Content-Type: text/html A Safeguard for National Security or a Wall of Secrecy Protecting Government Agencies? The Freedom of Information Act, Exemption 1 Submitted for the AEJMC annual convention Law Division by Nelson Mumma Jr. Graduate Student in the School of Journalism and Mass Communication at the University of North Carolina at Chapel Hill. 305 S. May St., Apt. 1 Southern Pines, NC 28387 910-246-0247 [log in to unmask] A_q_ _____¨_______________ ___bjbjt+t+__________________ ___-____A___A________________________________˜˜__________˜˜__________˜˜__________________]_____E_______E___E_______E_______E_______E_______E_______________ ______ ______ ______ ______ __ ______ ___ ______C______0______4______4______4______4______4______4______4____________ _______ _______ _______ _______ _______ ___$___—___“___‘__ͺ___.______________________E_______4______________________4______4______4______4______._______H______E_______E_______4______________4______0______H______H______H______4__ ___E_______4______E_______4_____________________________š_______“_______E_______E_______E_______E_______4_____________H__A___H_____________________E_______E______________________________________________________________________4______$__ ___…BœƒJ<¨_ ______ ______>__ ________________________________________________________________________________________________________________________________________________ABSTRACT A Safeguard for National Security or a Wall of Secrecy Protecting Government Agencies? The Freedom of Information Act, Exemption 1 The Freedom of Information Act was created to ensure that ordinary American citizens have access to government agency documents. This is important because it theoretically keeps the government accountable and allows individuals to access information they might need to knowledgeably vote and participate in the democratic process. However, Congress created nine exemptions to the FOIA, which allow government agencies to withhold information under certain conditions. Exemption 1 allows agencies to withhold documents if the release of these documents could harm national security or foreign relations. This paper examines the FOIA, Exemption 1 by studying district and appellate court rulings since President Bill Clinton signed Executive Order 12958 in 1995. The Executive Order was supposed to improve the FOIA's effectiveness by creating a "presumption of disclosure." Therefore, FOIA Exemption 1 court rulings since then should tend to favor disclosure. According to the findings, President Clinton's Executive Order has not created an improved openness in government. In the 14 cases examined, judges ruled for the plaintiff, and thus disclosure, in only two cases. This is because agencies continue to hide behind Exemption 1 when disclosing information, judges are unprepared to provide rigorous judicial review, and plaintiffs are not afforded the opportunity to provide meaningful adversarial challenge. ________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ___1___a_______________š___Q___ ___ __ __–νo€Œ_o_o_‰________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________CJ ___CJ____5_CJ___CJ____CJ____>*_CJ___ ____ ___ ___1___a_______________š___‘__Q___ ___ __ __–____________–____________–____________•____________d____________‘____________‰____________‘____________α____________α____________Y____________‘____________‰______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________D_d…________d…_________$____ __$__„y__>p__A_________ ____ ___ ___1___a_______________š___‘__Q___ ___ __ __yyy_£φ“‹‚„ P________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________H£˜˜_I£˜˜___˜˜__ty˜˜__p˜˜__O˜˜˜__O˜˜˜_O˜˜˜_______ __ψD/ ψ…=!ψ_"ψ_#___$___%ψ__ FOIA General Reinhard Gehlen was the chief of a Nazi spy ring during World War II. After the war ended, Gehlen reportedly negotiated an agreement with the United States that allowed his spy ring to continue its existence despite programs that were created to rid Germany and Europe of all Nazi influence.[1] The group was know as the Gehlen Organization after the war, and after 10 years under U.S. authority, control was shifted to the West German Federal Republic, according to Carl Oglesby, a professional writer and lecturer.[2] Beginning in 1985, Oglesby submitted Freedom of Information Act (FOIA) requests for the records pertaining to Gehlen's activities during and after the war. Oglesby sent his request to the Department of the Army, the Central Intelligence Agency, the Federal Bureau of Investigation, the National Security Archives and Records Administration, the National Security Agency, and the State Department. Every agency denied Oglesby a majority of the information he requested. Eleven years later, after having exhausted all other means of getting the information and having lost in the U.S. District Court for the District of Columbia, Oglesby's case made it to the District of Columbia Circuit Court of Appeals.[3] Here, the court decided that half the agencies had fulfilled their responsibilities under the FOIA, and, therefore, were justified in withholding information. However, half of the agencies had not, the court ruled, and it remanded the case back to the district court for proceedings dealing with these agencies' nondisclosures. Therefore, Oglesby still didn't have his information and had to wade through more proceedings to get it.[4] Courts denying Oglesby's request for governmental agency documents relied on FOIA Exemption 1, which exempts from disclosure properly classified records relating to national defense and foreign policy. Of the nine FOIA exemptions, it is one of the most effective in denying public access to records.[5] The purpose of this paper, then, is to explore the Freedom of Information Act, specifically Exemption 1, to determine if by having these cases go to court, agencies are abusing FOIA by denying the American people access to government records. This paper will focus specifically on the cases decided after Clinton's Executive Order 12958, which at least theoretically made it more difficult for agencies to withhold documents and attempted to create a "presumption of disclosure" among agencies.[6] This subject is important because, for true democracy to survive, individuals must have the knowledge to make educated decisions about whom they vote for and causes they pursue, and to generally ensure government doesn't abuse its powers. James Madison said it best 177 years ago: 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.[7] Alexander Hamilton echoed Madison's remarks when he wrote that citizens must "stand ready to sound the alarm when necessary, and to point out the actors in any pernicious project."[8] Sen. Daniel Patrick Moynihan, D-N.Y., chairman of the U.S. Commission on Protecting and Reducing Secrecy, provided a present-day argument for freedom of information: "If everything's a secret, then people think, 'What are they keeping from us?' It's very unhealthy for a large proportion of the population to think that the government itself might be the enemy."[9] Government agencies, however, have for various reasons, including national security, made it difficult to get information about their conduct. The U.S. government is creating roughly "10,000 secrets a day" and spending more than $5 billion a year trying to maintain what amounts to about 10 billion pages of secrets.[10] This secrecy has eroded the public's faith in government, making it difficult for elected officials to make public policy.[11] Breaking through this barrier of secrecy without help, though, is virtually impossible. The Freedom of Information Act, if applied properly, is that help. History of the Freedom of Information Act The FOIA was created in 1966, with an effective date of July 4, 1967. The Act was intended to prevent government agencies from insulating themselves and their operations from the public view.