FREEDOM OF INFORMATION AND THE CIA INFORMATION ACT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89B00236R000200240001-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 76
• Document Creation Date: December 21, 2016
• Document Release Date: November 6, 2008
• Sequence Number: 1
• Content Type: OPEN SOURCE

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THE T. C. WILLIAMS SCHOOL OF LAW
U N I V E R S I T Y O F
RICHMOND
LAW REVIEW
A DEDICATION TO THOMAS A. EDMONDS ............. Daniel T. Murphy
FREEDOM OF INFORMATION AND THE CIA
INFORMATION ACT ............................ Karen A. Winchester
James W. Zirkle
VIRGINIA STATE CORPORATION COMMISSION: RESPONSIBLE
REGULATION FOR THE COMMONWEALTH ............. Elizabeth B. Lacy
MAGINOT LINE DEFENSES TO A PREFERENCE
ACTION? ..................................... Charles E. Reynolds
COURT-ORDERED EXEMPTIONS TO SECURE RELIGIOUS
LIBERTIES ........................................ Gary C. Leedes
ENFORCEMENT OF ARBITRATION CLAUSES AGAINST
DECEIVED FRANCHISEES .................... William H. Daughtrey, Jr.
COMMENTS
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The Master's Tools
JOHN L. DAVIS, J.D. JAMES B. WILTSE, ESQ.
1603 Park Avenue P.O. Box 486
Richmond, VA 23220 Herndon, VA 22070
Phone:[phone] Phone:[phone]
1/800-523-0096
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Corpus Juris Secundum. The
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A contemporary statement
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West Publishing Company
P.O. Box 64526, Saint Paul,
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? 1986 West Publishing Co.
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ARTICLES
FREEDOM OF INFORMATION AND THE CIA
INFORMATION ACT
Karen A. Winchester*
James W. Zirkle**
I.
Introduction .....................................
232
II.
Exemption (b)(1) ................................
236
A. Which Executive Order? ......................
245
B. The Vaughn Index ...........................
246
III.
The Glomar Response ............................
248
IV.
Exemption (b)(3) ................................
250
V.
The Central Intelligence Agency Information Act of
1984 ............................................
253
A. Purposes of the Act ..........................
254
B. Legislative History ...........................
255
C. Major Provisions .............................
260
1. Exemption of Certain Operational Files and
Subsection 701(c) Exceptions ..............
260
2. Internal Dissemination of Information Within
the CIA .................................
273
3. Judicial Review ..........................
275
4. Decennial Review .........................
291
5. Retroactivity .............................
294
VI.
Conclusion ......................................
295
* Former Assistant General Counsel for Legislation, Defense Intelligence Agency. From
1980-85 she was an attorney, more recently Deputy Chief, Legislative Division, Office of
General Counsel, Central Intelligence Agency. B.A., 1975, University of Miami; J.D., 1978,
Indiana University.
** Assistant General Counsel, Central Intelligence Agency. B.S., 1963, Carson-Newman
College; J.D., 1972, University of Tennessee; LL.M., 1973, Yale Law School.
The authors express their appreciation to E. Page Moffett, Associate General Counsel,
Central Intelligence Agency, for helpful suggestions and to Ms. Millie Arthur and The Insti-
tute of Bill of Rights Law, Marshall-Wythe School of Law, College of William and Mary, for
assistance in the preparation of this manuscript.
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232 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 21:231
The original Freedom of Information Act (FOIA) was signed into
law by President Lyndon B. Johnson on July 4, 1966.1 In form it
was an amendment of section three of the Administrative Proce-
dure Act of 1946.2 In substance it represented a sweeping expan-
sion of the law of public access to government records.3 FOIA was
the culmination of more than a decade of efforts by various con-
gressional committees. It provides that "any person" may seek dis-
closure of federal agency records, with a statutory presumption
favoring disclosure. An agency may withhold the information only
if it falls within one of nine specific exemptions contained within
FOIA.4 Further, FOIA gives federal district courts jurisdiction to
1. Freedom of Information Act, Pub. L. No. 89-487, 80 Stat. 250 (1966) (codified as
amended at 5 U.S.C. ? 552 (1982)).
2. Pub. L. No. 404, 60 Stat. 237.
3. The original section three of the Administrative Procedure Act of 1946 contained the
first general statutory provision for public disclosure of executive agency records. Because of
its vague language and broad loopholes it proved ineffective and in practice was often used
as a basis for withholding information. In its original form, section three provided that in-
formation could be withheld whenever an agency believed that secrecy was required in the
"public interest," and "any matter relating solely to the internal management of an agency"
could be withheld.
4. 5 U.S.C. ? 552 (b) states that ? 552 does not apply to matters that are:
(1)(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; (2) related solely to the internal
personnel rules and practices of an agency; (3) specifically exempted from disclosure
by statute (other than section 552b of this title), provided that such statute (A) re-
quires 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 withholding or refers
to particular types of matters to be withheld; (4) trade secrets and commercial or
financial information obtained from a person and privileged or confidential; (5) inter-
agency or intra-agency memorandums or letters which would not be available by law
to a party other than an agency in litigation with the agency; (6) personnel and medi-
cal files and similar files the disclosure of which would constitute a clearly unwar-
ranted invasion of personal privacy; (7) investigatory records compiled for law en-
forcement purposes, but only to the extent that the production of such records would
(A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair
trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal
privacy, (D) disclose the identity of a confidential source and, in the case of a record
compiled by a criminal law enforcement authority in the course of a criminal investi-
gation, or by an agency conducting a lawful national security intelligence investiga-
tion, confidential information furnished only by the confidential source, (E) disclose
investigative techniques and procedures, or (F) endanger the life or physical safety of
law enforcement personnel; (8) contained in or related to examination, operating, or
condition reports prepared by, on behalf of, or for the use of an agency responsible
for the regulation or supervision of financial institutions; or (9) geological and geo-
physical information and data, including maps, concerning wells.
