IMPACT OF SIMS DECISION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP84-00933R000400130009-7
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 25
• Document Creation Date: December 15, 2016
• Document Release Date: October 24, 2003
• Sequence Number: 9
• Publication Date: February 3, 1981
• Content Type: MF

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MEMORANDUM FOR: General Counsel
ODP-81-157
3 FEB 1981
O
FROM: Bruce T. Johnson
Director of Data Processing
SUBJECT: Impact of SIMS Decision
REFERENCE: Memo from C/IPD/OIS/DDA, dated 31 Dec 1984,
same subject
The Office of Data Processing maintains no contacts
with non-governmental personnel or organizations whose
identities should not be disclosed under the FOIA.
i.S'o ark
/s/cruse,
Bruce T. Johnson
cc: C/IPD/OIS/DDA
O/D/ODP
Original - Addresse
2 - O/D/ODP
2 - ODP Registry
3 Feb. 81
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31DEC1980
MEMORANDUM FOR: See Distribution
STAT FROM:
Chief, Information and Privacy Division, OIS
SUBJECT: Impact of Sims Decision
1. A meeting was held in OGC on 22 December 1980 to discuss measures
that should be taken to ensure the confidentiality of relationships between
the CIA and its "sources" in light of the opinion of the U.S. Court of
Appeals for the District of Columbia Circuit in the case of John Cary Sims
et al. v. Central Intelligence Agency et al. A copy of this opinion is
attached, along with a memo from OGC to the NFAC/FOIO on the same subject.
2. Consideration is being given to promulgating an Agencywide notice,
but, before taking such a step, it would be helpful to have a comprehensive
list of the various categories of Agency contacts requiring protection
whose identities might be difficult to deny under exemption (b)(3) in view
of the narrowly construed definition of "source" provided in the Sims
decision.
3. OGC is of the opinion that there should be no problem with respect
ontractors. OGC also believes inorman-
would be adequately protected un er the current procedures, whereby they
are routinely asked whether they wish to have their identities protected.
u. If your component maintains contacts with nongovernmental per-
sonnel or organizations whose identities should not be disclosed under the
FOIA, and it is uncertain whether the courts would regard them as legiti-
mate intelligence sources, please describe the nature of these contacts in
a memorandum to OGC, to the attention of IPD would appre-
ciate receiving an information copy of any such memoranda.
Attachments: a/s
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Y
ADMINISTRATIVE. INTERNAL DSE ONU
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OGC 80-09258
18 November 1980
MEMORANDUM FOR: Freedom of Information Officer, NFAC
STAT FROM
Office of General Counsel
Sources of Information or Analysis :
Impact of John Cary Sims v. Central
Intelligence Agency on NFAC Analysts'
Contacts with Academics and Other Human
1. As you know, on 29 September 1980, the United
States Court of Appeals for the District of Columbia Circuit
decided Sims v. Central Intelligence Agency, a Freedom of
Information -Act case. The decision contains a new definition
of "intelligence source," which indicates that NFAC analysts
should elicit certain statements from academic or other
.human source contacts to try to ensure protection of their
identities from exposure in any FOIA litigation which might
arise. The case also affects what NFAC analysts may tell
..contacts about how protectable from disclosure their identities
are. 'While the Appeals Court's decision is binding authority
only upon lower federal courts in its Circuit, federal
district courts elsewhere are apt to follow Sims as at least
persuasive authority.-
2. Under the FOIA, this Agency need 'not disclose to a
requester any portions of files or records that would reveal
intelligence sources or methods. According to Sims, "an
'intelligence source' is a person or institution that provides,
has provided, or has been engaged to provide the CIA with
information of a kind the Agency needs to perform its intelli-
gence function effectively, yet could not reasonably expect
to obtain without guaranteeing the confidentiality of those
who provide it." [Emphasis added.]
3. From the legal and evidentiary standpoint, the best
method for safeguarding identities thus is to elicit where
possible from the academic contact or researcher a signed,
written statement that he or she is supplying analysis or
information only upon the express understanding and condition
that the NFAC analyst and this Agency. have promised to keep
his or her identity confidential and in the expectation that
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his or her privacy will be respected. If operational, security,
or other considerations make it impossible to obtain such a
written statement, then the NFAC analyst should elicit a
substantively identical oral statement from the contact, and
draft and sign a contemporaneous memorandum recording the
substance, date, and time of the statement and indicating
explicitly that statement and memorandum were made at essen-
tially the same juncture. Although obtaining a written
statement signed by the contact would be legally preferable,
this Office believes that preparation of such a memorandum
would also probably satisfy Sims. in either event, the
elicited statement should be made a matter of record in NFAC
If the analyst is already engaged in an ongoing
relationship with a contact, he or she should obtain a
similar statement with respect to any further information or
analysis to be provided in the future.. It might also be
helpful to obtain a statement that the relationship has
proceeded from the outset on such a confidential footing --
although whether this would have the desired legal effecti s
not certain.
If the relationship with the academic is on a
formal contractual basis, the contract used should contain a
clause promising that confidentiality will be protected.
4. Elementary fairness requires that the analyst tell
his or her contacts that this Agency cannot absolute
guarantee utterly unassailable confidentiality, because the
law is not precisely settled. Sims indicates very, very
strongly that the approaches advocated in paragraph 3 would-
suffice to immunize identities against FOIA disclosure, but
the case does not-explicitly and directly so hold in so many
words.
5. This Office recommends that NFAC develop and adopt
systematic procedures for eliciting, recording and filing the
written or oral contact statements described above, rather
than simply distributing this memorandum to the NFAC analysts
themselves-and allowing each to interpret and implement it
according to his or her own individual lights.
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3i.tttttri O#utru t!uurt of Apiruhi
Nos. 79-2203 & 79-2554
Appeals from the United States District Court
for the District of Columbia
(D.C. Civil Action No. 78-2251)
Argued May 28, 1980
Notices This opinion is subject to formal revision before publication
in the Federal Reporter or U.S.App.D.C. Reports. Users are requested
to notify the Clerk of any formal errors in order that corrections may be
made before the bound volumes go to press.
FOR THE .DISTRICT OF COLUMBIA CIRCUIT
JOHN CARY SIMS et at.
V.
CENTRAL INTELLIGENCE AGENCY et al., APPELLANTS
Decided September 29, 1980
Michael Kimmel, Attorney, Department of Justice,
with whom Alice Daniel, Assistant Attorney General,
Charlec F. C. Ruff, United States Attorney, and Robert
F. Kopp, Attorney, Department of Justice, were on the
brief, for appellants.
Bills of costs must be filed within 14 days after entry of judgment. The
court looks with disfavor upon motions to file bills of costs out of time.
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!Paid :ilau Levy, with whom David C. Vladeck and
:Alan B. illq,rrisun were on the brief, for appellees.
lic(ure WUIGIIT, Chief Judge, MIKVA, Circuit Judge,
and AIAui< y,' Chief Judge, United States Court of Cus-
tunis and Patent Appeals.
Opinion for the court filed by Chief Judge WRIGHT.
Opinion dissenting in part filed by Chief Judge
MAUKEY.
WRIGWT, Chief Judge: This appeal presents two issues
concerning the obligations of the Central Intelligence
Agency (CIA) under the Freedom of Information Act
(FOIA).' In response to a citizen request for the names
of persons and institutions who conducted scientific and
behavioral research under contracts with or funded by
the CIA, the Agency asserts two statutory exemptions
from the disclosure requirements' of the FOIA. Invoking
Exemption 3,2. the Agency claims that the requested ma-
terial is "specifically exempted from disclosure" by the
terms of the. National Security Act.' The Agency also
? Sitting by designation pursuant to 28 U.S.C. ? 293(a)
(1976).
15 U.S.C.? 552 (1976).
25 U.S.C. ? 552 (b) (3) (1976). Exemption 3 authorizes
withholding of documents that concern matters "specifically
exempted by statute" from the disclosure requirements of
the FOIA. See text at note 30 infra (quoting provision in
full).