[12] Senator Ted Kennedy, D-Mass., said the government touches every aspect of people's lives, from the food they eat to the cars they drive, making the FOIA that much more important: "The Freedom of Information Act guarantees citizens access to government information and provides the key for unlocking the doors to a vast storeroom of information."[13] However, by creating nine exemptions to the FOIA, Congress essentially cordoned off part of that storeroom, creating what Moynihan called an inevitable conflict.[14] The district court in United States v. Progressive, Inc. spoke to this conflict when it stated: "In the short run, one cannot enjoy freedom of speech, freedom to worship, or freedom of the press unless one first enjoys the freedom to live. Forced with a stark choice between upholding the right to continued life and the right to freedom of the press, most jurists would have no difficulty in voting for the chance to continue to breathe and function as they work to achieve perfect freedom of expression."[15] In creating the national security exemption, Congress only generally defined it as including classified information dealing with "national defense or foreign relations of the United States." In laying out specific criteria for classifying governmental documents, President Bill Clinton's 1995 Executive Order created a more specific standard that can essentially act as a working definition for national security.[16] No matter what the definition, though, this exemption has become an umbrella under which agencies withhold information. Since 1967, government agencies have used Exemption 1 to withhold information hundreds of times.[17] The FOIA provides that an individual making a proper request should have access to nonexempt governmental records, including electronic records.[18] In cases where information is withheld, requesters may take the withholding agency to court to force disclosure under FOIA.[19] While the original FOIA set up judicial review as a means of ensuring a balance between protecting necessary government secrets and an individual's right to know, the Act did not create specific guidelines on how courts should handle their responsibility. However, an amendment to FOIA in 1974 did.[20] Over the years, due to the sensitive nature of Exemption 1 documents, courts developed alternatives to the time-consuming task of in camera review. These alternatives include allowing agencies to issue general affidavits outlining what materials they were withholding and the reasons for nondisclosure, and accepting Vaughn Indices.[21] A Vaughn Index is a way to itemize and index large agency documents. It essentially subdivides documents into manageable parts that can be cross-referenced with the original document. Using these court-created alternatives, the burden of proof was then placed on the agency to prove the documents it had withheld were properly classified and of a nature as to harm national security.[22] While the "burden of proof" clause seemed to favor plaintiffs, in actuality courts have heard hundreds of Exemption 1 cases and have affirmed the government's decision of nondisclosure in almost every case.[23] Literature Review This literature review examines scholarly discussions on the effectiveness of FOIA Exemption 1 in keeping government records from the public; the role of judicial review in enforcing FOIA; and President Clinton's 1995 Executive Order, which was designed to discourage governmental secrecy and encourage disclosure of agency records.[24] The consensus among FOIA scholars is that FOIA is not facilitating access to government documents and that agencies are still withholding documents that the Act intended to be disclosed.[25] Writing in the Duke Law Review, Amy Rees argued that the CIA, while claiming that even the most innocuous disclosures could compromise sensitive governmental information, almost always succeeded in withholding information while citing national security concerns.[26] This, then, equaled "near-blanket" protection from information disclosure and effectively removed the CIA from FOIA's reach.[27] Rees went on to write that there must be a balance between government secrecy and the people's right to know, and the CIA's near-blanket exemption disrupts that balance. Although there is clearly a limit to the information the public has access to, the sophistication in gathering intelligence and the inherent secrecy involved mean average citizens are incapable of properly defending their rights to the information, she concluded.[28] John Wiklein, in American Journalism Review, cited another government agency, the Federal Bureau of Investigation, for hiding behind Exemption 1. He recalled the case of Terry Anderson, who had been held hostage for six years in Lebanon by Jihad terrorists. After his release, Anderson requested documents from the FBI concerning the terrorists. While the FBI initially denied disclosure to protect the terrorists' privacy, Attorney General Janet Reno realized this claim was making the government look foolish. She instead withheld the information under Exemption 1.[29] Wicklein used this story as an example of why Clinton's 1995 executive order had not effectively helped the FOIA guarantee freedom of information. He then quoted Steven Garfinkel, who oversees compliance with Clinton's classification order: "I was amazed at the culture (of secrecy) in government that was hostile toward the act."[30] Tom Blanton, director of the National Security Archive, agreed that despite FOIA's good intentions, the government was still withholding information. "If our government were a church, it would be named Our Lady of Perpetual Secrets. That's the default setting. Secrecy is what happens if nothing gets done."[31] Robert Gellman, former chief counsel to the House Committee with FOIA oversight, thought this type of rebuke was too strong. "It's fair to criticize the FOIA, but the Act does positive things and it needs to get credit for that. More than 90 percent of FOIA requesters get everything they want. The law works -- fitfully, slowly -- but it works."[32] Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press, echoed Gellman when she claimed that the act created a legal presumption of openness and accountability: "I can't imagine what it would be like if we didn't have that kind of legislative mandate."[33] Still, the decisions judges make once FOIA Exemption 1 cases go to court are, perhaps, the largest impediment to the disclosure of government documents. There seems to be agreement among scholars that judicial review, while created to ensure agencies comply as much as possible with FOIA, has generally failed. One reason, according to Harry Hammitt, editor of Access Reports and a long-time follower of FOIA cases, is that court decisions tended to favor agencies. "The courts always start off their decisions with lip service about the FOIA being a disclosure law and that exemptions should be construed narrowly, then they go ahead and give away the store to the government."[34] Another reason judicial review has failed, and a reason for courts "giving away the store," is judges' perception that they do not have the background or expertise to overrule agencies' arguments for nondisclosure. The Ninth Circuit Court of Appeals commented, "The question of what is desirable in the interest of national defense _ is not the sort of question that courts are designed to deal with."[35] Fifteen years later, in Bowers v. Department of Justice, the Fourth Circuit Court of Appeals stated, "A court should hesitate to substitute its judgment of the sensitivity of the information for that of the agency."[36] Courts were essentially allowing FOIA to be thwarted and agencies to fall back on the "default setting" of secrecy.[37] Similarly, courts are not "effectuat(ing) FOIA's considered balancing of interests," said Rees.[38] Another reason courts deferred so often may be the work involved in deciding these cases.[39] In an article for the World Center, Christy Mumford Jerding wrote about Jim Lesar, a Washington, D.C., lawyer who has argued more than 170 FOIA cases in federal court. According to Lesar, one judge revealed that a reason courts seemed hostile to FOIA cases is that law clerks are not trained to do FOIA cases, so judges had to do them. The judge added that because FOIA Exemption 1 cases were so much work, it was easier to remove them from the books.[40] No matter the reason, Robert Deyling contended that this deference places the FOIA requester at a disadvantage. The weight courts placed on an agency's expertise in national security matters made it virtually impossible for plaintiffs to counter the government's affidavits with arguments that cast doubt or disproved government reasoning for nondisclosure, Deyling said.[41] While giving agencies wide deference, courts have refused to allow requesters discovery, whether agencies submitted general affidavits or Vaughn indices. Similarly, courts had refused the testimony of experts who arguably were in a position to judge the merits of the agency's nondisclosure arguments and the sensitivity of the documents withheld.[42] Both decisions stripped FOIA requesters of their adversarial role, which is necessary for fair dispute reconciliation, Deyling said. The bottom line, said D.C. Circuit Court of Appeals' Judge Patricia Wald, is that judges are not doing their jobs. De novo review, she wrote in the University of Pittsburgh Law Review, "often seems to be done in a perfunctory way. The courts may be approaching too timidly what is, in my view, their clear responsibility to inquire into whether national security claims override traditional _ rights or liberties."[43] Without meaningful judicial review, agencies then were free to withhold all types of information. A telling and, perhaps, ironic example occurred when Lesar put in a request for a copy of a CIA report on the agency's efforts to improve openness in the early 1980s. The request was denied.[44] While the specific reasons for agency nondisclosure vary from case to case, two approaches to withholding documents developed. These two approaches may be used to defend nondisclosure under any FOIA exemption, including Exemption 1. The first was a "Glomar denial."[45] The Glomar denial allows a government agency to neither confirm nor deny the existence of a requested document if the confirmation of the document would harm national security.[46] John Y. Gotanda, writing in the University of Pittsburgh Law Review, claimed that a trend had developed where agencies responded to requests with simple Glomar denials, which made it virtually impossible for requesters to effectively challenge agencies' nondisclosures because they could not determine if the documents in question even existed.[47] Glomar denials also make it more difficult for courts to conduct de novo review of FOIA cases[48] and again thwart the "adversary nature of our legal system's form of dispute resolution," according to Gotanda.[49] Agencies also employed the "mosaic" approach in attempting to withhold documents. This theory holds that some apparently "harmless pieces of information, when assembled together, could reveal a damaging picture."[50] This, of course, allowed agencies to withhold many seemingly risk-free documents under the national security umbrella and essentially forced courts to decide if the documents fit together to form a "mosaic" and what that mosaic would look like. This was another means of placing FOIA requesters at a disadvantage and tipping the balance toward government agencies, Deyling contended.[51] President Clinton's Executive Order was designed to even the scales by putting the burden of proof back on the agencies, creating tougher standards for nondisclosure and theoretically making judicial review easier and more effective.[52] Thus far, reviews of this order are few and fail to evaluate its effect on the FOIA. Most deal with declassification efforts. For example, John Podesta, White House chief of staff, said the government has been able to keep the balance between national security and information disclosure.[53] Citing statistics from 1996 and 1997, Podesta claimed that more than 400 million pages of historically valuable documents (50 percent more than the 16 previous years combined) were declassified.[54] Page Putnam Miller, director of the National Coordinating Committee for the Promotion of History, said that in the first three years since the implementation of President Clinton's Executive Order, federal agencies declassified 593 million pages of historically valuable material.[55] This represents 70 percent of all documents declassified since 1980, Miller said.[56] Conversely, some scholars think President Clinton's order, while impressive on its face, has had no appreciable impact. According to Wicklein, "No one gives freedom of information awards to the Clinton administration. Since he's been in office, he has issued a couple of orders that, if he insisted they be carried out, would make him the most open president in recent history."[57] A former Washington bureau chief at CNN, Bill Headlines, was slightly more direct: "They (the Clinton administration) hate us and make it as difficult as possible for us to get information."[58] Although originally created to ensure most government records are open to the public, FOIA has failed to create a link between government activities and the public, according to many FOIA scholars. Agency's are withholding documents citing Exemption 1 and courts are not providing adequate judicial review to ensure plaintiff's have appropriate adversarial challenge. President Clinton's Executive Order was signed to help reverse this trend and create more openness within governmental agencies, but thus far its effectiveness is undetermined. Research Questions and Methodology Despite the lack of consensus on the effectiveness of Clinton's Executive Order, the order was supposed to open up government, at least in theory. This paper will explore FOIA Exemption 1 court cases since the order's inception in 1995 to determine if government agencies truly are more willing to release their documents and if gaining access to information relating to national security and foreign policy has been made a less arduous task. It will answer the following questions: ωHas placing the burden of proof on agencies to justify withholding records resulted in an increase in court decisions going against agencies? Are agencies cooperative once FOIA Exemption 1 cases go to court? ωIn light of President Clinton's Executive Order reemphasizing the burden of proof required of agencies and creating a more open atmosphere, are judges still deferring to agencies' determinations or are they engaging in rigorous independent review? ωAre plaintiff's allowed to exercise measures, such as calling expert witnesses, that will provide them adequate adversarial challenge? The paper will examine cases in chronological order from 1995 to 1999, since later court cases should theoretically rely on decisions in previous cases. The cases, found in Lexis-Nexis, Media Law Reporter, and in the footnotes of scholarly writings and cases, will all be district or federal appellate court cases because the FOIA is a federal. Each case will be reviewed to determine the court's decision on disclosure, the effectiveness of judicial review, the level of cooperation given by the government agency, and whether the plaintiff was allowed adversarial challenge. While this paper, through the definition of national security, will be concerned with classified documents, the levels of classification will not be discussed because if a document is classified, even at the lowest level, then it is exempt from FOIA. This paper will not explore the criteria courts can use to determine if information was classified correctly. Classification criteria and application to agency documents are broad and complicated topics that, for this paper's purposes, are as easily and effectively reduced to the question of whether judges even attempted to question classification and how successful they were in that regard. More importantly to this paper, in the 14 cases analyzed in the body of this paper, none deals with the classification of the information. A drawback for this paper is not having the agency affidavit or Vaughn indices to analyze.[59] Still, it is possible to understand the nature of the information and specific disputes by reading the cases themselves and the arguments and decisions entered in the record. Finally, this paper will not deal with the costs or time involved in making or fulfilling a FOIA request. First, the initial filing costs are not substantial and do not seem to be a deterrent to requesting documents.[60] Second, there are almost always delays in processing FOIA requests -- many times due to the large number of requests and the few personnel on hand to handle them -- and the delays are spread across all agencies.[61] There is also no conclusive proof that agencies employ delay tactics as a means to withhold government secrets[62] (although this paper does not discount this tactic as being used). Creating a more open government? While President Clinton's Executive Order 12958 - Classified National Security Information - was signed in 1995, the President initially began the process of trying to make government records more accessible to the public two years earlier. On October 4, 1993, President Clinton issued a FOIA memorandum to all heads of departments and agencies within government in which he called for a renewed commitment to the Freedom of Information Act, to its underlying principles of government openness, and to its sound administration.[63] In the memorandum Clinton said, "The Act is a vital part of the participatory system of government (and) I am committed to enhancing its effectiveness in my Administration. The existence of unnecessary bureaucratic hurdles has no place in its implementation."[64] Attached to this memorandum was a memorandum from Attorney General Janet Reno outlining new litigation guidance for the FOIA. Here Reno rescinded the Justice Department's 1981 guideline that required the department to defend agencies' nondisclosure just because there was a "substantial legal base." Instead, "in determining whether or not to defend a nondisclosure decision, we will apply a presumption of disclosure."[65] The foundation was laid, then, for President Clinton's 1995 Executive Order. Here President Clinton declared that "if there is significant doubt about the appropriate level of classification, it shall be classified at the lower level,"[66] thus reversing mandates set by Presidents Reagan and Bush. In addition, the order said that "if there is significant doubt about the need to classify information, it shall not be classified."[67] Finally, President Clinton's Executive Order declared that if information could possibly result in damage to national security, withholding this information must only be done when the original classification authority is able to identify or describe the damage.[68] Theoretically, it is the government's responsibility to disseminate as much information as possible. It is under these guidelines that agencies, and courts through judicial review, are to determine what information could be released to requesters using the FOIA. FOIA Exemption 1 cases since Executive Order 12958 If the first FOIA Exemption 1 case heard by the Ninth Circuit Court of Appeals after President Clinton's Executive Order was signed was an accurate indication, government was finally opening up, at least partially. In Seth Rosenfield v. U.S. Department of Justice, the plaintiff requested documents from the FBI about the Free Speech movement in the 1950s and 1960s. The FBI found 8,432 documents and released 1,795 in their entirety (21 percent).[69] Still, after the District Court for the Northern District of California granted summary judgment to Rosenfield, the Justice Department appealed to the Ninth Circuit Court of Appeals, partially arguing the district court did not defer appropriately to its expertise. Upon review, the appeals court held that the district court was correct in its conclusion that the government did not carry its burden in describing the possible damage done in releasing three of four disputed documents to Rosenfield. After reviewing the Vaughn indices submitted by the Justice Department, the court found that the government "needed to describe the particular withheld document, identify the kind of information found in that document that would expose the confidential sources, or describe the injury to national security that would follow from the disclosure,"[70] which it did not do. Ruling on the fourth document, the court found the agency had made a detailed argument concerning possible national security breaches and allowed the document withheld.[71] Still, the case was significant in that the courts forced the agency to heed President Clinton's Executive Order by identifying and describing the specific damage done to national security before it could withhold documents. Additionally, although they fought Rosenfield in court, the case was significant because even the 21 percent disclosure was in breaking with the tradition of withholding documents. However, in the next eight FOIA Exemption 1 cases heard by federal courts, seven resulted in support for agency nondisclosure.[72] In the remaining case, a district court ruling in favor of the plaintiff was overturned by an appellate court in favor of the government and remanded to the district court.[73] Of the 14 total cases examined, half were decided by summary judgments for the agencies, thus avoiding adequate judicial review and the appropriate level of adversarial challenge from plaintiffs.[74] Perhaps the case that strayed most from Clinton's policy of openness was Woody Voinche v. Federal Bureau of Investigation. Here, the burden of proof was shifted from the agency to the plaintiff and an admittedly weak Vaughn Index was allowed to stand as proof of possible national security harm. After Voinche requested documents about specific FBI wiretaps, the FBI withheld many of these documents, citing five different exemptions, one of which was national security. Accordingly, the agency submitted affidavits to the courts explaining these withholdings before it sent a letter to the plaintiff stating that "any factual assertions contained in the affidavits and other attachments in support of the motion will be accepted by the Court as true unless the plaintiff submits his own affidavit or other documentary evidence contradicting such assertions."[75] This shifted burden of proof from the agency to the plaintiff, a clear violation of the Act. In addition, to prove the agency's affidavits false, the plaintiff needed a Vaughn Index to decipher what was being withheld and why. However, the court admitted that it found "these Vaughn Index entries troubling."[76] The court explained that the "Vaughn Index relating to these documents is vague as to the nature of the documents or information withheld."[77] As a result, Voinche not only was required to prove that the FBI's facts and reasoning were false, but he was forced to use Vaughn indices that were vague and inadequate. Therefore, he was essentially unable to form any sort of viable adversarial challenge. The inadequate Vaughn indices also affected the court's decision. "As a result, the indices relating to classified documents do not provide much help to the Court in reviewing de novo the defendant's decision to withhold the document," the court said.[78] Placing Voinche at a greater disadvantage, the court said that while the Vaughn indices were vague and of little help in its decision, it upheld the indices because the declarations of a special agent on the FBI's behalf were so persuasive and because the FBI did such a thorough job in creating Vaughn indices for its unclassified information.[79] The first reason for upholding the Vaughn index can be described as the "fox watching the henhouse." It seems obvious that the special agent, who represents the FBI, was going to argue for withholding. And he should have been persuasive, at least compared to the plaintiff, because he had access to the information withheld. Essentially what the court said is that, although the Vaughn indices were inadequate, the government's expert witness made up for this. On the second argument, it seems logical that a Vaughn Index for an unclassified document would be more detailed and helpful because the information described is not at the center of the argument and is, by definition, not as critical. The FBI didn't have anything to fear from the unclassified documents or it would have initially classified the documents. To say that because the FBI properly indexed information that was of lesser importance means that it did the best it could with the crucial information is not sound reasoning. The bottom line is that in this case, although Clinton called for agencies to disclose as much information as possible, the FBI, hiding behind weak judicial review, vague and unhelpful Vaughn indices, and an internal expert witness, was able to withhold documents with little adversarial challenge. Adversarial challenge was again denied a plaintiff in David Minier v. CIA. Here, David Minier requested documents on Claude Barnes Capehart, who claimed to have been a part of the John F. Kennedy assassination.[80] Although Capehart died in 1989, the CIA refused to confirm or deny that it ever employed Capehart because to do so, it said, would jeopardize national security and compromise CIA sources and methods.[81] After the CIA submitted a declaration stating such to the court, the court granted summary judgment to the CIA and denied Minier's motion for a Vaughn Index. The court stated that such an index would not aid Minier's ability to contest the applicability of the exemptions.[82] While it's understandable why Minier was not allowed access to Capehart files that were classified and possibly could harm national security, it is not understandable that he was not at least given an opportunity to see the types of documents withheld and a reason for withholding. In essence, he was not given an opportunity to challenge the CIA. This decision came just three months after the D.C. Circuit Court of Appeals held "that the Act also requires an agency in possession of material it considers exempt from FOIA to provide the requester with a description of each document withheld, and an explanation of the reason for the agency's nondisclosure."[83] Minier and Voinche, however, were not alone in their denial of adversarial challenge. Plaintiffs in seven of the 14 cases studied were denied meaningful adversarial challenge, and all seven cases went against the plaintiff. Despite Clinton's desire to open government and his espousing a "presumption of disclosure," agencies are still withholding documents or releasing significantly redacted documents, and the courts are still deferring to the agencies when they do so. In 1996, in Scott Armstrong v. Executive Office of the President, an email message from Oliver North titled "Smoking Gun" was released with everything redacted except the introductory phrase, "At my request."[84] A memorandum was also entirely redacted except for the subject line, which read "FYI."[85] In reviewing these documents, the judge completely relied on the testimony of the government without conducting an in camera review, without allowing expert witnesses to corroborate or dispute government arguments, and without allowing the appellant to provide affidavits or expert witnesses to dispute the court's ruling. The court simply stated that the government's testimony was enough for the court to grant summary judgment for the government without in camera review.[86] In fact, it went as far as to say, "In national security cases, a district court exercises wise discretion when it limits the number of documents it reviews in camera. This has two clear benefits. First, it makes it less likely that sensitive information will be disclosed. Second, if there is an unauthorized disclosure, having reduced the number of people with access to the information makes it easier to pinpoint the source of the leak."[87] This argument, of course, neither assumes a presumption of disclosure nor ensures meaningful judicial review for individuals using FOIA to obtain government documents. In Voinche, the court again expressed its inadequacy and reliance on the government in FOIA Exemption 1 cases when it claimed, "This Court, too, is reluctant to substitute its judgment in place of the agency's 'unique insights' in areas of national defense and foreign relations."[88] Similarly, in Paul Greyshock v. U.S. Coast Guard, the court stated, "We accord 'substantial weight' to the agency's conclusions set forth in its affidavits. We will disregard them only if presented with either contradictions in the record or evidence of bad faith on the part of the agency."[89] In Eduardo J. Frugone v. CIA, Frugone was trying to get the CIA to verify employment to collect benefits he claimed were owed to him.[90] While the Office of Personnel Management had recognized Frugone's employment with the CIA, the CIA based its case on a "Glomar denial" by refusing to confirm or deny that the plaintiff was ever employed by the agency. The court declared, "Mindful that courts have little expertise in either international diplomacy or counterintelligence operations, we are in no position to dismiss the CIA's facially reasonable concerns. Consequently, we cannot treat the statements of the OPM upon which Frugone relies as tantamount to an official statement of the CIA."[91] Here, even when presented with contradicting information from another government agency, the court was unwilling to challenge the CIA's reason for withholding documents. The D.C. Circuit Court of Appeals has shown deference not only to agency documents, but also to an expert witness. In Carl Oglesby v. The Department of the Army, the plaintiff appealed a U.S. District Court for the District of Columbia ruling that relied on an expert witness whom Oglesby claimed was unreliable.[92] He based this assertion on the fact that during a separate and unrelated judicial proceeding, the expert witness submitted an affidavit stating that disclosure of certain information would cause damage to national security. It was later learned that this same information had been released 30 years before she gave her testimony and had caused no national security harm.[93] In response, the D.C. Circuit Court of Appeals ruled that since the expert witness had not made her false predictions with any duplicity or intentional misrepresentation, it was unwilling to discredit her information now. "Without any allegation of bad faith, we are unwilling to assume that an agency employee who withholds information that ultimately turns out to be substantially similar to information that has already been released - in short, an employee who makes a mistake - is forever barred from serving as a reliable affiant in the future," the court said.[94] However, the fact that the expert witness was proved to be unreliable in a similar circumstance directly calls into question her ability to adequately serve as an expert witness. The reliability of the agency expert witness is especially important in light of the fact that Oglesby had no such expert witness of his own with which to refute the agency's expert witness or to disprove the agency's arguments for withholding. Despite courts' deference to agencies and the absence of adversarial challenge in most cases, in the last two years courts seem to be going back to the true meaning of Clinton's Executive Order by ruling for disclosure more regularly. Beginning in April 1998, in Anthony Summers v. Department of Justice, courts have either ruled for disclosure or remanded cases to district courts to rule in favor of the plaintiffs in four of five cases.[95] In Les Weatherhead v. United States of America, a case that is scheduled to be heard by the Supreme Court in December, Leslie R. Weatherhead is a lawyer representing two women extradited from Great Britain to stand trial for conspiracy to murder. He requested a letter from the U.S. government that the British government sent to it and that made reference to his clients.[96] The U.S. government refused to give the letter to Weatherhead, and he took the matter to court. After the U.S. District Court for the Eastern District of Washington ordered the government to disclose the letter, it reversed this decision after a government challenge.[97] After reviewing the case, the Ninth Circuit Court of Appeals order the letter disclosed to Weatherhead. In its decision, the court claimed the government failed to prove that disclosing the letter would harm national security: "Rather, it merely bandied about generalized fears of 'political sensitivity' relating to international extradition. In short, it failed to show that all documents falling within the category of international extraditions could reasonably be expected to result in damage to the national security if released."[98] Unlike previous cases, the courts recognized the need for adversarial challenge and the inherent difficulty a plaintiff experiences when seeking government documents. The court stated, "A plaintiff seeking production of a document under FOIA is handicapped in this endeavor by the fact that only the agency truly knows the content of the withheld material. Effective advocacy is possible only if the requester knows the precise basis for the nondisclosure."[99] Not only was the court cognizant of Weatherhead's right to challenge, it seemed to take its judicial review role seriously. The government's explanation, the court said, lacked the particularity "to afford the requester an opportunity to intelligently advocate release of the withheld documents and to afford the court an opportunity to intelligently judge the contest."[100] Although one judge dissented, citing the court's lack of geopolitical expertise compared to the government's expertise, the court reversed the district court's decision and granted summary judgment to Weatherhead.[101] Although not directly demanding government disclosure, three recent rulings did remand the cases back to district courts after the district courts upheld agencies' refusal to release records. In Summers, the plaintiff sought to compel the release of both official and confidential records of J. Edgar Hoover, a former FBI director. The district court granted summary judgment to the Justice Department but failed to give any sort of explanation for its ruling.[102] Although the court was permitted such latitude under law, the D.C. Circuit Court of Appeals ruled that the D.C. District Court had failed to handle the matter properly. It also remanded the case to the lower court with instructions to provide a more specific argument in order to create a foundation for appellate review.[103] Without explanation from the lower court, the appellate court was concerned with its ability to conduct meaningful judicial review and claimed "the record is not adequate for us to afford proper review to the summary judgment entered."[104] In its decision, the court made reference to disclosure being the primary objective of the FOIA, and said that agencies bear the burden of proof in FOIA cases by adequately describing each withholding and deletion from a document.[105] James Campbell v. U.S. Department of Justice followed the Summers case. Here, scholar James Campbell was denied documents from the FBI concerning James Baldwin, an author and a civil rights leader.[106] The FBI withheld the documents citing Exemption 1, among other exemptions, and the D.C. District Court ruled for the government. The D.C. Circuit Court of Appeals remanded the case to the lower court, stating, "This circuit's FOIA jurisprudence has advanced while the lawsuit has stood relatively still." The court based this judgment on the FBI's nine-year old declaration from a special agent attesting to the sensitivity of the Baldwin files. The court said the declaration was both too old and not specific enough to support the FBI's case.[107] This court also recognized the importance of adversarial challenge and meaningful judicial review when it said, "The statement may justify summary judgment only if it is sufficient 'to afford the FOIA requester a meaningful opportunity to contest, and the district court an adequate foundation to review, the soundness of the withholding.'"[108] Similarly, in Eric Halpern v. FBI, the Second Circuit Court of Appeals spoke of the responsibility of judicial review when it said, "But as discussed earlier, blind deference is precisely what Congress rejected when it amended FOIA in 1974."[109] In this case Eric Halpern, an American history lecturer and expert on unionism in the American meatpacking industry, requested documents pertaining to the government's surveillance of the meatpacking industry between 1933 and 1954. Although the FBI disclosed some documents, it withheld many others, citing national security issues.[110] Like the Summers case, the court ruled the government's arguments for nondisclosure were not strong enough to meet the necessary level of proof and that its affidavits "read much like bureaucratic double-talk."[111] This, the court stated, diminished or eliminated altogether a plaintiff's ability to challenge a governmental agency: "Absent a sufficiently specific explanation from an agency, a court's de novo review is not possible and the adversary process envisioned in FOIA litigation cannot function."[112] The court demanded a detailed Vaughn Index, claiming that only this index can force the government to analyze carefully any material withheld. This enables the trial court to fulfill its duty by ruling on the applicability of the exemption cited, and provides for adversarial challenge by "giving the requester as much information as possible, on the basis of which he can present his case to the trial court, the court said."[113] Like the Summers and Campbell cases before it, the Halpern case overturned the lower court's decision upholding agency nondisclosures and remanded the case to the U.S. District Court for the Western District of New York for stricter enforcement of FOIA guidelines. Conclusion While courts initially seemed to have lost sight of Clinton's intentions for FOIA after he signed the Executive Order in 1995, more recent rulings have favored plaintiffs. In the process, two developments are apparent. One is that agencies still seem to be stonewalling requesters either by refusing to release documents until the last moment or significantly redacting them, despite President Clinton's Executive Order. In Armstrong, the government released requested documents slowly over several years, but many of these were redacted.[114] Only after the appellant challenged these redactions did the government release the documents in full, without a court order. That, of course, leads to the question, "Why didn't the government release the documents sooner?" Similarly, in Greyshock, the appellant requested documents from the Coast Guard, which were initially denied.[115] Only after Greyshock challenged these withholdings did the Coast Guard release segregated portions of a file and declassified other portions of the same file.[116] Again it seems clear that, under Clinton's new philosophy of openness, these documents should have been released upon Greyshock's initial request. The second development is that no common framework or guidelines have been created within which to litigate FOIA disputes. This seems especially true when determining if government agencies provided enough information in their Vaughn indices to warrant withholding documents. Indeed, in Halpern, the court said, "In sum, what constitutes a 'reasonable' level of specificity varies depending on the particular context."[117] So, more than four years after President Clinton signed the Executive Order to make government information more accessible, courts have not even been able to determine a standard to adjudicate FOIA Exemption 1 disputes. One of the main reasons for this is the mandated favoritism that is expected to be shown to agencies. From the beginning, the Conference Report that accompanied the 1974 Freedom of Information Act amendment contained language that tipped the balance to the government's side. "Accordingly, the conferees expect that Federal courts, in making de novo determinations_will accord substantial weight to an agency's affidavit concerning details of the classified status of the disputed record."[118] Compounding this initial deference to government is the fact that judges have rarely allowed plaintiffs to use the testimony of expert witnesses. Using these witnesses is one of the few, and arguably the best, weapons plaintiffs have in breaking through an agency's web of secrecy. Moreover, judges have had the authority to help balance the fairness of FOIA proceedings, but have consistently stated that they are not fully prepared to adequately challenge government arguments about national security. While theoretically the burden falls on government agencies to prove their withholdings will harm national security, the truth is, without strong and consistent judicial review and without adequate adversarial challenge from plaintiffs, there is not much stopping agencies from withholding documents. Certainly, while some courts have initiated tougher standards than others and have effectively forced government to disclose some documents, this occurrence is by no means common. Although Clinton claimed to envision an era of openness with a "presumption of disclosure,"[119] this simply is not happening. Furthermore, it seems clear that placing the burden of proof on agencies does not ensure maximum disclosure. Of the 14 FOIA Exemption 1 cases cited, only two succeeded in forcing agencies to disclose documents, although several more were remanded to lower courts for more strict review. The key reasons for this are that plaintiffs are not typically allowed adequate adversarial challenge and courts are still deferring to agencies and are not engaging in rigorous judicial review. The U.S. government cannot claim a new era of openness until agencies prove to be more cooperative in releasing documents, until judges' decisions are more consistent and tough, and until plaintiffs are given a more adequate form of adversarial challenge. One way to provide the plaintiff with this challenge is to form a nonpartisan committee to review FOIA Exemption 1 cases. The committee should consist completely of nongovernment workers, or at least be split evenly between government and nongovernment employees. Those chosen should possess an intimate understanding of national security issues and knowledge of the workings of various agencies within government. Having met these requirements, they should be given a thorough background check, and, having passed this, should be assigned a top secret security clearance. This nonpartisan committee could then, at a court's initiative and based on a plaintiff's request, review cases by looking more closely at the information being withheld before making a nonbinding decision. Judges could then use the committee's findings in making their decisions and plaintiffs could use the findings if appeals become necessary. Deciding FOIA Exemption 1 cases is not easy. Rulings favorable to the plaintiff could possibly harm national security. Taken to its logical conclusion, such harm could sufficiently harm the nation enough that the life and liberties it now enjoys could end. Conversely, rulings favorable to government agencies effectively keep information out of the hands of individuals while allowing the government to conduct business unchecked by its people. This fosters secrecy and limits the information people need to properly vote and ensure government is not involved in any "pernicious projects."[120] To balance these conflicting interests, each side in a FOIA Exemption 1 dispute should be represented adequately. Government agencies need to be able to state their arguments without compromising national security; plaintiffs need to be able to present an adequate adversarial challenge; and judges need to be prepared to fairly decide these cases. Until this happens, government will never truly be open to the people it governs. [1] Oglesby v. U.S. Dept. of the Army, No. 94-5408, 1996 U.S. App. LEXIS 5326, (D.C. Cir. Mar. 26, 1996). [2] Id. [3] Id. [4] Id. [5] 5 U.S.C.(552(b)(1) (1996). Exemption 1 states that agency's may refuse to disclose records that are "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 properly classified pursuant to such Executive Order." [6] Memorandum from Attorney General Janet Reno, Justice Department, to the Heads of Departments and Agencies (Oct. 4, 1993) (on file at www.usdoj.gov/foia/931004a.html). [7] James Madison in a letter to W.T. Barry, Aug. 4, 1822. Reprinted in 9 Writings of James Madison (Hunt ed., 1910) and quoted in EPA v. Mink, No. 71-909, 1973 U.S. LEXIS 136 (S.Ct. Jan. 22, 1973) at 110-111. [8] Amy E. Rees, Recent Developments Regarding the Freedom of Information Act: A "Prologue to a Farce or Tragedy; Or, Perhaps Both," 44 Duke L.J. 1183 (Apr. 1995), quoting The Federalist No. 84 at 266 (3d ed., Roy P. Fairfield, 1966). [9] Eleanor Randolph, Is the U.S. Keeping Too Many Secrets? Government's Penchant for Classifying Information Has Helped Conspiracy Theories Flourish., Los Angeles Times, May 17, 1997 at 1 national section. [10] Paul McMasters, We are Creating 10,000 Secrets a Day, http://www.freedomforum.org/first/ombudsman.asp> (visited Oct. 16, 1999). [11] Id. [12] John Monta, The Freedom of Information Act, Records Mgmt Q., Apr. 1998, at 46. [13] Paul M. Nick, De Novo Review in Reverse Freedom of Information Act Suits, 50 Ohio State L.J. 1307 (1989), (quoting Kennedy during Senate debate in 1974). [14] Daniel Patrick Moynihan, Secrecy: The American Experience 174 (1998). Moynihan said, "An inevitable conflict remains between the right of access prescribed in the FOIA and the authority of the executive branch to preserve certain secrets." [15] United States v. Progressive, Inc., 467 F. Supp. 990, 995 (W.D.Wis.) dismissed 610 7.2d 819 (7th Cir. 1979). [16] Exec. Order No. 12958 (1995) (visited Sept. 27, 1999). The Executive Order stated that information may not be considered for classification unless it concerns: (a) military plans, weapons systems or operations; (b) foreign government information; (c) intelligence activities (including special activities), intelligence sources or methods, or cryptology; (d) foreign relations or foreign activities of the United States, including confidential sources; (e) scientific, technological, or economic matters relating to the national security; (f) U.S. government programs for safeguarding nuclear materials or facilities; or (g) vulnerabilities or capabilities of systems, installations, projects, or plans relating to the national security. [17] 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. 74 (1992). [18] 5 U.S.C.(552(2)(E) (1996). [19] 5 U.S.C. (552(4)(B) (1996). [20] H.R. Rep. No. 93-876 at 6273 (1974). Report stated, "Two amendments to the Act included in this bill aimed at increasing the authority of the courts to engage in full review of agency action with respect to information classified." See Robert P. Deyling, supra note 18, at 37. Deyling stated that the 1974 amendments authorized judges to use in camera review, inspect classified documents to ensure they were classified properly both procedurally and substantively, and mandated that releasable segments of classified documents are to be released. [21] Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). The D.C. Circuit Court of Appeals created a system of itemizing and indexing large agency documents. The index would correlate statements made in the government's arguments for nondisclosure with actual portions of the documents withheld. This index, which became known as the Vaughn Index, was intended to subdivide documents into manageable parts that could be cross-referenced with the original document. This puts the burden of proof more squarely with the government in the hopes of avoiding the government's general and vague arguments about a document's nondisclosure. [22] 5 U.S.C.(552(4)(B) (1996). [23] See Deyling, supra note 18, at 67. [24] Exec. Order No. 12958, (1995) >http://www.cmcnyls.edu/public/USLaws/ExOrder.html< (visited Oct. 16, 1999). [25] See Randolph, supra note 10, at 1 national section; See Rees, supra note 9, at 1183; John Wicklein, Foiled FOIA, 18 Am. J. Rev. 36 (Apr. 1996); E. Greer, There Goes FOIA, 54 Progressive 16, (Sept. 1990); John Y. Gotanda, Glomar Denials Under FOIA: A Problematic Privilege and a Proposed Alternative Procedure for Review, 56 U. Pitt. L. Rev. 165 (Fall 1994). [26] See Rees, supra note 9, at 1183. [27] Id. at 1183. [28] Id. [29] See Wicklein, supra note 26, at 36. [30] Id. [31] See Randolph, supra note 10, at 1 national section. [32] Paul McMaster, FOIA, It's Always There, 84 The Quill 10 (Oct. 1996). [33] Id. [34] Id. [35] Id. [36] Bowers v. U.S. Dept. of Just., 930 F. 2d 350, 357 (4th Cir. 1991). [37] See Randolph, supra note 10, at 1 national section. [38] See Rees, supra note 9, at 1183. [39] Christy Mumford Jerding, Government agencies remain tight-fisted with information (visited Oct. 17, 1999). [40] Id. [41] See Deyling, supra note 18, at 85. [42] Id. Deyling stated that courts have rejected arguments from senators, former ambassadors, retired government officials, and even an agency employee who classified one of the documents in question. [43] Patricia Wald, Two Unsolved Constitutional Problems, 42 U. Pitt. L.R. 764 (1980). [44] See Jerding, supra note 40. [45] Phillippi v. Cent. Intelligence Agency, No. 80-1940, 1981 U.S. App LEXIS 12010 (D.C. Circuit Court of Appeals, June 25, 1981). The "Glomar denial" derived its name from the Glomar Explorer, a vessel reportedly used by the CIA in an attempt to retrieve a sunken Soviet submarine from the floor of the Pacific Ocean. The CIA, however, refused to confirm or deny that the Glomar Explorer existed because to confirm or deny this would harm national security, the agency claimed. [46] Id. [47] John Y. Gotanda, Glomar Denials Under FOIA: A Problematic Privilege and a Proposed Alternative Procedure of Review, 56 U. Pitt. L. Rev. 165, (Fall 1994). [48] Id. [49] Id. [50] Freedom of Information Act Guide and Privacy Act Overview, Office of Information and Privacy, U.S. Department of Justice, (Sept. 1998), < http://www.USdoj.gov/04foia/index.html> (site visited Oct. 16, 1999). [51] See Deyling, supra note 18, at 85. [52] Exec.Order 12958, supra note 17. [53] Remarks by White House chief of staff John Podesta, On National Freedom of Information Day at the Freedom Forum, Arlington, Va., Mar. 16, 1999. (visited Oct. 17, 1999). [54] Id. [55] Miller, Page Putnam, Encouraging and Discouraging News on Declassification, 5 NCC Wash. Update, Oct. 6, 1999, (available via email at [log in to unmask]). [56] Id. [57] See Wicklein, supra note 26, at 36. [58] Id. [59] Attempts to get this information off the World Wide Web or from federal circuit courthouses proved unsuccessful. [60] 5 U.S.C.(552(4)(A)(iii). [61] James Aucoin, An Act That Isn't Working, Columbia Journalism Review 11, (Jan./Feb. 1998). [62] Mitchell Hartman, Federal Officials Often Ignore FOIA Rules, SPJ Study Finds, 78 The Quill 29, (Nov/Dec. 1990). [63] Memorandum from President Bill Clinton, President of the United States, to the Heads of Departments and Agencies (Oct. 4, 1993) (on file at www.usdoj.gov/foia/93_clntmen..html). Memorandum dated Oct. 4, 1993. [64] Id. [65] See Reno, supra note 7. [66] See Clinton's E.O., supra note 17, at 1.3 ( C ). [67] Id., at 1.2 (4b) [68] Id., at 1.2 (4) [69] Rosenfield v. U.S. Dept. of Just., No. 91-16538, 1995 U.S. App. LEXIS 14431 (9th Cir. June 12, 1995). [70] Id. [71] Id. [72] Badalamenti v. U.S. Dept. of State, No. 92-3171, 1995 U.S. Dist. LEXIS 14569 (U.S. District Court for the District of Kansas Sept. 26, 1995); Minier v. Central Intelligence Agency, No. 95-15475, 1996 U.S. App. LEXIS 16120 (9th Cir. July 8, 1996); Voinche v. Fed. Bureau of Investigation, No. 95-01944, 1996 U.S. Dist. LEXIS 14217 (D.C. Cir. Sept. 24, 1996); Armstrong v. Executive Office of the President, No. 95-5377, 1996 U.S. App. LEXIS 26612 (D.C. Cir. Oct. 11, 1996); Greyshock v. U.S. Coast Guard, No. 96-15266, 1997 U.S. App LEXIS 2114 (9th Cir. Feb. 5, 1997); Savage v. Fed. Bureau of Investigation, No. 96-3440, 1997 U.S. App. LEXIS 25327 (6th Cir. Sept. 15, 1997); Kucernak v. Fed. Bureau of Investigation, No. 96-17143, 1997 U.S. App. LEXIS 30562 (9th Cir. Nov. 4, 1997). For case remanded to lower court, see Oglesby, supra note 2. [73] See Oglesby, supra note 2. [74] See Baldamenti, et. al., supra note 73, excluding Armstrong.; and Frugone v. Central Intelligence Agency, No. 97-5199, 1999 U.S. App. LEXIS 3951 (D.C. Cir. Mar. 12, 1999). [75] See Voinche, supra note 73. [76] Id. [77] Id. [78] Id. [79] Id. [80] See Minier, supra note 73. [81] Id. [82] Id. [83] See Oglesby, supra note 2. [84] See Armstrong, supra note 73. [85] Id. [86] Id. [87] Id. [88] See Voinche, supra note 73. [89] See Greyshock, supra note 73. [90] See Frugone, supra note 75. [91] Id. [92] See Oglesby, supra note 2. [93] Id. [94] Id. [95] Summers v. Dept. of Just., No. 97-5002, 1998 U.S. App. LEXIS 7515 (D.C. Cir. Apr. 17, 1998); Weatherhead v. U.S. of America, No. 96-36260, 1998 U.S. App. LEXIS 24644 (9th Cir. Oct. 6, 1998); Campbell v. U.S. Dept. of Just., No. 97-5269, 1998 U.S. App. LEXIS 32513 (D.C. Cir. Dec. 29, 1998); Halpern v. Fed. Bureau of Investigation, No. 98-6035, 1999 U.S. App. LEXIS 13700 (2nd Cir. June 22, 1999. For court ruling for agency withholding, see Frugone, supra note 75. [96] See Weatherhead, supra note 96. [97] Id. [98] Id. [99] Id. [100] Id. [101] Id. [102] See Summers, supra note 96. [103] Id. [104] Id. [105] Id. [106] See Campbell, supra note 96. [107] Id. [108] Id. [109] See Halpern, supra note 96. [110] Id. [111] Id. [112] Id. [113] Id. [114] See Armstrong, supra note 73. [115] See Greyshock, supra note 73. [116] Id. [117] See Halpern, supra note 96. [118] S. Conf. Rep., No. 93-1200 at 12 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6285, 6290. [119] See Reno, supra note 7. [120] See Rees, supra note 9, at 1183.