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FREEDOM OF INFORMATION 233
enjoin an agency's impermissible withholding of records. The im-
mediate goal of FOIA was to make more government information
available to the public, both as an end unto itself and as a means
of promoting greater public oversight of the internal workings of
government agencies.' The ultimate goal, as one writer observed,
was the encouragement of administrative reform through increased
public awareness of agency practices.'
A great deal of information has been routinely released since
FOIA became effective on July 4, 1967. Also, more than 2,000 law-
suits to compel additional agency disclosure have been commenced
during this time.' But from the beginning there was substantial
disagreement between the executive and legislative branches con-
cerning the degree of protection that should be afforded national
security information under FOIA.8
Any reasonably segregable portion of a record shall be provided to any person re-
questing such record after deletion of the portions which are exempt under this
subsection.
Subsection (c) provides that these exemptions do not apply to Congress.
5. "The basic purpose of the FOIA is to ensure an informed citizenry, vital to the func-
tioning of a democratic society, needed to check against corruption and to hold the gover-
nors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242
(1978).
As President Johnson observed in his bill-signing statement:
This legislation springs from one of our most essential principles: a democracy works
best when the people have all the information that the security of the nation permits.
No one should be able to pull curtains of secrecy around decisions which can be re-
vealed without injury to the public interest. . . . I signed this measure with a deep
sense of pride that the United States is an open society in which the people's right to
know is cherished and guarded.
STAFFS OF SENATE COMM. ON THE JUDICIARY AND HOUSE COMM. ON GOVT. OPERATIONS, FREE-
DOM OF INFORMATION ACT AND AMENDMENTS OF 1974 (Pub. L. No. 93-502); SOURCE BOOK:
LEGISLATIVE HISTORY, TEXTS, AND OTHER DOCUMENTS 1 [hereinafter SOURCE BOOK].
6. See Katz, The Games Bureaucrats Play: Hide and Seek Under the Freedom of Infor-
mation Act, 48 TEX. L. REV. 1261 (1970).
7. See, e.g., OFFICE OF INFORMATION AND PRIVACY, U. S. DEP'T OF JUSTICE, FREEDOM OF
INFORMATION CASE LIST (Sept. 1986). For an informative guide to litigation under FOIA, see
LITIGATION UNDER THE FEDERAL FREEDOM OF INFORMATION ACT AND PRIVACY ACT (A. Adler
11th ed. 1986) [hereinafter LITIGATION).
8. When the Senate issued the bill, S. 1160, 89th Cong., 2d Sess. (1966), which was to
become the Freedom of Information Act, President Johnson threatened to veto it. The
House Committee then entered into negotiations with the Department of Justice and even-
tually issued a report giving a broad interpretation to the proposed statutory exemption.
The House, however, passed the Senate version, 112 CONG. REC. 13,640 (1966), which was
signed into law. There is, therefore, a sharp distinction between the Senate and the House
reports (S. REP. No. 813, 89th Cong., 1st Sess. (1965) and H.R. REP. No. 1497, 89th Cong., 2d
Sess. (1966), reprinted in 1966 U.S. CODE CONG. & ADMIN. NEWS 2418-29). The courts have
generally held that the Senate report more accurately reflects the legislative intent. See
Department of the Air Force v. Rose, 425 U.S. 352 (1976), and cases cited therein.
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234 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 21:231
Congress recognized that not all agency records should be availa-
ble to the public as a matter of statutory right. Of the'nine exemp-
tions contained in FOIA,s (b)(1) and (b)(3) are the exemptions
most directly involved in the protection of national security infor-
mation. As Congress recently demonstrated in enacting the Central
Intelligence Agency Information Act of 1984 (the "Act"),10 the ap-
plication of FOIA to an intelligence service such as the Central In-
telligence Agency (CIA) raises policy questions as well as problems
in application.
This article examines the circumstances that led to the enact-
ment of the Act, which exempts, with certain exceptions, CIA op-
erational files from the application of FOIA. Those portions of the
legislative history that most likely will affect judicial interpretation
will also be examined.
The central difficulty with FOIA in its application to national
security information, especially information held by the CIA, lies
in a failure on the part of Congress to fully recognize those organi-
zational and functional characteristics of a secret intelligence ser-
vice that distinguish it from other executive agencies. This failure
appears to derive in part from a fundamental misperception that
there exists under our Constitution a public "right" to obtain sen-
sitive information pertaining to intelligence activities and the con-
duct of foreign affairs. The public's so-called "right to know," on
which FOIA in part is premised, is founded more in the popular
press and the writings of some commentators than in the Constitu-
tion. This is not to suggest that in a representative democracy
there are not strong, even compelling reasons to discover or create
a right of access on the part of the public to most government in-
formation. But there is no general "right to know" found in the
Constitution. The most that can be said is that a limited right, in
some circumstances, may be inferred from other rights. FOIA (and
the functionally related Privacy Act) were enacted precisely be-
cause it was necessary to create enforceable rights not otherwise in
existence to obtain government information.
Congress has provided in exemptions (b)(1) and (b)(3), respec-
tively, that information properly classified in the interest of na-
tional security, or information otherwise specifically exempted
from disclosure by statute, will not be subject to the disclosure re-
9. 5 U.S.C. ? 552 (b).
10. Pub. L. No. 98-477, 98 Stat. 2209.
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quirements of FOIA." In the latter instance, there must be "par-
ticular criteria" established to define (and contain) agency discre-
tion or, in the alternative, a reference to the particular types of
matters that are to be withheld. Otherwise, statutory authority
must provide that matters are to be withheld so as to leave an
agency no discretion." Congress clearly intended that executive
branch decisions concerning the need for secrecy should be given
great weight and that information properly withheld should not be
subject to disclosure. But Congress failed to fully recognize the
way in which the CIA is structured to carry out its principle tasks
of gathering information ("collection"), assembling and analyzing
it ("analysis"), and protecting sources and methods from penetra-
tion by foreign intelligence services ("counterintelligence"). There
was also a failure to anticipate the effect that FOIA would have on
the CIA in terms of the extraordinarily high cost of compliance
and, perhaps more importantly, the effect on the perception of
those foreign individuals and organizations with whom the CIA
does business who might be inhibited by the fear, albeit unjusti-
fied, that the CIA might be ordered by a court to disclose its
sources. These concerns ultimately led to the enactment of the
Central Intelligence Agency Information Act of 1984.
