Opinion
01 CIV. 2274 (DLC)
November 30, 2001
For Plaintiff: Christina M. Frohock, Sharon L. Nelles, 125 Broad Street, New York, NY.
For Defendant: Neil S. Binder, Assistant United States Attorney, United States Attorney's Office, Southern District of New York, New York, NY.
OPINION AND ORDER
In this action, graduate student Andrew Rubin ("Rubin") seeks the disclosure and expedited processing of records and information regarding two British writers, Stephen Spender and T.S. Eliot, allegedly withheld by defendant the Central Intelligence Agency (the "CIA" or the "Agency") in violation of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. The defendant has moved for summary judgment. For the reasons set forth below, the CIA's motion is granted.
BACKGROUND
The following facts are undisputed. Plaintiff Rubin, a Ph.D. candidate in the Department of English and Comparative Literature at Columbia University, is writing his doctoral dissertation on literary and cultural criticism during the first decades of the Cold War. Part of his project is "an exploration of how methods of criticism were influenced by [the] American ideology of the time." In letters addressed to the Information and Privacy Coordinator at the CIA, dated April 11 and May 12, 2000, Rubin requested "any and all information or records on or about" Stephen Spender and T.S. Eliot, respectively. Stephen Spender and T.S. Eliot were British writers who died in 1995 and 1965, respectively.
In virtually identical letters dated June 28 and June 29, 2000, the CIA denied Rubin's FOIA requests, stating:
The CIA can neither confirm nor deny the existence or nonexistence of any CIA records responsive to your request. The fact of the existence or nonexistence of records containing such information — unless it has been officially acknowledged — would be classified for reasons of national security under Sections 1.5(c) [intelligence sources and methods] and 1.5(d) [foreign relations] of Executive Order 12958. Further, the Director of Central Intelligence has the responsibility and authority to protect such information from unauthorized disclosure in accordance with Subsection 103(c)(6) of the National Security Act of 1947 and Section 6 of the CIA Act of 1949.
Accordingly, your request is denied on the basis of FOIA exemptions (b)(1) and (b)(3). By this action, we are neither confirming nor denying the existence or nonexistence of such records. An explanation of cited FOIA exemptions is enclosed.
Rubin filed administrative appeals of both CIA denials. In his submissions, Rubin noted that he was specifically interested in the involvement of Stephen Spender and T.S. Eliot in the Congress for Cultural Freedom, "a CIA-funded body which promoted anti-communist conferences, periodicals, and events worldwide." Rubin went on to note that "any intelligence operations in which [Spender and/or Eliot] may have been involved likely have been defunct for over a decade." In letters dated October 16, 2000, the Executive Secretary of the Agency Release Panel denied both of Rubin's appeals pursuant to FOIA exemptions (b)(1) and (b)(3).
Both letters contained the following language:
Pursuant to the authority delegated under paragraph 1900.43 of Chapter XIX, Title 32 of the Code of Federal Regulations (C.F.R.), the Information Review Officer has determined that we must neither confirm nor deny the existence or nonexistence of any records. It has been determined that such information, that is, whether or not any responsive records exist, would be classified for reasons of national security under Sections 1.5(c) [intelligence sources and methods] and 1.5(d) [foreign relations] of Executive Order 12958. Further, the fact of the existence or nonexistence of such documents would relate directly to information concerning intelligence sources and methods which the Director of Central Intelligence has the responsibility to protect from unauthorized disclosure in accordance with Subsection 103(c)(6) of the National Security Act of 1947, as amended, and Section 6 of the Central Intelligence Agency Act of 1949, as amended.
(Emphasis supplied).
Rubin now contends that the CIA has improperly withheld the fact of the existence or nonexistence of records responsive to his requests, without offering a sufficient explanation for how the national security would be compromised by the disclosure of "historical information on two deceased poets." In response, the CIA argues that it properly determined that it could neither confirm nor deny the existence of records responsive to Rubin's requests, because such information is exempt from disclosure on the ground of national security and pursuant to a statutory exemption.
DISCUSSION
Federal courts must conduct de novo review of an agency's decision to withhold records requested by a member of the public under the FOIA. See 5 U.S.C. § 552(a)(4)(B); Halpern v. Fed. Bureau of Investigation, 181 F.3d 279, 287 (2d Cir. 1999). In a FOIA case, to prevail on its motion for summary judgment, the CIA "has the burden of showing that . . . any withheld documents fall within an exemption to the FOIA." Carney v. U.S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994). Summary judgment is proper in a FOIA case where affidavits in support thereof give "reasonably detailed explanations why any withheld documents fall within an exemption," id., and show that the withheld information "logically falls within the claimed exemption." Halpern, 181 F.3d at 291 (citation omitted). A governmental agency's affidavits are "accorded a presumption of good faith." Carney, 19 F.3d at 812 (citation omitted). As a result, if the agency's submissions are adequate on their face, discovery relating to the exemptions claimed is unnecessary. To justify any discovery once the agency has satisfied its burden, the plaintiff must either show bad faith on the part of the agency by disputing the agency's affidavits, or show through "some tangible evidence" that the claimed exemption should not apply. Carney, 19 F.3d at 812; see also Grand Central Partnership, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999); Ferguson v. Fed. Bureau of Investigation, 83 F.3d 41, 43 (2d Cir. 1996).