' National Security Act of 1947, ch. 343, 61 STAT. 496
(1947) (codified in scattered sections of 5 & 50 U.S.C.). The
Agency relies on ? 102(d) (3) of the Act, 50 U.S.C. ?403(d)
(3) (1976), which authorizes the Director of Central Intel-
ligence to protect "intelligence sources and methods from un-
authorized disclosure[.]" The CIA argues that the persons
and institutions who conducted the research involved in this
case are "intelligence sources" within the meaning of the
statute.
cites Exemption 6, which shields "personnel and medical
files and similar files the disclosure of which would con-
stitute a clearly unwarranted invasion of personal pri-
vacy[.]" I The District Court denied the applicability of
either exemption to the facts in issue and granted sum-
mary judgment to the appellees who requested the docu-
ments.0 In reviewing the District Court's analysis of the
j,-sue presented under Exemption 3, we are unable to
conclude that the court reached its decision through ap-
plication of the proper legal standard. We therefore ~^
mand the case for additional proceedings. With reg
to Exemption 6, the decision of the District Court is
affirmed, although, as explained below, we differ with the
court's analysis of the issue presented.
1. FACTS AND PROCEDURAL BACKGROUND
A. Facts
Between 1953 and ' 1966 the CIA sponsored extensive
research concerning "chemical, biological, and radiologi-
cal materials capable of employment in clandestine
operations to control human behavior."' Code-named
MKULTRA, the CIA's research program included 149
subprojects undertaken on a contract basis. CIA records
document the participation of at least 80 institutions arr
185 researchers.' Because the CIA funded MKULT1 .
largely through a front organization, many of the par-
4 5 U.S.C. ? 552(b) (6) (1976).
6 The opinion of the District Court, as amended August 13,
1979, is reported at 479 F.Supp. 84 (D. D.C. 1979).
'Final Report of the Select Committee to Study Govern-
mental Operations with Respect to Intelligence Activities, S.
Rep. No. 94-755, 94th Cong., 2d Sags., Book I at 389 (197G)
(footnote omitted) (hereinafter cited as "Church Committee
Final Report").
I Brief for appellants at 10.
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ticipating individuals and institutions apparently had no
knowledge of their involvement with the Agency.a
On the basis of available documents, it appears that
the CIA originally conceived MKULTRA as a defensive
response to possible use by the Soviets and the Chinese
of chemical and biological agents as instruments of in-
terrogation and brainwashing.' Later, however, the
agency expanded the scope of the program to include
efforts to develop chemical and biological agents for use
by the CIA. At least some of the subprojects tested
chemical and biological substances by administering them
to human subjects. Some of the subjects volunteered for
their experimental role. Others were unwitting partici-
pants, who may never have known what happened to
them. At least two persons died as the result of
MKULTRA experiments. The extent of possible damage
to the health of others remains unknown, becauso CIA
records fall to disclose the identities of all experimental
subjects.
The abuses associated with MKULTRA achieved broad
publicity as a result of investigations and published re-
ports by an executive commission chaired by Vice Presi-
dent Nelson Rockefeller 1? and a congressional committee
s Brief for appellants at 10.
' For an account of MKULTRA research and abuses, see
generally Church Committee Final Report, supra note 6, at
385-422, 471-472, reprinted in Addendum to Brief for Appel-
lant at 12-51; Joint Hearings Before the Senate Committee
on Intelligence and the Subcommittee on Health and Scien-
tific Research of the Senate Committee on Human Resources,
"Project MKULTRA, The CIA's Program of Research in
Behavioral Modification," 95th Cong., 1st Sens. (Aug. 3,
1977) (hereinafter cited as "Joint Hearings") ; Report to
the President by the Commission on CIA Activities Within
the United States 226-228 (1975) (hereinafter cited as
"Rockefeller Commission Report").
10 The Rockefeller Commission Report, supra note 9, was
completed in 1975.
led by Senator Frank Church." Nonetheless, the details
of the project's history remain mysterious. At the direc-
tion of then Director Richard Helms, the CIA destroyed
most of its substantive records pertaining to the project
in 1973. Investigative efforts therefore depended largely
on oral testimony. In 1977, however, the Agency located
some 8,000 pages of previously undisclosed documents
related to the project." Consisting mostly of fiscal and
financial records, the new material had escaped the search
of the archivists who conducted the earlier purge. ''
addition to general descriptions of 149 subprojects, . ,
new documents contained the names of persons and in-
stitutions who had contracted to undertake research.
Upon discovery of the project data, CIA Director
Stansfield Turner notified the Senate Select Committee
on Intelligence, and he testified at a joint hearing of the
Select Committee on Intelligence and the Subcommittee
on Health and Scientific Research of the Senate Com-
mittee on Human Resources. The CIA subsequently pro-
vided the Joint Committee first with summary reports
and then with copies of the documents themselves. Al-
though the CIA's records listed participating researchers
and institutions, Admiral Turner requested that the Com-
mittee treat the names as confidential. The Committee
has honored this request.
,,,
11 The Church Committee Final Report, supra note 6, was
compiled prior to the discovery by the CIA of the documents
that are the subject of the present FOIA request. Those docu-
ments were, however, made available to the Joint Senate
Committee comprised of the Senate Select Committee on
Intelligence and the Subcommittee on Health and Scientific
Research of the Senate Committee on Human Resources. See
Joint Hearings, supra note 9.
12 Brief for appellants at 12.
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B,. F01A Request and Litigation
In a letter dated August 22, 1977, following the con-
clusion of congressional hearings, John C. Sims and Dr.
Sidney M. Wolfe-respectively an attorney and a phy-
sician employed by the Nader group Public Citizen-
filed a request under the Freedom of Information Act for
a list of the names of institutions and researchers who
had conducted research under the MKIII4TI(A. program,
as revealed in any existing MKULTRA documents." Ac-
cording to submissions filed with the court by the CIA,
the documents within the scope of the appellees' re-
quest contain a total of 265 names: the names of 80
institutions and 185 individual researchers. Upon re-
ceipt of the document request, the CIA contacted each
of the 80 institutions to ask if they would consent to
disclosure of their identities. The Agency made no
parallel effort to communicate with the individual re-
searchers. Of the 80 institutions, 59 agreed to disclos-
ure. Their names were revealed to appellees on June 13,
1978. The Agency has also permitted appellees to ex-
amine the surviving financial records for the MKULTRA
subprojects undertaken by the other persons and institu-
tions, but with their names deleted. In other words, the
CIA continues to withhold the names of the 21 research
institutions that declined to authorize release of their
identities as well as the names of all of the 185 in-
dividual researchers listed in MKULTRA files. Dissatis-
fied with the extent of the Information provided to them,
"Although the FOIA Imposes no burden of justification,
appellees Stets and Wolfe have argued that only by Identi-
fying and approaching Individual researchers would it be pos-
sible to discover information of groat public interest: the
scope of MKULTRA experim ntation, the substantive find-
ings of the research, the aide effects of various drugs, and
the identities of expcrbne-tai subjects, Brief for appellees
at 26.28.
7
appellees brought this FOIA action on November 30,
1978.
In a memorandum opinion dated April 12, 197914 the
District Court held that the institutions and researchers
did not, as asserted by the CIA. qualify for withholding
under Exemption 3 because they did not constitute "in-
telligence sources" within the meaning of 50 U.S.C. ? 403
(d) (3). With regard to the Exemption 6 argument, the
court requested that the parties submit supplemental
memoranda on the relevance of possible express or
plied promises by the CIA to maintain the confidentia'ty
of the researchers whose work it had funded." The
court also asked the CIA to draft letters to the re-
searchers and institutions soliciting their understandings
of Agency obligations to maintain secrecy." On May 14,
1979 the CIA submitted a further memorandum, an
affidavit by Admiral Turner," and a draft of a form
letter suitable for mailing to individual researchers. But
the Agency declined to assert reliance on a contract theory
as its basis for withholding, and it reargued its position
that the involved institutions and researchers should be
considered "intelligence sources" as a matter of law. In
an opinion of August 7, 1979 Judge Oberdorfer rejected
both defenses.'S The court adhered to its prior holding
that the institutions and researchers did not consti
"intelligence sources" because the Agency had not sh k .
that "its decision to treat the MK-ULTRA institutions
and researchers as `intelligence sources' under ? 403 (d)
(3) is not an overbroad application of the term, too sus-
' opinion is printed in the Appendix (App.) at 81-85.