In 1966, when the original FOIA was enacted, Congress failed to
anticipate the judicial deference that would be afforded executive
branch decisions to classify or otherwise limit access to national
security information under the (b)(1) and (b)(3) exemptions.13
This was promptly addressed, however, in the 1974 and 1976
amendments, which are discussed below. These amendments, of
course, were intended only to impose limits on the executive
branch's ability to withhold information under these FOIA exemp-
tions. They obviously did nothing to address the other problems
created for the CIA by FOIA. (In fact, the number of FOIA re-
quests received by the CIA increased sharply after the 1974
amendments.) For example, in order to enhance security within
11. 5 U.S.C. ? 552 (b)(1), (b)(3). It should also be noted that the Privacy Act provides a
broad exemption from its coverage for the Central Intelligence Agency. See 5 U.S.C. ?
552a(j)(l) (1982).
12. The National Security Act of 1947, as amended, 50 U.S.C. ? 403 (d)(3), provides
"[t]hat the Director of Central Intelligence shall be responsible for protecting intelligence
sources and methods from unauthorized disclosure." It has been uniformly recognized that
the provision qualifies as an exemption under (b)(3). Military Audit Project v. Casey, 656
F.2d 724 (D.C. Cir. 1981); Goland v. CIA, 607 F.2d 339, 350 (D.C. Cir.), vacated in part, 607
F.2d 367 (D.C. Cir. 1978), cert. denied, 445 U.S. 927 (1980).
13. See FAA v. Robertson, 422 U.S. 255 (1975); EPA v. Mink, 410 U.S. 73 (1973).
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236 UNIVERSITY OF RICHMOND LAW REVIEW ' [Vol. 21:231
the CIA, there is a compartmentalization of files and access to in-
formation is on a strict "need-to-know" basis. When an FOIA re-
quest is made, the CIA in effect is required to break down this
system of compartmentation when assembling the requested infor-
mation for review. This is a substantial security concern. Further-
more, the nature of the information contained in CIA files, particu-
larly operational files, requires that reviewers be experienced
enough to recognize the implications likely to follow from the re-
lease of a particular item that might, to the untrained eye, appear
innocuous. This creates a substantial demand on limited resources,
detracting from the CIA's principal responsibility to a much
greater extent than an agency that is not burdened with the exten-
sive security requirements of an intelligence service. Finally, most
of the information contained in operational files is protected by
the (b)(1) and (b)(3) exemptions. This has resulted in very little
information being released while imposing a substantial burden on
the CIA. There is an additional concern. The information that can
be released, a word or phrase here and there in an otherwise
blanked-out document, may lead the unwary to erroneous conclu-
sions as a result of using the information out of context.
II. EXEMPTION (b)(1)
In the original FOIA, Congress provided that information "spe-
cifically required by Executive order to be kept secret in the inter-
est of national defense or foreign policy" was not subject to disclo-
sure.14 In 1973, in EPA v. Mink,15 the Supreme Court interpreted
this exemption to afford the executive branch broad discretion to
withhold information in the interest of national security. This case
involved an action filed in 1971 by Congresswoman Patsy Mink
and thirty-two of her colleagues in the House of Representatives to
compel the release of recommendations contained in a report by a
high-level interdepartmental committee that had investigated the
advisability of underground nuclear testing. The government con-
tended that the materials sought were within the (b)(1) and (b)(5)
exemptions. At least eight of the ten requested documents were
described as classified at the secret or top secret levels. They were
also described as "restricted data" pursuant to the Atomic Energy
Act of 1954.18 The government did not choose to rely on (b)(3),
14. 5 U.S.C. ? 552 (b)(1) (1967).
15. 410 U.S. 73 (1973).
16. 42 U.S.C. ?? 2014(y), 2161-2162 (1982).
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although the Court made reference to that exemption in footnote
four of its opinion. The Court held that the (b)(1) exemption did
not permit the compelled disclosure of classified documents, nor
did it permit in camera inspection of classified documents either to
determine the legitimacy of the classifiation or to segregate for re-
lease any "non-secret components. 1117 The Court noted that FOIA
might have provided more stringent requirements for asserting the
(b)(1) exemption, but concluded that the legislative intent was to
defer to the executive branch regarding what should be withheld in
the interest of national security.1e
The majority opinion in Mink addressed issues of statutory in-
terpretation. Because of the broad interpretation given to the stat-
utory exemption, it was not necessary for the Court to examine the
constitutional questions posed by the doctrine of separation of
powers, the state secrets doctrine, or executive privilege.19 These
constitutional doctrines are not coextensive with the statutory ex-
emptions.20 In Mink, the Court suggested that Congress could have
gone further than it did in opening government files to the public.
However, the Court also made a pointed reference to the limita-
17. Mink, 410 U.S. at 78.
18. "Obviously, this test was not the only alternative available. But Congress chose to
follow the Executive's determination in these matters and that choice must be honored." Id.
at 81.
19. Justice Stewart in his concurring opinion noted: "This case presents no constitutional
claims, and no issues regarding the nature or scope of `Executive privilege.' " Id. at 97
(Stewart, J., concurring). In reviewing claims of privilege under the state secrets doctrine,
courts may in appropriate circumstances require in camera examination of the documents in
question.
20. United States v. Reynolds, 345 U.S. 1 (1952) (general discussion of state secrets doc-
trine). See generally Weinberger v. Catholic Action of Hawaii/Peace Educ. Project, 454 U.S.
