CLARIFICATION OF ORDER

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP83B00823R000100080014-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 5
• Document Creation Date: December 9, 2016
• Document Release Date: August 31, 2000
• Sequence Number: 14
• Publication Date: April 14, 1976
• Content Type: COURTFILE

STATINTL
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(N)
Approved Foreean2qq Rojpstvm ,
FOR TnE DISTRICT OFJPEOLUNnlA
*OGC Has Reviewed*
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_Plaintiff )
STATINTL
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v. ) C. A. No. 75-1583
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CENTRAL INTELLIGENCE AGENCY, et al ) F f E E: D
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Defendants. ) APR 1. 4 1976
JAMES F. DAVEY, Cie;'
CLARIFICATION OF ORDER ?
This Court, by Order dated March 17, 1976, granted
defendants' Motion for Summary Judgment and denied plaintiff'
motions for partial summary judgment and to strike certain
portions of affidavits submitted by officials of defendant
Central Intelligence Agency. The plaintiff, On March 25,
1976, moved for clarification of the Court's Order, arguing
that Schwartz v. Internal Revenue Service, 167 U.S.App.D.C.
301, 511 F.2d 1303 (1975), requires, as Rule 52 (a) of the
I Federal Rules of Civil Procedure does not, that upon request
of the plaintiff the Court specify its finding of fact and
conclusions of law in granting summary judgment in cases
arising under the Freedom of Information Act, 5 U.S.C. S552
(1970), as amended, 5 U.S.C. ?552 (Supp. IV 1S74) ("FOIA").
The plaintiff seeks disclosure pursuant
to the FOIA of certain files concerning him compiled by the
?
CIA and withheld from him by that agency. It Is clear from
the record that the files withheld were compiled in the course
fa security investigation of plaintiff conducted to assess
the security risk of offering him a position as a foreign
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intelligence operative in two overseas missions. These
investigations were conducted without plaintiff's I;nowledge
while he was a United States citizen residing in this
country.
? From the files generated by these investigations fifty-
four documents remain at issue, these having been withheld
in whole or in part by the CIA upon the authority of certain
exemptions contained in the FOIA. These documents have
been identified and numbered by defendants in two affidavits
and defendants' justifications for
withholding all or portions of each document are set forth
in letters to plaintiff and in the and Gambino
affidavits, these justifications being carefully correlated
by defendants to the numbering system introduced in the
Wilson affidavits. In the circumstances of this case, the
Court finds defendants' efforts at itemization of documents
and of justifications for nondisclosure adequate under
Vaughn v. Rosen, 157 U.S.App. D.C. 340, 484 F.2d 820 (1973),
cert. den., 415 U.S. 977 (1974).
Of the four exemptions invoked by defendants, namely
5 U.S.C. ?552(b)(1), (1.1)(3), (b)(6) and (b)( ) thereinafter
"(b)(1)," etc.), plaintiff has attacked two, (5)(3) and
(b)(7), as unavailable as a matter of law to defendants.
In regard to the (b)(3) exemption, this Court holds,
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contrary to the position taken by plaintiff, that
U.S.C. ?403 (d).(
),-which provides in relevant part that
"the Director of Central Intelligence shall be responsible
for protecting intelligence sources and methods from
,
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nnauthorized diselw;ure, " properly invoked by the CIA as
authority for nondisclosure under (b)'(3) of the FOIA. Sec
FAA Administrator v. Robertson, 422 U.S. 225 (1975);
Phillippi v. CIA, Civil Action No. 75-1265 (D.D.C. December 1,
1975) ,appeal docketed, No. 76-1004, D. C. Cir., December 3,
1975; Richardson v. Spahr, Civil Action No. 75-297 (W.D. Pa.
January 30, 1976); S. Rep. No. 93-854, 93d Cong., 2d Sess.
at 16 (1974).
With regard to the (b)(7) exemption the Court finds
unpersuasive plaintiff's arguments that files generated by
the CIA in a domestic security investigation of a potential
? employee do not come within the exemption for "investigatory
records compiled for law enforcement purposes." Subsection
(b) (7) Itself recognizes that a "lawful national security
intelligence investigation" may give rise to records lawfully
withheld from disclosure. Moreover, the legislative history
c' the 1974 amendments to subsection (b)(7) of the FOIA clear?
indicates Congress' intention to exempt the investigatory ?
records of "background security investigations." S.Rep.
No. 93-1200, 93d Cong., 2d Sess. at 13 (1974). See also
Koch V. Department of Justice, 376 F.Supp. 313,115(D:D.1974)
That the plaintiff was unaware of the investigation of him,
that he had not applied for CIA employment, or that he was
investigated by the CIA within national borders are all facts
which do not, in this Court's opinion, change the legality
of the investigation, and hence the secret status of the
files generated by the investigation.
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These determinations as to the law dispose of the
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greater part; of. plaintiff's :argument. Plaintiff has actively
argued only in the case of the (h)(1) exemption (applying
to documents classified under ExecutiN/e Order) that a genuine
issue of material fact prevents summary judgment. Plaintiff
feels that in camera inspection of documents numbered 41_to
45 for which (b)(1) is invoked is required to determine
defendants' proper compliance with Executive Order
No. 11,652,. and-that the docuMents-are properly classified.
The Court finds, however, that as to not only (b)(1)
but also the other three exemptions asserted by defendants,
and as to all documents remaining undisclosed in whole or
in part, that defendants have sustained their burden of
demonstrating that as a matter of fact the withheld
information is exempt under the asserted exemptions of the
FOUL The defendants' submitted affidavits and letters to
.
plaintiff in justification of the nondisclosures, together
with an examination of those potions of documents which were
disclosed, obviate any necessity for in camera inspection of
any documents.
In the case of defendants'-(b)(1) claims the affidavits
clearly show, without in camera
inspection, that the documents in question were properly
classified under Executive Order No. 11,652. See Alfred A.
nc . Colby, 509 F.2d 1362 (4th Cir.), cert. den.
421 U.S. 992 (1975). In the case of two documents numbered
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44 and 46, defendants have withheld disclosure of the names
of individuals on the ground of exemption (b)(6). Plaintiff
sought summary judgment as to these documents arguing that
any interest in avoiding invasion of privacy resulting from
the disclosure of mere names is outweighed by plaintiff's
interest in disclosure. This Court, however, in examining
the portions of the documents which were disclosed, is con-
vinced that defendants properly invoke the exemption.
In view of the foregoing, and in view of the fact that
defendants' affidavits, partial disclosures, and explanations
given in letters to plaintiff, have adequately indexed,
identified and described to the Court the various nondis-
closures, and also have satisfied the Court without any need
for in camera inspection of the propriety under the claimed
FOIA exemptions of those nondielosures, there appears to be
no need for the Court further to detail the sr;ccific items
withheld and the exemption cited to sustain each. In the
circumstances of this case it appears to this Court that.
the spirit, if not the letter, of Schwartz v. Internal Revenue
Service, supra, has no application
In any event, in the view of the Court, th:_, foregoing
Clarification of Order satisfies any legitimate claim of
plaintiff under the Schwartz decision .::. d removes any obstacl
plaintiff might otherwise encounter in prosecuting his appeal.
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