"App. 84.
18 Id.
IT Reprinted in App, at 88-97.
"Sims v. CIA, 479 F.Supp. 84 (D. D.C. 1979) (as amended
Aug. 13, 1979).
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ceptible to administrative discretion to pass muster under
[FOIA Exemption] (b) (3)."" Regarding Exemption 6,
the court determined that it could not accept the position
of the Agency without additional information as to
whether "any researcher had any reasonable expectation
that his or her participation would be anonymous, as to
whether any researcher has any other privacy interests
which might be compromsied by disclosure * * * or
whether any researcher has any other objection or rea-
son for objection to disclosure of his or her name." "
Judge Oberdorfer again invited the CIA to communicate
with the individual researchers and apprise the court of
their responses by October 1, 1979. The court also gave
the Agency additional time to reconsider its decision not
to rely on Exemption 1 to the FOIA, which authorizes
withholding of documents that are properly classified in
order to protect national security interests in defense or
foreign policy.21 The CIA chose not to pursue the sug-
Id. at 87.
20 Id. at 89.
Exemption 1, 5 U.S.C. ? 552(b) (1) (1976). immunizes
from compulsory disclosure 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 (B) are in fact
.properly classified pursuant to such Executive order[.]
Executive Order 12065, 43 FED. REC. 28949 (July 3, 1978),
currently permits classification of information within three
categories:
1-102. "Top Secret" shall be applied only to informa-
tion, the unauthorized disclosure of which reasonably
could be expected to cause exceptionally grave damage
to the national security.
1-103. "Secret" shall be applied only to information,
the unauthorized disclosure of which reasonably could
be expected to cause serious damage to the national se-
curity.
1-104. "Confidential" shall be applied to information,
the unauthorized disclosure of which reasonably could
gestions of the District Court. The Agency adhered to
its view that its Exemption 6 claim required no com?
munication with the individual researchers, and it filed no
papers asserting that the names in issue could properly
be classified to protect the national' security under Ex-
emption 1.0 A final judgment ordering disclosure of the
researchers' uamee was entered on November 30, 1979.='
This appeal ensued.
be expected to cause identilt*ble damn to the national
security. i 11
Id. at 28950, ?? 1-102-1-104. The court's invitation to tic
CIA to cite Exemption 1 could scarcely have been more ex-
plicit:
The Court also notes that the policy objectives which
concern the Director might very well be accommodated
by classifying the lists of names of institutions and re-
searchers pursuant to Executive Order 12065, so that
the lists would be exempt from disclosure by 5 U.S.C.
?552(b)(1). In fact, the lists were once so classified,
but the defendant has since elected to declassify them so
that they are not now exempt under (b) (1). Nothing in
the Court's ruling that (b) (3) is inapplicable to the lists
here at issue is intended to foreclose (or approve) new
classification of the lists and resort to section (b) (1)
in order to protect any commitment to anonymity made
by defendants to any institution or researchers. The ef-
fective date of the accompanying order has been set
forward to October 1, 1979 in order to permit the
fendant to reexamine and act on the possibility of cl
sifying the names of institutions and researchers which
would otherwise be disclosable and to amend the motion
and opposition to invoke (b) (1), if it should elect to do
80.
Sims v. CIA, supra note 18, 479 F.Supp. at 88 (footnote
omitted).
22 Defendant's Response to Plaintiffs' Motion for Issuance
of a Final Order, App. at 113, 114-115 (Nov. 27, 197.9).
23 Reprinted in App. at 117.
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II. FREEDOM OF INFORMATION ACT
The Freedom of Information Act, under which this
case arises, prescribes with unmistakable clarity the role
of the courts in evaluating agency claims of exemption.
The basic policy of the Act is to compel disclosure. The
burden is always on the agency to support any claim of
a right to withhold, b U.S.G. ? 552(a) (3) (1976), and
the courts are authorized to undertake do navo review
of agency constructions of applicable statutes and of
agency determinations that particular records fall with-
in exemption classifications. Id a4
In weighing claims asserted by an agency as intimately
connected with national security as the CIA, courts may
feel a natural disposition to proceed with some deference.
Even in this delicate context, however, Congress has
indicated that the basic FOIA policy of maximum dis-
closure must be enforced in appropriate cases by the
courts.25
Two amendments to the Freedom of Information Act,
both adopted in response to deferential decisions by the
Supreme Court, clearly signal congressional intent con-
cerning the judicial role. The first amendment responded
to EPA v. Mink, 410 U.S. 73, 81-84 (1973), in which the
24 Courts were given authority to review de nova any denial
of access "in order that the ultimate decision as to the pro-
priety of the agency's action is made by the court and [to]
prevent [review] from becoming meaningless judicial sanc-
tioning of agency discretion." S. Rep. No. 813, 89th Cong.,
1st Sess. 8 (1965).
25 Congress specifically addressed this issue when it over-
rode President Ford's veto to pass the 1974 Amendment au-
thorizing de novo review of agency classification decisions in
national security cases. The legislative history of this provi-
sion, which became 5 U.S.C. ? 552(b) (1), is extensively re-
hearsed in Ray v. Turner, 587 F.2d 1187, 1206-1214 (D.C. Cir.
1978) (Wright, C.J., concurring).
Court affirmed nondisclosure under Exemption 1, the
"national security" exemption to the FOIA, solely on the
basis of an agency affidavit. Exemption 1 then covered
matters "specifically required by Executive order to be.
kept secret in the interest of the national defense or
foreign policy," *4 and the Court construed the provision
as withholding judicial authority to test the propriety of
executive classifications. Within two years Congress re-
versed Mink by legislation. As modified, Exemption 1
now requires that, in order to qualify for the exemption,
information must "in fact [be] properly classified
suant to ' * * Executive order." r Its terms thus --
mand judicial determination of the relation of various
documents to the national security and, accordingly, re-
view of agency records in order for courts to determine
the propriety of classification.'
Congress moved similarly to nullify the decision ren-
dered by the Supreme Court in FAA Administrator v.
Robertson, 422 U.S. 255 (1975). Exemption 3 originally
applied to any "matters specifically exempted from dis-
closure by statute." 29 After the Robertson Court held
that this language encompassed a statute granting broad
agency discretion- to determine whether information
should be withheld, Congress, concerned that the Court's
construction threatened the purposes of the FOIA, quickly
amended the Act. Exemption 3 now authorizes non
closure of matters "specifically exempted from disclos l-
by statute" only where the exempting provision either
"(A) requires that the matters be withheld from the
public in such a manner as to leave no discretion on the
issue, or (B) establishes particular criteria for with-
2G r, U.S.C. ? 552(b,` (1) (1970).
27 5 U.S.C. ? 552 (b) (1) (1976).
28 5 U.S.C. ? 552(a)
(4) (B) (1976).
29 5 U.S.C. ? 552(b)
(3) (1970).
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holding or refers to particular types of matters to be
withheld [.]11 "
In the case at bar the CIA rests its claim of a right to
withhold, as it must, on specific exemptions provided by
I the FOIA. The CIA is not exempt from the FOIA. Con-
gress has determined that the requirements of national
security are satisfied by the specific structure of exemp-
tions created by statute.
Within the statutory framework the CIA is entitled
to rely on any or all of the nine FOIA exemptions. In
previous cases brought before this court the Agency has
relied most frequently on Exemption 1, pertaining to mat-
ters classified in order to protect the national security."
But the CIA. Is not limited to that oxomption, or roquired
to invoke it in a particular case. It has chosen not to
invoke it in this one.
Denial of protection claimed for documents under one
exemption does not, of course, mean that the same or
similar material would not be exempt from disclosure i.
another exemption were invoked and its procedures prop-
erly satisfied. But the burden is always on the agency to
justify nondisclosure under the terms of the specific ex-
emption or exemptions that it claims. In this case the
CIA has based its claim on two exemptions from among
the nine: the Exemption 3 exception for matters specifi-
cally protected by statute and the Exemption 6 shield for
personnel and similar files.
III. EXEMPTION 3
A. Issue Presented
This court has held consistently that Section 102(d) (3)
of the National Security Act of 1947, 50 U.S.C. ? 403
20 5 U.S.C. ? 552(b) (3) (1976).
u See, e.g., Ray v. Turner, supra note 25; Phillippi v. CIA,
546 F.2d 1109 (D.C. Cir. 1976).
(d) (3) (1976), which authorizes the Director of Central
Intelligence to protect "intelligence sources and methods"
from unauthorized disclosure, "establishes particular cri-
teria for withholding or refers to particular types of
matters to be withheld" and thus qualifies as a withhold-
ing statute under Exemption 3. E.g., Goland v. CIA,
607 F.2d 839, 360 (D.C. Cir. 1978), cert. denied,
. U.S. , 48 U.S. L. WEEK 3602 (March 17, 1980) ;
Marks v. CIA, 590 F.2d 997 (D.C. Cir. 1978). Our
Section 403(d) (3) cases have mostly involved questions
of the degree of factual specificity a CIA affidavit m
attain in order to enable a court to determine that p _
ticular documents come within its terms. E.g., Goland v.
014, aupra, 607 P.2d at 361; lay *, 7'u r, 587 1r.2d
1187, I19G-1197 (D.C. Cir. 1978). Other cases have con-
sidered the conditions under which a court should under-
take de novo review of the accuracy of facts alleged in a
CIA affidavit claiming a right to withhold under Exemp-
tion 3. E.g., Ray v. Turner, supra, 387 F.2d at 1194-
1195; Weissman v. ' CIA, 565 F.2d 692 (D.C. Cir. 1977).
Never, however, have we undertaken expressly to con-
strue the term "intelligence sources and methods." We
have simply assumed the phrase to have a plain meaning.
The question of statutory construction presented by this
case is therefore one of first impression, in which there
is little precedent to guide us. We must determine, or
provide guidelines for determining, whether the researe
ers and institutions whose names the CIA seeks to wih -
hold constitute "intelligence sources" within the mean:
of Section 403(d) (3).3:
Although we have never before been asked to construe
this term, our cases make clear the guidelines within
which construction of exempting statutes under Exesnp.
a= The Agency makes no claim that any of the information
here in issue must be withheld in order to protect intelligence
"methods."
 ? 14 Approved For Release 2003/12/09 : CIA-RDP84-00933R000400130009-7
Lion 3 must proceed. "The words of the statute and the
relevant precedents establish the kinds of matters that
are exempt and any necessary procedural steps that are
required for exemption." Ray v. Turner, supra, 587 F.2d
at 1214 (Wright, C.J., concurring). Moreover, we must
take care that terms susceptible of expansive interpreta-
tion are construed "with sensitivity to the 'hazard [s]
that Congress foresaw."' Founding Church of Scien-
tology v. Nat'l Sccurit y Agency, 610 F.2d 824, 829 (D.C.
Cir. 1979) (brackets in original), quoting American
Jewish Congress v. Kreps, 574 F.2d 624, 629 (D.C. Cir.
1978). In order to carry out "Congress' intent to close
the loophole created in Robertson," Founding Church of
Scientology v. Nat'l Security. Agency, supra, 610 F.2d at
829, quoting Ray v. Turner, supra, 587 F.2d at 1220
(Wright, C.J., concurring), courts must guard against
expansion of the "particular types of matters" Congress
has exempted from disclosure in a way that would create
broad agency discretion of the very type that Congress
sought to eliminate.
Because the term "intelligence methods and sources"
appears in the text of the National Security Act, it is
appropriate for us to begin our analysis with the con-
struction proposed by the CIA, an agency chartered by
that statute and charged with major responsibility for its
administration. See, e.g., Albemarle Paper Co. v. Moody,
422 U.S. 405, 431 (1975) ; Skidmore v. Swift, 323 U.S.'
? 134, 138-140 (1944). But we must not shrink from the
responsibility vested in us by Congress. The question
presented is one of law reserved ultimately to our de-
termination.
B. CIA Interpretation
On this appeal the CIA argues for a standard under
which the term "intelligence source" is defined to mean
"any individual, entity or medium that is engaged to
provide, or in- fact provides, the CIA with substantive
information having a rational relation to the nation's
external national security.""" The Agency candidly con-
cedes that this is a broad definition, which would apply
even to periodicals-including Pravda and the New York
Times-from which it culls information that informs its
view of foreign nations W )d their policy intentions.'
The CIA supports its construction of the National
Security Act primarily through an appeal to policy con-
siderations.115 The Agency argues that the complexity of
its mission makes necessary an expansive definition b ? i
enough to encompass those who give assistance to clan s-
tine agents and those who develop intelligence devices
and techniques on which agents rely, even if they do not
themselves provide the CIA directly with information
about foreign governments. Noting that information
about mind-altering drugs, like all research leading to
development of investigative devices and technology, is
rationally related to national security and threats there-
to, the Agency worries that scientists may hesitate to
undertake research for the Agency in the future, or that
exposure of researchers' identities might expose them to
foreign surveillance or interference. The Agency also
argues that its responsibilities include analysis as well as
collection of secret information, and that it should not,
consistent with the demands of national security, be co`'-
pelled to make public the names of those persons JL
even those publications that it consults. Finally, the
Agency insists that a standard weakening its power to
withhold information in one area of its activities may
cause persons associated with it in other areas to lose
's Brief for appellants at 24.
a See reply brief for appellants at 5.
Sb See generally brief for appellants at 25-28; reply brief for
appellants at 3-9.
 16 Approved For Release 2003/12/09 : CIA-RDP84-00933R000400130009-7 17
confidence in the Agency's promises and hence to break
contact with it.
C. The Statutory Context
In assessing the arguments proffered by the CIA we
must be mindful that the "unmistakable thrust" of the
Robertson amendment to the FOIA "is to inaure that
-basic policy decisions on governmental secrecy be made
by the Legislative rather than the Executive branch,"
American Jewish Congress v. Kreps, supra, 574 F.2d at
628 & n.33; see Founding Church of Scientology v. Nat'l
Security Agency, supra, 610 F.2d at 827-829, and that
it is the responsibility of the courts under the FOIA
"to insure that agencies do not impermissibly expand by
unreviewed interpretations the `particular types of mat-
ters' Congress has exempted from disclosure," Ray v.
Turner, supra, 587 F.2d at 1221 (Wright, C.J., concur-
ring). Taking seriously the responsibilities vested in us
by the Congress, we are unable to agree with the CIA
that Congress intended the term "intelligence sources"
to refer so broadly. Although the legislative history is
sparse, the mosaic of revelant statutory enactments re-
flects Congress' sensitivity to the need for discrimination
in identifying particular types of matters exempted from
disclosure. This sensitivity can be seen, not only in the
Freedom of Information Act,'" but also in the relation-
ship between the National Security Act "t and the Central
Intelligence Agency Act 38-a relationship that belies the
suggestion that Congress intended the term "intelligence
sources" to receive an elastic construction in order to
s" 5 U.S.C. ? 552 (1976).
3T National Security Act of 1947, ch. 343, 61 STAT. 496
(1947) (codified in scattered sections of 5 & 50 U.S.C.).
""Central Intelligence Agency Act of 1949, ch. 227, ? 1, G3
STAT. 208 (1949) (codified at 50 U.S.C. ?? 403a-403j (1976).
preserve vital secrets that would otherwise lack, pro
tection.
The principal purpose of Congress in enacting the
National Security Act of 1947, in which Section 403(d)
(3) appears, was to unify the armed forces under a
single Secretary of Defense. As part of an overall effort
"to provide for the establishment of integrated policies
and procedures for the departments, agencies, and func-
tions of the Government relating to national secur-
ity[,]" "" the Act created the National Security ,'ncil
and the Central Intelligence Agency. The statute , _4s in
the CIA responsibility for correlating and evaluating in-
telligence generated, not only through its own facilities,
but also through those of other government agencies. It
then states, without further elucidation or definition of
terms, that "the Director of Central Intelligence shall be
responsible for protecting intelligence sources and methods
from unauthorized disclosure[.]" fO
National Security Act of 1947 ? 2, 50 U.S.C. ? 401 (1976).
"National Security Act ? 102(d), 50 U.S.C. ?403(d)
(1976), recites the powers and duties of the CIA as follows:
For the purpose of coordinating the intelligence activi-
ties of the several Government departments and agemies
in the interest of national security, it shall be tho "ay
of the Agency, under the direction of the Nationa cu-
rity Council-
(1) to advise the National Security Coui. 1 in
matters concerning such intelligence activities .o. the
Government departments and agencies as rela* t ;
national security;
(2) to make recommendations to the Natiox Se-
curity Council for the coordination of such. i lli-
gence activities of the departments and agencies of
the Government as relate to the national seeur4:,
(3) to correlate and evaluate intelligence relatigg
to the national security, and provide for the ap,,
priate dissemination of such intelligence within tlrs
 Approved For Release 2003/12/09 : CIA-RDP84-00933R000400130009-7
In the context, the, phrase "intelligence sources and
methods" is ambiguous. It would support the CIA's con-
struction that the identity of anyone providing informa-
tion rationally related to national security is ipso facto
cted
o
A
nd
th
t
f
. &%.U
k
-
e
c
.7 u
o lying purpose o
Sale-
guarding national security gives equal plausibility to the
inference that persons are intended to be regarded as
protected intelligence sources only if nondisclosure of
their identities would itself be justifiable on national
security grounds-the construction probably most coin-
patible with the position of appellees on this appeal.
Against this background, the Central Intelligence
Agency Act of 1949, and particularly Section 7 of that
Act, 50 U.S.C. ? 403g (1976), assumes some significance.
As it appears in the United States Code, Section 403g,
"in order further to implement the [protection of intel-
ligence sources] proviso of section 403(d) (3)," recites
in greater detail specific kinds of information that are
statutorily exempt from disclosure: "[T]he Agency shall
Government using where appropriate existing agen-
cies and facilities : Provided, That the Agency shall
have no police, subpena, law-enforcement powers, or
internal-security functions: Provided further, That
the departments and other agencies of the Govern-
ment shall continue to collect, evaluate, correlate,
and disseminate departmental intelligence: And pro-
vided further, That the Director of Central Intelli-
gence shall be responsible for protecting intelligence
sources and methods from unauthorized disclosure;
(4) to perform, for the benefit of the existing
intelligence agencies, such additional services of
common concern as the National Security Council
determines can be more efficiently accomplished
centrally ;
(5) to perform such other functions and duties
related to intelligence affecting the national security
as the National Security Council may from time to
time direct.
be exempted from the provisions * * ? of any ;
law[s] which require the publication or disclosure of the
organization, functions, names, official titles, salaries, or
numbers of personnel employed by the Agency[.]"41
We believe the specificity of Section 403g is important
to this case for two reasons. First, it suggests that the
par,lde of horribles feared by the CIA if its definition is
not accepted would simply not occur. Section 403g pro-
vides specific protection for most of the CIA activities
and contractual relationships about which the Agency has
expressed greatest concern. This conclusion is strength-
ened by the fact that the Agency may always-though it
has not chosen to do so in this case-invoke Exemption 1
to justify nondisclosure of any material it properly de-
cides to classify in order to protect a specific interest in
national security. Second, Section 403g evinces a con-
gressional awareness that Section 403 (d) (3) as originally
written is not and was not intended to be endlessly ex-
pansive. Congress recognized that Section 403 (d) (3)
would require construction and interpretation limiting
executive discretion to withhold; otherwise it would have
felt no need to "implement" the original proviso by listing
the specific matters exempted from disclosure under Sec-
tion 403g.
As a result of congressional action the meaning of
"intelligence sources" in Section 403 (d) (3) unambigu-
ously encompasses all classes of persons and entities with-
in the listing of Section 403g. In order to preserve, yet
also to limit, the range of matters additionally protected,
we must look, in the absence of clear legislative history,
to the congressionally mandated and valid purposes of the
Central Intelligence Agency, whose effective functioning
Congress sought in Section 403(d) (3) to promote.
4150 U.S.C. ? 403g (1976).
 20 Approved For Release 2003/12/09 : CIA-RDP84-00933R000400130009-7
In chartering the CIA Congress set out, not to protect
secrecy as an end in itself, but to provide for effective
collection and analysis of foreign intelligence pertinent
to concerns of national security. Secrecy seems to have
been a concern only insofar as it was pertinent to pro-
tection of the national security. Analysis should there-
fore focus on the practical necessity of secrecy. In order
to avoid an overbroad discretionary standard, see Founul-
ing Church of Scientology v. Nat'l Security Agency,
supra, 610 F.2d at 829, yet at the same time to protect
the underlying concerns of Congress, Section 403(d) (3)
must be interpreted in functional terms: an "intelli-
gence source" is a person or institution that provides, has
provided, or has been engaged to provide the CIA with
information of a kind the Agency needs to perform its
intelligence function effectively, yet could not reasonably
expect to obtain without guaranteeing the confidentiality
of those who provide it.
D. Issues on Remand
Application of this standard will entail a number of
complex determinations for which this case must be re-
manded to the District Court. Conceptually distinct, yet
implicating similar if not identical factual concerns, these
include definition of the class or "kind" of information
involved and assessment of the likelihood that disclosure
would undermine CIA access to information of that
kind.
The inquiries requisite to these determinations will be
heavily factual, and, as an opinion by Judge Wilkey re-
cently emphasized, courts should accord "sub,tantial
weight" to the factual allegations of the CIA in the
area of national security. Halperin v. CIA, F.2d
(D.C. Cir. No. 79-1849, decided July 11,
1980) (slip opinion at 7). Congress intended no less,
but also no more.
In amending the Freedom of Information At to re-',
verse the Mink case and to provide for de novo review in
the District Courts of agency decisions to classify in-
formation under the national security exemption, Con-
gress carefully considered the weight to which agency
determinations were entitled. One proposal called for
agency classifleations In the national security context to
be subject only to minimal judicial scrutiny: courts
would be limited to determining whether there was a
"reasonable basis" for the agency decision to withhoP
a document.42 Congress explicitly rejected this positio _
De novo review was provided in every case.
4 The bill reported by the Senate Judiciary Committee
would have prescribed this standard. S. 2543, 93d Cong., 2d
Sess. ? (b) (2), reprinted in Staffs of Senate Committee on
the Judiciary and House Committee on Government Opera-
tions, Freedom of Information Act and Amendments of 1974
(Pub. L. 93-502), Source Book: Legislative History, Texts,
and Other Documents, at 282 (Committee Print 1975) (here-
inafter cited as "Source Book").
" The "reasonable basis" language was deleted from the
Senate bill pursuant to an amendment introduced by Senator
Muskie. See 120 CoNG. REC. 17022-17032 (1974). Senator
Ervin supported the Amendment with the following remarks :
The [unamended] bill provides that a court cannot 41
verse an agency even though it finds it was wrong .
classifying the document as being one affecting national
security, unless it further finds that the agency was not
only wrong, but also unreasonably wrong.
Why not let the judge determine that question, because
national security is information that affects national
defense and our dealings with foreign countries? That is
all it amounts to.
If a judge does not have enough sense to make that
kind of judgment, he ought not to be a judge * * *.
 22 Approved For Release 2003/12/09 : CIA-RDP84-00933R000400130009-7
Congressional intent emerges clearly from the report
of the Conference Committee to which the "substantial
weight" standard can be traced'' The report recognized
that "the Executive departments responsible for national
defense and foreign policy matters have unique insights
into what adverse affects [sic] might occur as a result of
public exposure of a particular classified record." Ac-
cordingly, it was "expect[ed I that Federal courts, in
making de novo determinations in section 652(b)(1)
cases under the Freedom of Information law, will accord
substantial weight to an agency's affidavit concerning the
details of the classified status of the disputed record."U
But the Conference Committee reiterated its intention to
authorize de novo judicial decisions. And it specified that
"[t]he burden remains on the Government under this
law." 46
As the Halperin case illustrates, the "substantial
weight" formula is most likely to assist the Government
in meeting its burden when answering questions about the
future effects of document disclosure on national security.
As the court stated, a predictive statement "will always
be speculative to some extent[.]" Halperin v. CIA, supra,
F.2d at , slip opinion at 10. In holding the
Government to the burden of justification imposed on it
by Congress, courts should not require the impossible.
On the other hand, there are other inquiries in which the
CIA must stand on essentially the same footing as any
other litigant. For example, final resolution of FOIA
" S. Rep. No. 93-1200, 93d Cong., 2d Sess. 9 (1974). The
Conference Committee explicitly rejected a proposal by Presi-
dent Ford to return to the "reasonable basis" standard of
review. See letter from President Gerald R. Ford to Honor-
able William S. Moorehead, August 20, 1974, reprinted in
Source Book, supra note 42, at 380.
45 S. Rep. No. 93-1200, supra note 44, at 12.
44 Id. at 9.
cases typically demands an application of law to fact.
Once the facts are found, it may remain to be determined
whether they fall within the exempting ambit of one or
another statute. Construction of statutes is an area of
special judicial competence. Agency interpretations should,
not, in this context, receive any more "substantial
weight" than their intrinsic merit commands.
The Halperin case is again illustrative. One section
of the court's opinion settled the narrow point of law
that private attorneys who work under contract for the
CIA in matters pertaining to necessarily clandestine
activities constitute "personnel employed by the Agency"
whose names are exempt from disclosure under Exemp-
tion 3 and Section 403g. See id., F.2d at , slip
opinion at 13-16. Before reaching this narrow legal con-
clusion the court, in other parts of its opinion, accorded
substantial weight to the Agency's assertion that dis-
closure of the names of such attorneys would lead to
exposure of intelligence sources. Id., F.2d at -
slip opinion at 6-11. But the court indicated no
reliance on the Agency in determining the legal issue.
It would be inappropriate for a court to abdicate any
part of its responsibility to decide whether a factual
showing of the likely- consequences of disclosure should
suffice to bring a particular document within the protec-
tive intent of a pertinent statute.
IV. EXEMPTION 6
Exemption 6 to the Freedom of Information Act au-
thorizes withholding of "personnel and medical files and
similar files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy [. ]" "
47 5 U.S.C. ? 552(b) (6) (1976). The CIA invokes Exemp-
tion 6 to protect the names of individual researchers. but
makes no claim that the names of the institutions participat-
ing in MKULTRA could be withheld on that basis. Exemption
 24 Approved For Release 2003/12/09 :.CIA-RDP84-00933R000400130009-7 25
In order for an agency to justify nondisclosure under
this provision, the Government must carry each of three
burdens. First, the agency must establish that the re-
quested file is in fact appropriately classified as "per-
sonnel," "medical,' 'or "similar." Second, it must demon-
strate that release of the information would violate sub-
stantial privacy interests of the person or persons in-
volved. Finally, but only if the first two burdens fire
met, the statute prescribes a balancing test on which the
agency must also prevail. In order to resist disclosure,
the agency must show that the substantial interest in
personal privacy is not outweighed by the public interest
in disclosure. Dept of Air Force v. Rose, 425 U.S. 352,
373 (1976) ; Getman v. NLRB, 450 F.2d 670, G74-677
(D.C. Cir. 1971).
Although finding that a list of names of individual
researchers comprised "similar files" under Exemption 6,
the District Court rejected the Government's claimed
right to withhold by determining that the CIA had failed
to satisfy the third requirement of nondisclosure!' The
court noted that the Agency had not supplied informa-
tion the court deemed essential to accurate assessment
6 is applicable only to individuals. Nat'l Parks and Conserva-
tion Ass'n v. Kleppe, 547 F.2d 673, 685 n.44 (D.C. Cir. 1976) ;
Robertson v. Dep't of Defense, 402 F.Supp. 1342, 1348 (D.
D.C. 1975).
48 Any ambiguity in the court's opinion arises because the
second and third inquiries are so intimately connected. Al-
though the court's conclusion that the public interest in dis-
closure outweighs the privacy interest in nondisclosure clearly
assumes some weighing of the relevant privacy interest, it is
unclear whether the District Court in this case decided the
second issue-whether there was an invasion of personal
privacy sufficiently deep and severe to qualify under any cir-
cumstances as "clearly unwarranted." The court might merely
have assumed the existence of such an interest arguendo and
then found that interest to be overridden. See Sims v. CIA,
supra note 18, 479 F.Supp. at 89.
of the privacy interests involved." 'And without such
information the Government could not prevail on the
balancing test.
After the District Court rendered its decision in this
case Judge Robinson's opinion for this court in Board of
Trade of City of Chicago v. Commodity Futures Trading
Comm'n, F.;r4 , - (D.C. Cir. No. 78-
1089, decided May 13, 1980) (slip opinion at 6-16), has
analyzed and clarified the features that a document must
possess to meet the threshold, definitional requirements
of a "similar" file under Exemption 6. Had Judge Ober-
dorfer had the benefit of this opinion, he might well
have concluded, as we do, that the CIA records requested
in this case cannot be considered "personnel and medical
files [or] similar files" eligible for withholding.
Exemption 6 was intended by Congress to protect in-
dividuals from public disclosure of "intimate details of
their lives, whether the disclosure be of personnel files,
medical files, or other similar files." Board of Trade
of City of Chicago v. Commodity Futures Trading
*' Although the District Court held that the CIA had not
provided adequate factual support for its claim to invoke
Exemption 6, it invited the CIA to communicate with indi-
vidual researchers to elicit "additional information as to
whether any researcher has any reasonable expectation that
his or her participation would be anonymous, as to whether
any researcher has any other privacy interests which might
be compromised by disclosure of participation in the project
or whether any researcher has any other objection or reason
for objection to disclosure of his or her name." Id. Believing
it possible that the CIA might somehow justify its Exemption
6 claim on the basis of facts developed from the suggested
communications, the District Court deferred the effective date
of its order to disclose for nearly two months to give the CIA
time to elicit more facts and develop legal arguments based
thereon. The CIA, however, chose not to communicate with
the researchers. It merely repeated the legal theories urged
earlier.
 26 Approved For Release 2003/12/09 : CIA-RDP84-00933R000400130009-7 27
Conam'n, supra, F.2d at , slip opinion at 13,
quoting Rural Housing Alliance v. U.S. Dep't of Agri-
culture, 498 F.2d 73, 77 (D.C. Cir. 1974) ; sec Robles
v. EPA, 484 F.2d 843, 845 (4th Cir. 1973). Although
the opinion in Rural Housing stated that the exemption
"is phrased broadly to protect individuals from a wide
range of embarrassing disclosures," 498 F.2d at 77, the
context makes clear the court's recognition that the dis-
closures with which the statute is concerned are those
involving matters of an intimate personal nature. Be-
cause of its intimate personal nature, information re-
garding "marital status, legitimacy of children, identity
of fathers of children, medical condition, welfare pay-
ments, alcoholic consumption, family fights; reputation,
and so on" falls within the ambit of Exemption 6 Id,
By contrast, as Judge Stobinaon stated to the Chieauo
Board of Trade case, F.2d at , slip opinion at
14, the decisions of this court have established that in-
formation connected with professional relationships does
not qualify for the exemption.