The FOIA expresses a general philosophy favoring public scrutiny of government agencies by providing for broad access to records and other information in the agencies' possession. See Cent. Intelligence Agency v. Sims, 471 U.S. 159, 166 (1984); Halpern, 181 F.3d at 284, 286. Nonetheless, the FOIA provides nine exemptions from its disclosure requirement. Agency information falling within the terms of these exemptions need not be disclosed. Halpern, 181 F.3d at 287. The statutory exemptions are to be construed narrowly, with any doubts resolved in favor of disclosure. Id. The CIA bears the burden of establishing that any exemption from disclosure applies. 5 U.S.C. § 552(a)(4)(B).
In this case, the CIA invokes two FOIA exemptions: (1) the national security exemption, 5 U.S.C. § 552(b)(1) ("exemption 1"), and (2) the statutory exemption, 5 U.S.C. § 552(b)(3) ("exemption 3"). It asserts that the very fact of whether it possesses records responsive to plaintiff's request is exempt from disclosure under exemption 1 because it is classified for reasons of national security pursuant to Executive Order, and under exemption 3 because it could reveal intelligence sources and methods which the Director of Central Intelligence has the statutory responsibility to protect.
Exemption 1, the national security exemption, states that the FOIA's requirement of agency disclosure "does 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 . . . and (B) are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1). The CIA argues that the information sought by the plaintiff is classified pursuant to Executive Order 12,958, which permits "classification" of information relating to, inter alia, intelligence activities, intelligence sources or methods, and foreign relations or foreign activities of the United States. Exec. Order No. 12,958, 60 Fed. Reg. 19,825 (April 17, 1995). Section 1.2 of Executive Order 12,958 states that an agency may classify information that fits into one or more of the Order's categories for classification when the appropriate classification authority "determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to national security." Id. Section 3.7(a) of Executive Order 12,958 further states that "[a]n agency may refuse to confirm or deny the existence or nonexistence of requested information whenever the fact of its existence or nonexistence is itself classified under this order." Id.
To qualify for exclusion under exemption 3, the CIA must show that: "(1) the statute invoked qualifies as an exemption 3 withholding statute, and (2) the materials withheld fall within that statute's scope." A. Michael's Piano, Inc. v. Fed. Trade Comm'n, 18 F.3d 138, 143 (2d Cir. 1994); see also Sims, 471 U.S. at 167. The CIA asserts that 50 U.S.C. § 403-3(c)(6), the codification of the National Security Act of 1947, mandates non-disclosure of the information requested by the plaintiff, because it commands that the Director of Central Intelligence shall "protect intelligence sources and methods from unauthorized disclosure." Section 403-3(c)(6) qualifies as an exemption 3 withholding statute. Sims, 471 U.S. at 167. The statute vests in the Director of Central Intelligence "very broad authority to protect all sources of intelligence information from disclosure." Id. at 168-69.
Until 1993, the statutory provision now contained in 50 U.S.C. § 403-3(c)(6) was codified at 50 U.S.C. § 403(d)(3), the provision construed in Sims. The recodification did not affect the substance nor the relevant language of the statute.
The Agency has submitted a 19 page declaration by Karen I. Dyer ("Dyer Declaration"), Chief of the CIA Public Information Release Division. In brief, the Dyer Declaration explains that "[a]cknowledging that the Agency has information or has no information about these two foreign nationals is itself classified because the answer provides information about the types of people who may be of foreign intelligence interest to the Agency." Dyer notes that Agency intelligence collection may be compromised if sources are not confident that the CIA "can and will do everything in its power to prevent the public disclosure of their cooperation and that their cooperation will remain forever secret." Moreover, the confirmation or denial of Agency possession of records relating to particular foreign nationals may impact U.S. foreign relations negatively. According to Dyer, an "official acknowledgment that the CIA maintains information concerning a covert relationship with a particular foreign national could be construed by that foreign government, whether friend or adversary, as an admission that the CIA has collected intelligence information on or recruited one of its citizens." Dyer notes that this concern is especially salient "where U.S. allies are concerned."