139, 144 (1981); United States v. Nixon, 418 U.S. 683, 703-16 (1974) (executive privilege);
United States v. United States Dist. Ct., 407 U.S. 297, 321 (1972) (no inherent presidential
authority to conduct warrantless electronic surveillance in domestic security cases); Totten
v. United States, 92 U.S. 105 (1876); Salisbury v. United States, 690 F.2d 966, 975 (D.C. Cir.
1982); Farnsworth Cannon, Inc. v. Grimes, 635 F.2d 268 (4th Cir.), reh g, 30 Fed. R. Serv. 2d
(Callaghan) 1274 (4th Cir. 1980); ACLU v. Brown, 609 F.2d 277, 280 (7th Cir. 1979), reh'g,
619 F.2d 1170 (7th Cir. 1980); In re Halken, 598 F.2d 176 (D.C. Cir. 1979); Halken v. Helms,
598 F.2d 1 (D.C. Cir. 1978); Fitzgerald v. Penthouse Int'l, 525 F. Supp. 585 (D. Md. 1981)
(libel action where government intervened as a party and moved to dismiss on the ground
that any trial of the libel action would reveal classified military secrets); reu'd in part, 691
F.2d 666 (4th Cir. 1982), cert denied, 460 U.S. 1024 (1983); United States v. Felt, 491 F.
Supp. 179 (D.D.C. 1979); Simrick v. United States, 224 Ct. Cl. 724 (1980).
The Classified Information Procedure (Graymail) Act, Pub. L. No. 96-456, 94 Stat. 2025
(1980), establishes procedures governing the discovery of classified information in criminal
prosecutions. No similar statute exists for discovery in civil actions.
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238 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 21:231
tions required by executive privilege."
Congress moved quickly in the 1974 amendments to overrule
these parts of Mink by providing specifically for in camera review
and the release of segregable portions of otherwise non-disclosable
documents, even where the document as a whole was properly clas-
sified.22 Congress also provided that in (b)(1) cases the courts
should determine de novo whether a document was properly classi-
fied according to the criteria and procedures established by the ap-
plicable Executive Order.23 The legislative history indicates that
Congress, in providing for de novo judicial review, intended that
"substantial weight" be given to an agency's affidavit supporting
the decision to classify.24 This qualifying language in the confer-
ence report was apparently designed to address strong objections
by the executive branch to the proposed amendments, particularly
those relating to de novo review.25 During the course of the joint
conference committee deliberations, President Nixon resigned and
was succeeded by President Ford, who expressed his reservations
and proposed a less intrusive standard of review:
I could accept a provision with an express presumption that the
classification was proper and with in camera judicial review only af-
ter a review of the evidence did not indicate that the matter had
been reasonably classified in the interests of our national security.
Following this review, the court could then disclose the document if
it finds the classification to have been arbitrary, capricious, or with-
out a reasonable basis.28
21. Mink, 410 U.S. at 83. The Court noted: "Congress could certainly have provided that
the Executive Branch adopt new procedures or it could have established its own proce-
dures-subject only to whatever limitations the Executive privilege may be held to impose
upon such congressional ordering." Id.
22. See 5 U.S.C. ? 552 (a)(4)(B) (1982).
23. Id.
24. The conference committee report notes that:
the conferees recognize that the Executive departments responsible for national de-
fense and foreign policy matters have unique insights into what adverse affects [sic]
might occur as a result of public disclosure of a particular classified record. Accord-
ingly, the conferees expect that Federal courts, in making de novo determinations in
section 552 (b)(1) cases under the Freedom of Information law, will accord substan-
tial weight to an agency's affidavit concerning the details of the classified status of the
disputed record.
S. REP. No. 93-1200, 93d Cong., 2d Sess. 12 (1974).
25. See Ray v. Turner, 587 F.2d 1187, 1206-15 n.28 (D.C. Cir. 1978) (Wright, C.J., concur-
ring); see also Allen v. CIA, 636 F.2d 1287, 1294-97 (D.C. Cir. 1980).
26. Letter from President Gerald R. Ford to the Honorable William S. Moorhead (Aug.
20, 1974), cited in Ray, 587 F.2d at 1207, reprinted in SOURCE BooK, supra note 5, at 380.
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1987] FREEDOM OF INFORMATION 239
The conference committee rejected this compromise language,
and the conference committee's version, ultimately passed by Con-
gress, was vetoed by the President. In vetoing the bill, the Presi-
dent again offered a compromise proposal that would permit courts
to review the classification of documents while requiring them to
uphold the classification where there was a reasonable basis to sup-
port it. Under the President's proposal, in camera review would
have been available only after consideration of all other evidence.27
Instead, Congress overrode the veto.
As amended, the first exemption protects from disclosure mat-
ters that are "specifically authorized under criteria established by
an Executive Order to be kept secret in the interest of national
defense or foreign policy and . . . are in fact properly classified
pursuant to such Executive Order. 1118 Executive Order No. 12,35628
is the current authority for classifying, declassifying, and safe-
guarding national security information. It provides procedural and
substantive criteria for classification and declassification and ex-
pressly prohibits the classifying of information to hide violations of
law, bureaucratic inefficiency, administrative error, and embarrass-
ment to a person or agency, or to prevent or delay the release of
information that does not require classification to protect national
security.30
The principal area of disagreement between the executive
branch and Congress over the 1974 amendments dealt with de
novo judicial review. The legislative history indicates that Congress
was concerned with executive branch accountability to Congress
and to the public. Congress insisted on an objective, independent
judicial determination, believing that judges would be sensitive to
the executive branch's responsibility to protect national security.
In the debates on the amendment, Senator Sam Ervin perhaps put
it most succinctly: "The court ought not to be required to find any-
27. I propose, therefore, that where classified documents are requested the courts could
review the classification, but would have to uphold the classification if there is a rea-
sonable basis to support it. In determining the reasonableness of the classification,
the courts would consider all attendant evidence prior to resorting to an in camera
examination of the document.
Ray, 587 F.2d at 1208-09 (Wright, C.J., concurring) (message from the President vetoing
H.R. 12471, an act to amend the Freedom of Information Act, H.R. Doc. No. 983, 93d Cong.,
2d Sess., reprinted in SOURCE Boox, supra note 5, at 483-85).
28. 5 U.S.C. ? 552 (b)(1).
29. 47 Fed. Reg. 14,874 (1982).
30. See.Statement of President Reagan upon signing Exec. Order No. 12,356, concerning
national security information, 1982 PUB. PAPERS 420 (Apr. 2, 1982).
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240 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 21:231
thing except that the matter affects or does not affect national se-
curity. If a judge does not have enough sense to make that kind of
decision, he ought not to be a judge ...."31 As the District of
Columbia Court of Appeals made clear in Ray v. Turner, Congress
"emphasized that in reaching a de novo determination the judge
would accord substantial weight to detailed agency affidavits and
take into account that the executive had `unique insights into what
adverse affects might occur as a result of public disclosure of a par-
ticular classified record'. 1112 Senator Chiles observed:
If, as the Senator from Mississippi said, there is a reason, why are
judges going to be so unreasonable? We say that four-star generals
or admirals will be reasonable but a Federal district judge is going to
be unreasonable. I cannot buy that argument, especially when I see
that general or that admiral has participated in covering up a mis-
take, and the Federal judge sits there without a bias one way or
another. I want him to be able to decide without blinders or having
to go in one direction."
The courts are in general agreement concerning the standard of
judicial review incorporated in FOIA.34 The characteristics of de
novo review are essentially the same in all national security cases,
although the government's burdens under de novo review are
somewhat different depending upon whether (b)(1) or (b)(3) is be-
ing invoked .3B For (b)(1), the government must show a reasonable
31. Ray, 587 F.2d at 1194 n.18 (quoting 120 CoNG. REC. 17,030 (1974)). The court also
quoted Senator Muskie:
As a practical matter, I cannot imagine that any Federal judge would throw open the
gates of the Nation's classified secrets, or that they would substitute their judgment
for that of an agency head without carefully weighing all the evidence in the argu-
ments presented by both sides.
On the contrary, if we constrict the manner in which courts perform this vital re-
view function, we make the classifiers themselves privileged officials, immune from
the accountability necessary for Government to function smoothly.
Id. (quoting 120 CONG. REC. 36,870 (1974)).
32. Id. at 1194 (citing S. REP. No. 1200, 93d Cong., 2d Sess. 12, reprinted in 1974 U.S.
CODE CONG. & ADMIN. NEWS 6290).
33. 120 CoNG. REC. 17028 (1974), cited in Ray, 587 F.2d at 1194 n.18.
34. But see LITIGATION, supra note 7, at 29 (suggesting that two somewhat different stan-
dards for judicial review have been employed, with the court in Ray and Allen suggesting
that a determination that information is properly classified is required while later decisions
require only that there be a "reasonable basis" for finding potential harm).
35. [I]n reaching a de novo determination [a] judge [should] accord substantial weight to
detailed agency affidavits and take into account that the executive had `unique in-
sights into what adverse affects [sic] might occur as a result of public disclosure of a
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basis for its belief that disclosure may result in damage to national
security and that the information is classifiable under the current
Executive Order. By contrast, (b) (3) requires only that the infor-
mation be protected by a statute that qualifies under that exemp-
tion. There is no requirement under (b)(3) that the government
demonstrate danger to national security. The government, how-
ever, always bears the burden of establishing that information
sought to be withheld falls within one of the statutory
exemptions.S"
An exemption is usually asserted by filing an unclassified affida-
vit with the court, indicating the specific reasons for invoking the
exemption. Since the burden is on the government to show why
particular classified record.'
The salient characteristics of de novo review in the national security context can be
summarized as follows: (1) The government has the burden of establishing an exemp-
tion. (2) The court must make a de novo determination. (3) In doing this, it must first
'accord substantial weight to an agency's affidavit concerning the details of the classi-
fied status of the disputed record.' (4) Whether and how to conduct an in camera
examination of the documents rests in the sound discretion of the court, in national
security cases as in all other cases. To these observations should be added an excerpt
from our opinion in Weissman (as revised): 'If exemption is claimed on the basis of
national security the District Court must, of course, be satisfied that proper proce-
dures have been followed, and that by its sufficient description the contested docu-
ment logically falls into the category of the exemption indicated.'
In part, the foregoing considerations were developed for Exemption 1. They also
apply to Exemption 3 when the statute providing criteria for withholding is in fur-
therance of national security interests.
Ray, 587 F.2d at 1194-95 (citations omitted).
Under (b)(3) an agency must only "show specifically and clearly that the requested mater-
ials fall into the category of the exemption." Hayden v. NSA, 608 F.2d 1381, 1390 (D.C. Cir.
1979), cert. denied, 446 U.S. 937 (1980); see also Founding Church of Scientology v. NSA,
610 F.2d 824, 830 (D.C. Cir. 1979).
It should be noted that in a (b)(3) case, the third part of the above process will involve a
determination of whether the information in question falls within the scope of a qualifying
statute rather than a review of the details of classification. Although classification is not a
requirement under (b)(3), it is often the case that a determination of what is an intelligence
source or method will involve information that is classified.
36. Ray, 587 F.2d at 1194. Congress in the FOIA did not limit an agency's discretion to
disclose. The decision whether to invoke an exemption is within the discretion of the
agency. See Chrysler Corp. v. Brown, 441 U.S. 281 (1979). By comparison, in a "reverse
FOIA" suit, a plaintiff seeks to enjoin an agency's release of information. In these cases, the
judicial review is limited to a finding that the agency has not acted arbitrarily. See generally
Worthington Compressors, Inc. v. Gorsuch, 668 F.2d 1371 (D.C. Cir. 1981).
In the normal reverse-FOIA case the ultimate issue is whether an agency violates the
APA [Administrative Procedure Act] when it seeks to disclose submitted information
which is exempt under FOIA. In that case the agency has some discretion to act, and
the issue properly is limited to whether the record indicates that it has done so
reasonably.
Id. at 1373.
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information is sensitive and would, if released, be injurious to na-
tional security under (b)(1) or is protected by statute under (b)(3),
it is often necessary for the government to bring this information
to the attention of the court by filing ex parte in camera a classi-
fied affidavit. This would be in addition to the filing of an open
affidavit notifying the court and the parties that the government is
invoking one or more of the national security exemptions. To pre-
vail in an FOIA action, an agency must prove that each document
requested has either been produced, is unidentifiable, or is wholly
exempt.37
An agency's affidavits must be sufficiently detailed to demon-
strate to the court that the documents sought fall within one of the
statutory exemptions. The standard that the district court must
apply in making this de novo review is whether the government's
affidavits or showings are reasonably specific and demonstrate that
the documents are properly exempt.38 A conclusory affidavit that
merely states that compliance with an FOIA request would reveal
information protected by one of the exemptions, without produc-
ing information sufficient to demonstrate that the information
sought is protected, is not sufficient to support dismissal or sum-
mary judgment.39 It is within the discretion of the district court,
after reviewing the government's affidavits, to require an in camera
inspection of the documents to determine whether they are prop-
erly exempt.oo
If the affidavits provide specific information sufficient to place the
documents within the exemption category, if this information is not
contradicted in the record, and if there is no evidence in the record
of agency bad faith, then summary judgment is appropriate without
any in camera review of the documents 41
37. Founding Church of Scientology, 610 F.2d at 836.
38. Id.
39. Founding Church of Scientology, 610 F.2d 824.
40. Ray, 587 F.2d at 1195.
41. Hayden v. National Sec. Agency/Central Sec. Serv., 608 F.2d 1381, 1387 (D.C. Cir.
1979), cert. denied, 446 U.S. 937 (1980), cited with approval in Allen v. CIA, 636 F.2d 1287,
1291 (D.C. Cir. 1980). The Allen opinion provides a good discussion of when in camera
inspection is appropriate. The opinion also describes what the court found to be inadequate
affidavits filed in support of Exemptions 1 and 3.
The affidavits' reliance on such expansive phrases as `intelligence sources and meth-
ods,' `sequence of events,' and `process' falls far short of providing the `reasonable
specificity' that this court has held is required for summary judgment without in
camera inspection. Indeed, the statement does not adequately demonstrate that the
substantive standard for classification . . . has been met. . . . The affidavits also offer
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? Conversely, in camera inspection of the requested documents
does not imply bad faith on the part of the government. It is
merely a determination by the court that, under the circumstances,
in camera review is appropriate in order for the court to make a de
novo determination. 42
In deciding whether to require in camera inspection, a court is
required to give "substantial weight" to an agency's affidavits.43 Al-
though it is within the court's discretion to require in camera in-
spection, such inspection should not be ordered unless the court
finds that the agency's affidavits are not. sufficiently specific, or are
otherwise unpersuasive in demonstrating the applicability of the
statutory exemptions. This issue was addressed in the conference
committee's report on the 1974 amendments: "Before the court or-
ders in camera inspection, the Government should be given the
opportunity to establish by means of testimony or detailed affida-
vits that the documents are clearly exempt from disclosure. The
burden remains on the government under this law."44 As Judge
Wright notes in his concurring opinion in Ray:
[T]hen, without shifting the burden of proof or weakening the re-
quirement of de novo review or curtailing the propriety of in camera
examination, the Conference Report added the following qualifica-
tion with respect to judicial review in cases involving national de-
no basis for a conclusion that all `reasonably segregable' non exempt portions of the
document have been released. They do not even contain an assertion to that effect.
Allen, 636 F.2d at 1292-93 (citations omitted).
With respect to those portions of the document withheld under Exemption 3, the
affidavits fail to demonstrate that the portions are clearly exempt. . . . The CIA's
affidavits do little more than parrot the language of Section 403(d)(3) by stating that
`intelligence sources and methods' will be compromised if the document is disclosed.
But as this court's opinion in Sims v. CIA . . . demonstrates, the phrase . . . is sus-
ceptible to varying interpretations, some of which are unacceptably broad.
Id. at 1294 (citations omitted).
42. The ultimate criterion is simply this: Whether the district judge believes that in cam-
era inspection is needed in order to make a responsible de novo determination on the
claimed exemption. . . . In camera inspection does not depend on a finding or even
tentative finding of bad faith. A judge has discretion to order in camera inspection on
the basis of an uneasiness, on a doubt he wants satisfied before he takes responsibil-
ity for a de novo determination. Government officials who would not stoop to misrep-
resentation may reflect an inherent tendency to resist disclosure, and judges may take
this natural inclination into account.
Ray, 587 F.2d at 1195.
43. Lesar v. United States Dep't of Justice, 636 F.2d 472, 481 n.48 (D.C. Cir. 1980).
44. Ray, 587 F.2d at 1208 (Wright, C.J., concurring) (quoting S. REP. No. 1200, 93d Cong.,
2d Sess. 9 (1974)).
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fense and foreign policy matters:
However, the conferees recognized that the Executive de-
partments responsible for national defense and foreign policy
matters have unique insights into what adverse affects [sic]
might occur as a result of public disclosure of a particular clas-
sified record. Accordingly, the conferees expect that Federal
courts, in making de novo determinations in section 552 (b)(1)
cases under the Freedom of Information Law, will accord sub-
stantial weight to an agency's affidavit concerning the details of
the classified status of the disputed record.""
By comparison, the Supreme Court, in considering the question
of in camera examination in the context of the state secrets doc-
trine, held in United States v. Reynolds46 that a district court may
not automatically insist upon such an examination of classified
documents that the government claims are protected from discov-
ery under Federal Rules of Civil Procedure because of their rela-
tion to national security. When the government's affidavits ade-
quately demonstrate that the information should be protected, a
district court is to respect the security considerations and not or-
der in camera review.47When a district court is in doubt, it may
45. Ray, 587 F.2d at 1208 (Wright, C.J., concurring). A good summary of the weight to be
given agency affidavits in de novo judicial review is found in Gardels v. CIA, 689 F.2d 1100
(D.C. Cir. 1982):
Once satisfied that proper procedures have been followed and that the information
logically falls into the exemption claimed, the courts need not go further to test the
expertise of the agency, or to question its veracity when nothing appears to raise the
issue of good faith. Conversely, summary judgment may be granted on the basis of
agency affidavits if they contain reasonable specificity of detail rather than merely
conclusory statements, and if they are not called into question by contradictory evi-
dence in the record or by evidence of agency bad faith. The test is not whether the
court personally agrees in full with the CIA's evaluation of the danger-rather, the
issue is whether on the whole record the Agency's judgment objectively survives the
test of reasonableness, good faith, specificity, and plausibility in this field of foreign
intelligence in which the CIA is expert and given by Congress a special role.
Id. at 1104-05 (citations omitted).
46. 345 U.S. 1 (1953).
47. As Chief Justice Vinson observes in the opinion of the Court:
Yet we will not go so far as to say that the court may automatically require a com-
plete disclosure to the judge before the claim of privilege will be accepted in any case.
It may be possible to satisfy the court, from all the circumstances of the case, that
there is a reasonable danger that compulsion of the evidence will expose military
matters which, in the interest of national security, should not be divulged. When this
is the case, the occasion for the privilege is appropriate, and the court should not
jeopardize the security which the privilege is meant to protect by insisting upon an
examination of the evidence, even by the judge alone, in chambers.
Id. at 10.
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require that the documents be made available to the court for ex
parte in camera review."'
A. Which Executive Order?
When documents have been classified under a previous Execu-
tive Order, the courts have held that the Executive Order in effect
at the time the most recent classification decision was made will
control."' The question may arise when a new Executive Order is
promulgated after documents are classified, but before an FOIA
request is made for their release. Since an agency is required to
justify the continuing need for classification in asserting a (b)(1)
exemption in accordance with substantive and procedural criteria
established by the then-current Executive Order, it seems clear
that the Executive Order in effect at that time should control, and
the courts that have considered the question have so held.60 A less
likely occurrence would be the promulgation of a new and less re-
strictive Executive Order during the pendency of an appeal after
agency consideration and de novo review under the criteria estab-
lished by the previous Executive Order. In such a case, the appel-
late court should probably remand to the district court for a deter-
mination of whether or not the material fits within the less
restrictive criteria established by the new Executive Order.51 If a
new and more restrictive Executive Order is promulgated while the
In Reynolds, the Court also defines the procedures which the executive must follow in
invoking the state secrets privilege. The head of the executive department which has control
over the matter, usually a cabinet officer, or in the case of the Department of Defense, the
service secretary, must make a formal claim of privilege by affidavit in which the officer
demonstrates with sufficient specificity the circumstances which make the claim of privilege
appropriate. The officer claiming the privilege must have personally considered the matter
and the affidavit must so state. See id. at 7-8.
48. Cf. United States v. Nixon, 418 U.S. 683 (1974) (concerning the power of the Presi-
dent to protect the confidentiality of communications among senior executive officials).
49. See Allen v. CIA, 636 F.2d 1287, 1291 (D.C. Cir. 1980); see also Lesar v. United States
Dep't of Justice, 636 F.2d 472, 480-84 (D.C. Cir. 1980).
50. "Exemption 1 requires that the most recent classification of a requested document be
in conformity with both the procedural and substantive criteria of the then applicable Exec-
utive Order." Allen, 636 F.2d at 1291 (citing Lesar, 636 F.2d at 483).
As the court in Lesar noted: "The general principle espoused here, then, is that a review-
ing court should assess classification under the Executive Order in force at the time the
responsible official finally acts." 636 F.2d at 480 (emphasis in original).
The point, however, is not without some confusion. The court in Lesar noted earlier that
a reviewing court should apply the executive order in effect at the time classification took
place. See id. But the actual holdings make clear that the executive order in effect at the
time the agency last reviews the matter controls.
51. See generally Lesar, 636 F.2d at 484-85.
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case is on appeal, the new Executive Order will be applied on re-
mand where the original classification was found to be defective.62
In reviewing classified documents pursuant to an FOIA request
to determine if classification is still warranted, an agency may re-
classify at a higher level due to a change in circumstances between
the time of original classification and the request for release, or
where information was not originally classified, due either to inad-
vertence?S or a change in circumstances that would require
classification. 64
B. The "Vaughn Index"
In Vaughn v. Rosen,55 the court of appeals addressed the courts'
problem created by the necessity of de novo judicial review where
the government seeks to withhold large quantities of information.
The court in Vaughn defined a two-part problem. First, the in
camera review of agency affidavits is ex parte, thereby depriving a
district judge of the benefit of the views of the opposing party that
would be present in a true adversarial proceeding. Since many
FOIA requests involve a review of hundreds and sometimes ?
52. Afshar v. Department of State, 702 F.2d 1125, 1135-37 (D.C. Cir. 1983).
53. See Halperin v. Department of State, 565 F.2d 699, 706 (D.C. Cir. 1977).
54. See Baez v. Department of Justice, 647 F.2d 1328, 1334 (D.C. Cir. 1980). Exec. Order
No. 12,356, 47 Fed. Reg. 14,874 (1982), is the current authority for classification. Section 1.6
provides that:
(d) Information may be classified or reclassified after an agency has received a re-
quest for it under the Freedom of Information Act or the Privacy Act of 1974, or the
mandatory review provisions of this Order, if such classification meets the require-
ments of this Order and is accomplished personally and on a document-by-document
basis by the agency head, the deputy agency head, the senior agency official desig-
nated under Section 5.3(a)(1), or an official with original Top Secret classification
authority.