In Getman v. NLRB, supra, for example, we ordered
disclosure of a list of names and addresses of persons
eligible to vote in union representation elections, despite
assertions that their privacy would be compromised.,"
Although holding explicitly only that release would not
constitute a clearly unwarranted invasion of privacy, we
G? In Getman we held that the law professors conducting an
NLRB voting study were entitled to compel the NLRB to
provide them with the names and addresses of employees
eligible to vote in certain union elections. Because the avowed
purpose of the professors was to telephone selected employees
and ask them to submit to interviews, the court recognized
that "disclosure does involve some invasion of privacy[.]"
Getman v. NLRB, 450 F.2d 670, 675 (D.C. Cir. 1971). But we
stressed that disclosure of the business connection between
union and employee bared no intimately personal facts and left
"any disclosure of information [that is] more personal * * *.
wholly consensual and within the control of the employee." Id.
strongly suggested that the requested lists of names and
addresses failed to qualify as "similar files." "[ T j he
real thrust of Exemption (6)," we wrote, "is to guard
against unnecessary disclosure of files of such agencies.
as the Veterans Administration or the Welfare Depart-
ment or Selective Service or Bureau of Prisons * * *.
The giving of names and addresses is a very much lower
degree of disclosure[.]" 450 F.2d at 675.
Board of Trade of City of Chicago v. Commodity Fu-
tures Trading Comm'n, supra, provides more direct au-
thority. That case arose from an investigation by the
Commodity Futdres Trading Commission of the Board
of Trade's contract to operate a commodity futures.mar-
ket in Chicago.*' As part of its inquiry into the plywood
fut ras oontraet the Corrtmll ion solicited em lt+ioisms and
suggestions frcmn parots trading under the contract, at
least some of whom responded with the understanding
that their identities would be kept confidential. The
Commission therefore asked the Board to respond to com-
plaints and suggestions that it identified only as issuing
from "trade sources." Arguing that it could not assess
the criticisms and suggestions without knowing their
sources, the Board refused to respond until the names in
question were released. The Commission still declined to
reveal the names of its informants, and an FOIA action
ensued. In an opinion by Judge Robinson this court
concluded that Exemption 6 did not apply to the chal-
b' The Commodity Futures Trading Commission is an inde-
pendent regulatory agency created by the Commodity Futurs
Trading Act of 1974. Commodity Exchange Act, 42 STAT.
998 (1922), as amended by the Commodity Futures Trading
Commission Act of 1974, Pub. L. No. 93-463, 88 STAT. 1389,
7 D.S.C. ? 1 et seq. (1976). To function lawfully as a futures
contract market, a Board of Trade must meet certain stand-
ards as well as comply with Commission quid lin s. e
Commission periodically conducts investigations to determine
whether all requirements are being satisfied.
 28 Approved For Release 2003/12/09 : CIA-RDP84-00933R000400130009-7 29
lengecl records, due to their essentially business nature.
There was present in the case a privacy interest, impli-
cated "insofar as release of identifying details would
expose the occupations of these sources, their relation-
ship to the Board, and how they perceive the workings
of the market enterprise from which they derive at least
part of their livelihood." F.2d at , slip opinion
at 15. "But," the court continued, "the fact re#nains that
the withheld information associates these individuals
with business of the Board, and not with any aspect of
their personal lives. The interest in nondisclosure thus
i rarms-led is not In continued privacy of parson it attere
but in anonymity on purely commercial matters."
Id.
We adhere to the analysis of Exemption 6 developed
in the Chicago Board of Trade case. Exemption 6 was
developed to protect intimate details of personal and
family life, not business judgments and relationships.
Surely it was not intended to shield matters of such clear
public concern as the names of those entering into con-
tracts with. the federal government.
To support its claim to invoke Exemption 6 the CIA
relies principally on Dep't of Air Force v. Rose, supra,
a case in which the Supreme Court ordered release of
files summarizing disciplinary proceedings against cadets
at the Air Force Academy but approved deletion of in-
dividual names therein. In holding that records of dis-
ciplinary proceedings triggered the "similar files" pro-
vision of Exemption 6, the Court noted, among other
factors, the possibility of "lifelong embarrassment" en-
suing from disclosure. The CIA argues that the possi-
bility of embarrassment to CIA researchers brings the
records requested in the present case within the holding
of Rose. We cannot agree.
Although the threat of embarrassment was a signifi-
cant factor in Rose, see 425 U.S. at 376-377, the Court
was also at pains to note that the records of the panels,
at the Air Force Academy involved judgments about
matters that are intimate and personal in the. highest
degrees-judgments of ethical propriety and individual.
honor. There was no implication that "embarrassment"
alone . would have sufficed to justify nondisclosure.
Clearly Exemption 6 could not be invoked, under Rose,
to protect the concerns of a contractor who would be
embarrassed by disclosure of his responsibility for shoddy
work. No more should it reach the names of those em-
barrassed by the nature of contract work they have
lortakea ,
Moreover, even it we were to reach the stage of weigh-
ing the privacy interest in nondisclosure and ultimately
that of balancing,63 we would be compelled to agree with
the District Court that the CIA has failed to justify non-
disclosure. Eschewing suggestions by the District Court:
that it communicate with the individual researchers, the
Agency has failed to particularize their objections to
disclosure or to establish the likely consequences of dis-
closure in individual cases. In the absence of a more de-
tailed and conclusive factual showing, we could hardly
find that the Agency had shown an invasion of personal
privacy so deep -and severe as to count as "clearly un-
warranted" when measured against the countervailing
public interest in full disclosure. And in applying a
statute whose language "instructs the court to tilt the
balance in favor of disclosure," Getman v. NLRB, supra,
450 F.2d at 674, we have to accord substantial weight
to the claims of possible public profit. These include
62 The fact that an embarrassing disclosure might have
costly business consequences was implicitly held to be irrele-
vent in Board of Trade of City of Chicago v. Commodity
Futures Trading Comm'n, --G F.2d (D.C. Cir.
No. 78-1089, decided May 13, 1980) (slip op. at 15-16).
03 See text following note 47 supra.
 30 Approved For Release 2003/12/09 CIA-RDP84-00933R000400130009-7 1
possible increases in public knowledge of specific experi-
mental projects and possible identification of additional
victims of drug testing.
V. CONCLUSION
For the reasons stated herein, the judgment of the
District Court must be vacated and the case remanded
for further action not Inconsistent with this opinion.
Vacated and remanded.
MARKEY, Chief Judge, dissenting in part: I join Chief
Judge Wright's typically lucid opinion for the court, dis-
senting, with utmost respect, only from the conclusion
that a remand in respect of Exemption 3 is either neces-
sary or advisable.
Three years is enough. Plaintiffs filed their request in
August, 1977, After more than a year of delay, they
filed suit in November, 1978. After a year of litigation,
they prevailed in 1979. It is now September, 1980. The
information sought is at least 14 years old. Absent some
imperative, plaintiffs should not be forced to return for
further litigation in the district court.
I agree that courts, while shirking none of their statu-
tory responsibilities under FOIA, should approach with
sheathed swords when our nation's security is involved.
The CIA is not the EPA or the FAA. Here, however, the
Agency has specifically declined to refuse disclosure on_
national security grounds.
Indeed, the Agency has declined and 'disdained the
deference-in-depth shown it by the district court. It has
elected to confront the courts with a broad interpretation
of Exemption 3, declining the district court's grant of
additional time to consider Exemption 1, to assert a con-
tract theory, to contact the researchers, and to show facts
indicating that its interpretation of "intelligence sources"
as here applied is not so overbroad as to amount to un-
trammeled agency discretion. Before us, the Agency
presents policy questions more properly presented to the
Congress. The resulting impression is one of noblesse
oblige. It does the Agency no injustice to remark that
one who appears to have brown down a gauntlet should
not be surprised when it appears to have been picked
up. The Agency's implicit invitation to supply a usable
definition of "intelligence source," as that phrase is em-
ployed in Section 403(d) (3), has been well met in Chief
Judge Wright's opinion.
 2 Approved For Release 2003/12/09
The clarity and applicability of that definition to the
facts of record, coupled with the conduct of the Agency,
prompt my view that remand is unnecessary and
inadvisable.
It is true that neither the Agency in 1977, nor the
district court in 1978, had the present definition avail-
able. Nonetheless, the differences between the definition
here established and that employed by the Agency are not,
in light of the record, such as to compel remand.
The present definition is broader in some senses and
narrower in others.' It is broader in substituting "pro-
vides, has provided, or has been engaged to provide" for
the Agency's "is engaged to provide, or in fact provides."
It is narrower in eliminating "medium," and in sup-
planting the broad terms "substantive information" and
"having a rational relation to the nation's external na-
tional security" with a more usable "information of a
kind the Agency needs to perform its intelligence func-
tion effectively." It is narrower also in adding the emi-
nently appropriate requirement that the information be
of a kind the CIA "could not reasonably expect to obtain
For convenience, the definitions are juxtaposed:
Present definition:
"(A] n 'intelligence source' is a person or institu-
tion that provides, has provided, or has been engaged
to provide the CIA with information of a kind the
Agency needs to perform its intelligence function
effectively, yet could not reasonably expect to obtain
without guaranteeing the confidentiality of those
who provide it."
The Agency's definition:
"An 'intelligence source' generally is any individual,
entity or medium that is engaged to provide, or in
fact provides, the CIA with substantive informa-
tion having a rational relation to the nation's ex-
ternal national security."
CIA-RDP84-00933R000400130009-7 3
without guaranteeing the confidentiality of those who
provide it."
The Agency's definition effectively reads "intelligence
source" as "information source," requiring protection of
all sources of all information "rationally related" to na-
tional security? As the majority opinion makes clear,
that sucits into secrecy's maw too many sources of too
many kinds of information. That the Agency's defini-
tion is unacceptable, however, is not alone sufficient basis
for remand here.
Application of the standard, that is, the majority's
definition, does not in my view require determinations
"conceptuall
distinct" from those made b
or foreclosed
y
y,
by the Agency to, the district court. Further, I find the
implicated factual concerns identical.
Presumably, remand is thought necessary to allow the
Agency to show that the 21 institutions and 185 re-
searchers provided "information of a kind the Agency
needs to perform its intelligence function effectively, yet
could not reasonably expect to obtain without guarantee-
ing the confidentiality of those who provide it." But, as
the record shows, the Agency has already established the
"kind" of information here involved (research data on
behavior modifying drugs). It has established its claimed
need for the information, that is, to counter use of such
drugs by potential adversaries and to develop its own
capacity for their use. Whatever may be said of the
wisdom or morality of the MKULTRA program and its
z We deal here only with Exemption 3, not with Exemption
Considerations of national security may go beyond inquir-
ies on whether a potential adversary may already have certain
information, and may encompass inquiries on whether the
adversary knows the Agency knows, whether the adversary
may learn the Agency is interested in knowing, and, of
course, whether the adversary may learn of the Agency's
source or sources of that certain information.
 4 Approved For Release 2003/12/09 : 41A-RDP84-00933R000400130009-7
operation, the Agency's need for the research data "to
perform its intelligence function effectively" has not been
challenged on this record. Hence, a remand is unneces-
sary to prove that element of the standard.
That leaves only the question of whether the informa-
tion was of a kind the Agency "could not reasonably
expect to obtain without guaranteeing the confidentiality
of those who provide it." Yet proof of the answer to that
question is precisely what the Agency has adamantly
refused to seek or present, though the district court twice
invited it to do so. The Agency effectively refused the
district court's request for evidence of express or implied
confidentiality promises by the Agency. It declined the
district court's suggestion that it ask the researchers, in
connection with Exemption. 6, whether they even ex-
pected confidentiality. A remand to enable a party to do
what it had specifically refused to do when initially
before the district court, thereby allowing that party to
force the conduct of piecemeal litigation, is in my view
entirely inappropriate.
Further, what there is in the record on the subject
indicates that the Agency had good reason for not at-
tempting to prove the information unobtainable without
a guarantee of confidentiality. From all that appears,
the information was obtained without that guarantee,
express or implied. The Agency dealt primarily through
a front organization. If the Agency had promised con-
fidentiality, explicitly or implicitly, it could have so es-
tablished in the court below. That it did not, even in
response to the court's invitation, should be taken as
evidence that it could not and cannot do so on remand'
' Similarly, reclassification of the names, reliance on Ex-
emption 1, or similar post-appeal actions in avoidance of
disclosure by the Agency, would create an impression of play-
ing fast and loose with the judicial process. With three years
to consider reclassification, and more than two years to con-
Though the "substantial weight" standard was initially
phrased in relation to classified records and those here,
are declassified, it is not necessary to base a present
refusal to remand on that ground. That the court in
Halperin gave substantial weight to the Agency's asser-
tion respecting the effect of disclosure of the names of
attorneys under contract for the CIA might have rele-
vance if we were considering a "factual showing" of the
effect of disclosure here 4 The district court and this
court have here been denied that showing, though the
Agency has had more than ample opportunity to ma
it and to rely on a "substantial weight" standard. If,
the majority correctly says, it would be "inappropriate
for a court to abdicate any part of its responsibility to
decide" when presented with such a factual showing, even
in the face of a substantial weight standard, it would
appear even more inappropriate for an appellate court to
remand when the district court was specifically and
unequivocally denied that showing.6
eider reliance before the courts on Exemption 1, the Agency
may be presumed to have no sound basis for those actions.
A contrary view would make the Agency appear to have en-
gaged in judicial gamesmanship, holding back some defenses
while it tries out others through an appeal, a practice not re-
quired to obtain a judicial pronouncement on the defensa
asserted. The courts' treatment here of two defenses could
have easily included a third.
' The Agency has not here asserted that the instituUoms
or researchers were working under a contract with the Aggtn4
or were otherwise "employees" under 50 U.S.G. ?464
(1976).
6It is true that courts should not require the impossil-lr,
and that predictions of what others might do if the nanuo
here sought were disclosed are necessarily specututlve, L t
the time for those considerations is in my view p& L 1ior'"
over, nothing of record remotely hints that the Agency wD1140
able to do any more than repeat the bald assertions .already
made, namely, that disclosure of these names will IMPO'k
 Approved For Release 2003/12109 : CIA-RDP84-00933R000400130409-7
i~.
Approved For Release 2003/12
Hence I cannot join the conclusion that the district*
court applied an improper legal standard to the Exemp-
tion 3 defense. That defense rested on the Agency's
definition of "intelligence sources." The district court,
viewing that definition as overbroad (a proper legal
standard), held the defense inadequate. We do the same,
on the same ground. That we also "provide guidelines"
will be helpful to the Agency, to others, and to the in-
terests of judicial economy in future cases. Where, how-
ever, as here, the Agency cannot meet, those guidelines,
indeed, declined to even try meeting them when the
district court (in different words) invited that effort,
I would not remand. I would affirm the district court's
judgment respecting Exemption S.
willingness of others to work with the Agency. Whether the
public today perceives the Agency as a pariah is not estab-
lished on the record, but the disclosure of the names of insti-
tutions and researchers who were under the impression that
they were not working for the Agency cannot be assumed to
impede a willingness of others to work for the Agency when
asked to do so. Presumably, also, those employing the FOIA
to obtain the names here sought do not intend to risk con-
tinued viability of the statute by unnecessarily exposing those
institutions ahd researchers to public ridicule solely on the
ground that they were caught up without their knowledge in
MKULTRA.
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