Dyer concludes that to neither confirm nor deny the existence of records responsive to plaintiff's requests is the Agency's inevitable response under the circumstances. To do otherwise would be effectively to disclose the very fact that must be protected in this case — whether the CIA has a current or past covert interest in a specific individual.
The CIA's declaration describes the impact upon intelligence sources and methods that the disclosure of the existence or non-existence of responsive documents could reasonably be expected to have. As such, it provides a "reasonably detailed explanation why any withheld documents fall within [the claimed] exemption[s]." Carney, 19 F.3d at 812. Summary judgment for the Agency is thus appropriate unless plaintiff is able to show bad faith on the part of the Agency or that the claimed exemptions do not apply.
Plaintiff does not make an explicit claim of Agency bad faith, but cites to Hayden v. Nat'l Sec. Agency, 608 F.2d 1381 (D.C. Cir. 1979), for the proposition that an agency's affidavit in response to a FOIA request will not suffice if its explanations are "conclusory, merely reciting statutory standards, or if they are too vague or sweeping." Id. at 1387. Explanations similar to those offered by the CIA in this case have been upheld as sufficient bases for refusing to either confirm or deny the existence of responsive documents to FOIA requests. See, e.g., Frugone v. Cent. Intelligence Agency, 169 F.3d 772, 775 (D.C. Cir. 1999) (appellant sought confirmation that he was once employed by the Agency); Hudson River Sloop Clearwater, Inc. v. Dep't of the Navy, 891 F.2d 414, 421 (2d Cir. 1989) (appellant sought information whether Navy planned to deploy nuclear weapons from ships based in New York Harbor); Miller v. Casey, 730 F.2d 773, 775 (D.C. Cir. 1984) (appellant sought information concerning alleged efforts by the United States to overthrow the Communist government of Albania following World War II). The CIA must have the ability to neither confirm nor deny "so that a pattern of denial does not give rise to an inference that a refusal to confirm is in fact a confirmation." Aranha v. CIA, No. 99 Civ. 8644 (JSM), 2000 WL 1505988, at *1 (S.D.N.Y. Oct. 6, 2000). The Supreme Court has observed that even "the mere explanation of why information must be withheld can convey valuable information to a foreign intelligence agency." Sims, 471 U.S. at 179; see also Doherty v. U.S. Dep't of Justice, 775 F.2d 49, 52 (2d Cir. 1985).
Rubin points out that T.S. Eliot has been dead for three decades and Stephen Spender has been dead for six years, and argues that the existence of responsive documents could not be relevant to current national security concerns. In support, he principally relies on Times Newspapers of Great Britain, Inc. v. Cent. Intelligence Agency, 539 F. Supp. 678 (S.D.N.Y. 1982). In Times Newspapers, the Agency confirmed the existence of documents but withheld them. The Court ordered in camera examination of the withheld documents, noting that "[m]ost of the documents withheld here are over twenty years old." Id. at 683. In this case, however, the CIA has chosen to neither confirm nor deny the existence of responsive documents, and has offered reasonable explanations for why the disclosure of such information could interfere with Agency efforts to collect human intelligence in the present day, including its "compelling interest" in protecting "the appearance of confidentiality so essential to the effective operation of our foreign intelligence service." Sims, 471 U.S. at 175 (citation omitted). Courts have generally rejected the contention that the mere age of intelligence information rules out its exemption. See, e.g., Halpern, 181 F.3d at 294; Maynard v. Cent. Intelligence Agency, 986 F.2d 547, 555 n. 6 (1st Cir. 1993); Fitzgibbon v. Cent. Intelligence Agency, 911 F.2d 755, 763-64 (D.C. Cir. 1990).
Finally, Rubin argues that the CIA is improperly withholding the requested information in light of the fact that information linking the CIA to both Spender and Eliot has already been published. He cites a book by Francis Stoner Saunders, entitled The Cultural Cold War, which chronicles the CIA's covert funding of artists and writers to promote democracy abroad. There is an important distinction between official and unofficial disclosures. See, e.g., Halpern, 181 F.3d at 294; Frugone, 169 F.3d at 774; Fitzgibbon, 911 F.2d at 765; Hudson River, 891 F.2d at 421-22; Afshar v. Dep't of State, 702 F.2d 1125, 1130-1131, 1133 (D.C. Cir. 1983). An unofficial disclosure of a relationship between the CIA and either Spender or Eliot does not constitute a waiver by the Agency of confidentiality, nor does it undermine the legitimacy of the Agency's explanation for choosing to neither confirm nor deny the existence of records responsive to Rubin's request.
CONCLUSION
The information requested by the plaintiff is exempt from FOIA disclosure because the Agency has shown it is reasonably within the scope of exemptions 1 and 3. The defendant's motion for summary judgment is granted. The Clerk of Court shall enter judgment for the defendant and close the case.
SO ORDERED: