note 59, at 66. It also applies to the Internal Revenue Service,
the Census Bureau, the Federal Trade Commission, the Equal Employment
Opportunity Commission and the Postal Service, which is why it is referred to as
the "catch-all" exemption. It is often used along with Exemption 1, the national
security exemption, when an agency, usually the CIA, withholds information for
national security reasons.
[101]
Minier v. CIA, 88 F.3d 796 (9th Cir. 1996); Maynard v. CIA, 986 F.2d 547 (1st
Cir. 1993); Sullivan v. CIA, 992 F.2d 1249 (1st Cir. 1993); Hunt v. CIA, 981
F.2d 1116 (9th Cir. 1992); Knight v. CIA, 872 F.2d 660 (5th Cir. 1989);
Fitzgibbon v. CIA, 911 F. 2d 755 (D.C. Cir. 1990); U.S. Student Assn. v. CIA,
620 F.Supp. (D.D.C. 1985).
[102]
471 U.S. 159.
[103]
50 U.S.C. Sec. 403(d)(3) (1947).
[104] Id.
[105]
A 1947 House report that accompanied the legislation for the National Security
Act said the U.S. war effort "disclosed certain fundamental weaknesses in our
security structure which should be remedied while their details are fresh in
mind." The report pointed to this nation's "slow and costly mobilization" and
"limited intelligence of the designs and capacities of our enemies" as
convincing evidence that the United States "would be imperiled were we to ignore
the costly lessons of the war and fail to recognize our national security
structure so as to prevent the recurrence of these defects." H.R. Rep. No. 1051,
80th Cong., 1st Sess., reprinted in 1947 U.S. code Cong. Serv. 1488-89. See also
H.R. Rep. No. 961, 80th Cong., 1st Sess. 3-4 (1947), and S. Rep. No. 239, 80th
Cong. 1st Sess. 2 (1947).
[106] "One of the characteristics of the present era is the need to maintain
adequate security measures at all times, rather than only when hostilities
threaten or have broken out." H.R. Rep. No. 1051, 80th Cong., 1st Sess.,
reprinted in 1947 U.S. code Cong. Serv. 1488.
[107]
Sec. 102(d)(3) of 50 U.S.C. Sec. 403(d)(3).
[108]
471 U.S. at 191-92.
[109] United States Student Assn. v. CIA, 620 F.Supp. 565, 570 (D.D.C. 1985).
[110]
5 U.S.C. Sec. 552(b)(1) and Sec. 552(b)(3). See also 471 U.S. at 189-90.
[111]
"Congress was certainly aware that agencies, left to themselves, have a
built-in incentive to dispose of records relating to 'mistakes' or, less
nefariously, just do not think about preserving 'information necessary to
protect the legal and financial rights ... or persons directly affected by
agency's activities.'" American Friends Service Committee v. Webster, 720 F.2d
29, 41 (D.C. Cir. 1983), citing 44 U.S.C. Sec. 3101.
[112]
See, e.g., Taylor v. U.S. Department of the Army, 684 F.2d 99, 111 (D.C. Cir.
1982) and Weissman v. CIA, 565 F.2d 692, 697 (D.C. Cir. 1977).
[113]
684 F.2d at 111.
[114]
Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362, 1367 (4th Cir. 1975).
[115]
O'Reilly, supra 44, 11-1.
[116] 684 F.2d at 111 and 565 F.2d at 697.
[117]
565 F.2d at 697.
[118]
The Executive Order on Classified National Security Information establishes
both substantive and procedural criteria for withholding national security
information. Substantive criteria spell out what categories of information may
be considered for classification. Procedural criteria specify the proper
procedures for classifying national security information.
[119]
509 F.2d at 1370.
[120]
"(F)ew judges have the skill or expertise to weigh the repercussions of
disclosure of intelligence information." Weissman v. CIA, 565 F.2d 692, 697
(D.C. Cir. 1977).
"Congress intended reviewing courts to respect the expertise of an agency; for
us to insist that the agency's rationale here is implausible would be to
overstep the proper limits of the judicial role in FOIA review." Hayden v.
National Security Agency, 608 F.2d 1381, 1388 (D.C. Cir. 1979).
See generally, Weinberger v. Catholic Action of Hawaii/Peace Project, 454 U.S.
139 (1981), in which the Supreme Court ruled 9-0 that great weight must be given
to the claims of government and military officials who argue for a need for
secrecy. In Weinberger, the Court allowed the Department of the Navy to get
around the filing of an environmental impact report for construction of a
weapons storage area in Hawaii, because the document would have been open to
inspection under the FOIA.
[121] 684 F.2d at 109.
[122]
684 F.2d 99.
[123]
Id. at 109.
[124]
565 F.2d at 697. See also Military Audit Project v. Casey, 656 F.2d 724, 738
(D.C. Cir. 1981), citing Baez v. U.S. Department of Justice, 647 F.2d 1328, 1335
(D.C. Circuit 1982).
[125]
565 F.2d at 697.
[126]
Phillippi v. CIA, 546 F.2d 1009, 1012-13 (D.C. Cir. 1976).
[127]
Id.
[128]
546 F.2d 1009 (D.C. Cir. 1976).
[129]
656 F.2d 725-27.
[130]
Id. at 742, citing a 1976 Senate committee report.
[131]
Peterzell v. Faurer, No. 85-2685 (D.D.C. July 11, 1986).
[132]
Hudson River Sloop Clearwater v. U.S. Department of the Navy, 891 F.2d 414 (2d
Cir. 1989). See also Adler, supra note 49, at 40.
[133]
546 F.2d at 1012-13.
[134]
684 F.2d at 109.
[135]
Earth Pledge Foundation and Fundacion Cultural Dominica v. CIA, Civil Action
No. 95 Civ. 0257 (JGK) (S.D.N.Y. 1996).
[136] Id.
[137]
Sen. Frank Church headed the Select Committee to Study Government Operations
with Respect to Intelligence Activities.
[138]
Civil Action No. 95 Civ. 0257 (JGK) (S.D.N.Y. 1996).
[139]
5 U.S.C. Sec. 552(b)(1).
[140]
Id.
[141]
There are perhaps as many as one billion classified documents, some going back
to World War I, according to Steven Garfinkel, director of the Information
Security Oversight Agency, the federal agency that administers the
classification system. There are 325 million pages of classified documents in
the National Archives alone. 1993 Report to the President, Information Security
Oversight Office.
[142]
Miller v. Casey, 730 F.2d 773 (D.C. Cir. 1984).
[143]
See generally Brenner v. United States Department of State, Civil Action No.
99-0034 (D.D.C. filed Jan. 7, 1988), cited in Robert P. Deyling, Judicial
Deference and de Novo Review in Litigation Over National Security Information
Under the Freedom of Information Act, 37 Vill. L. Rev. 76, 69 (1992).
[144]
986 F.2d 547 (1st Cir. 1993).
[145]
Id. at 554.
[146]
Id. at 556.
[147]
471 U.S. at 183.
[148] See supra note 100.
[149]
471 U.S. 159 (1985).
[150]
Id. at 168-69.
[151]
471 U.S. 159.
[152] Id.
[153]
Id. at 161-62.
[154]
Id.
[155]
Id.
[156]
See Project MKULTRA: the CIA's Program of Research in Behavioral Modification,
a 171-page record of the Joint Hearing Before the Senate Select Committee on
Intelligence and the Subcommittee on Health and Scientific Research of the
Committee on Human Resources, 95th Cong., 1st Sess. (1977).
[157]
See supra note 100.
[158]
471 U.S. at 175.
[159]
Id. at 186, 189, 192.
[160] Id. at 181.
[161] Id. at 182, 189.
[162] Id. at 191-92.
[163] Hunt v. CIA, 981 F.2d 1116, 1120 (9th Cir. 1992).
[164]
Minier v. CIA, 88 F.3d 796 (9th Cir. 1996); Maynard v. CIA, 986 F.2d 547 (1st
Cir. 1993); Sullivan v. CIA, 992 F.2d 1249 (1st Cir. 1993); Hunt v. CIA, 981
F.2d 1116 (9th Cir. 1992); Knight v. CIA, 872 F.2d 660 (5th Cir. 1989);
Fitzgibbon v. CIA, 911 F. 2d 755 (D.C. Cir. 1990); U.S. Student Assn. v. CIA,
620 F.Supp. (D.D.C. 1985).
[165] 88 F.3d 796.
[166]
986 F.2d 547.
[167]
981 F.2d 1116.
[168]
See supra note 9.
[169]
Career CIA Officer Is Charged With Spying for Russia, Los Angeles Times, A-1,
Nov. 14, 1996.
[170]
"Deadly Mole," Newsweek, 24, March 7, 1994. The arrests of Nicholson and Ames
are only the most recent in a series of publicized and unpublicized CIA
counterintelligence failures going back to the mid 1980s. They include the late
discovery and subsequent escape to Moscow of former CIA agent Edward Lee Howard
in September 1985; the redefection of KGB officer Vitaly Yurchenko two months
later; the 1987 discovery that almost all the 40 or so agents among Fidel
Castro's military and intelligence services recruited by the CIA were really
double agents; and the 1989 finding that the handful of East German agents
recruited by the CIA were actually double agents. CIA Struggles to Find Identity
in a New World; Ames Scandal Highlights Many Agency Problems, Washington Post,
A-1, May 9, 1994.
[171]
The investigation was prompted by an August 1996 series by the respected
California newspaper San Jose Mercury News (winner of the 1986 Pulitzer prize),
which asserted that the origins of the nation's crack epidemic can be linked to
two major Nicaraguan drug traffickers linked to the Contra rebels. "U.S. Aides
Vow Thorough Probe of CIA Crack Charge," Reuters North American Wire, Oct. 23,
1996.
[172]
It was learned that between 1986 and 1994, CIA officers passed on at least 35
reports to top U.S. policy-makers without disclosing that the information came
from suspected Soviet double agents. "CIA Linked to at Least 35 Suspect
Reports," Los Angeles Times, A-21, Nov. 10, 1995.
[173]
The bungled operation forced the CIA to suspend virtually all of its operations
in France in 1995. The suspension almost certainly hurt the CIA's ability to
collect information in France on international terrorism and arms smuggling.
"Downplayed by CIA, Paris Incident Has Wide Impact," Los Angeles Times, A-1,
Oct. 11, 1995.
[174]
5 U.S.C. Sec. 552 (1994).
[175] Exemption 1, the national security exemption to the FOIA, 5 U.S.C. Sec.
552(b)(1); and The National Security Act of 1947, which qualifies as a
withholding statute under Exemption 3 to the FOIA, 5 U.S.C. Sec. 552(b)(3). See
generally 471 U.S. 159.
[176]
Proposed Bill for the More General Diffusion of Knowledge, in 2 The Writings of
Thomas Jefferson, at 220-21 (P. Ford, ed., 1893).
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