Section 1.3 of the Executive Order defines the categories of information which may be
classified:
(a) Information shall be considered for classification if it concerns: (1) military plans,
weapons, or operations; (2) the vulnerabilities and capabilities of systems, installa-
tions, projects, or plans relating to the national security; (3) foreign government infor-
mation; (4) intelligence activities (including special activities), or intelligence sources
or methods; (5) foreign relations or foreign activities of the United States; (6) scien-
tific, technological, or economic matters relating to the national security; (7) United
States Government programs for safeguarding nuclear materials or facilities; (8)
cryptology; (9) a confidential source; or (10) other categories of information that are
related to the national security and that require protection against unauthorized dis-
closure as determined by the President or by agency heads or other officials who have
been delegated original classification authority by the President.
55. 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).
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thousands of pages of documentation, the ' court of appeals found
that it is "unreasonable to expect a trial judge to do as thorough a
job of illumination and characterization as would a party inter-
ested in the case."6a Second, the problem is made more difficult by
the fact that an entire document may not be withheld where the
sensitive information is segregable and may be excised, permitting
release of the non-sensitive portions. Thus a judge, in making a de
novo determination, is required to examine every executive justifi-
cation in some detail.
The "Vaughn Index" was the court's answer to these problems.
Agencies are required to submit a "relatively detailed analysis [of
the material being withheld] in manageable segments."67 Con-
clusory and generalized allegations of exemptions will not suffice.
Further, an agency is required to provide "an indexing system
[that] would subdivide the document under consideration into
manageable parts cross-referenced to the relevant portion of the
Government's justification."68 Finally, the court requires that a
Vaughn Index be made available to opposing counsel to enhance
the adversarial testing of the government's claimed exemptions.68
It should be noted that the administrative burden to which the
court referred in Vaughn is also of concern to agencies that are
required to search and respond to what are sometimes extensive
requests for materials involving sensitive national security infor-
mation. It is true that an agency has at its disposal more resources
than a federal district judge, but the demands on an agency are
also much greater because every request must be responded to and
every identifiable file must be reviewed. This would seem to raise a
substantial question whether this is a wise allocation of relatively
scarce resources. One should recall that a principle goal of FOIA is
oversight of agency activities.80 In the case of the intelligence agen-
cies, Congress has provided for designated committees of the
House and Senate to fully oversee their operation.81
56. Id. at 825.
57. Id. at 826; see also Ray v. Turner, 587 F.2d 1187, 1191 (D.C. Cir 1978).
58. Vaughn, 484 F.2d at 827; see also Ray, 587 F.2d at 1191.
59. Vaughn, 484 F.2d at 828; see also Ray, 587 F.2d at 1192. In the 1974 amendments to
FOIA, the Senate Committee reviewed and specifically approved the approach adopted in
Vaughn. See S. REP. No. 854, 93d Cong., 2d Sess. 15 (1974), cited in Ray, 587 F.2d at 1192.
60. See supra note 5 and accompanying text.
61. National Security Act of 1947, 50 U.S.C. ? 413 (1982) (accountability for intelligence
activities); see S. RES. 400, 94th Cong., 2d Sess. (1976) (establishing Senate Select Commit-
tee on Intelligence); see also XLVIII RULES OF HOUSE OF REP. (establishing Permanent Se-
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A relatively small number of FOIA requests to the. CIA seek in-
formation concerning alleged intelligence activities. When the CIA
receives such a request, a determination must first be made
whether the fact of the existence or nonexistence of the alleged
special activity is properly classifiable pursuant to the applicable
Executive Order. If it is, the CIA will reply that it can neither con-
firm nor deny the fact of the existence or nonexistence of records
responsive to the request, for to do so would indicate the existence
or nonexistence of particular intelligence activities. This is the so-
called "Glomar response." The Glomar response was first utilized
in a FOIA action concerning the CIA's Glomar Explorer Project,
which was undertaken, according to press reports, to raise a
sunken Russian submarine believed to have been carrying nuclear
weapons from the floor of the Pacific Ocean at an undisclosed loca-
tion northwest of Hawaii.62 In May of 1977, following disclosures in
the press, the government acknowledged that the CIA, operating
through a contractual arrangement with Howard Hughes's
SUMMA Corporation, was responsible for the project, and ac-
knowledged the existence of 154 documents pertaining to a FOIA
request initiated by a correspondent for Rolling Stone magazine.
At that time, sixteen documents were released without deletions,
134 were released with deletions, and four were withheld in their
entirety. In withholding the information, the CIA invoked the
(b)(1) and (b)(3) exemptions. In the ensuing litigation, the CIA's
action was upheld, based on the (b)(3) exemption and the agency's
statutory requirement to protect intelligence sources and
methods.63
A 1982 decision upholding the Glomar response is illustrative of
the problem the CIA faces in responding to FOIA requests seeking
information concerning operational activities. In Gardels v. CIA,84
the CIA refused "to confirm or deny the existence of records per-
taining to covert contacts for foreign intelligence puposes between
the Agency and individuals at a specific university in the United
States."86 Gardels, a student at the University of California at Los
lect Committee on Intelligence).
62. Military Audit Project v. Casey, 656 F.2d 724, 727-30 (D.C. Cir. 1981).
63. See Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976), aff'd, 655 F.2d 1325 (D.C. Cir.
1981); see also Military Audit Project, 656 F.2d 724.
64. 689 F.2d 1100 (D.C. Cir. 1982).
65. Id. at 1102.
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Angeles, had sought disclosure of past and present relationships
between the CIA and individuals at the eleven campuses of that
university. As the court's opinion points out, for the CIA to ac-
knowledge that such records existed would be to assist foreign in-
telligence services in identifying individuals cooperating with the
United States government.88 To deny covert contacts with the Uni-
versity of California would also compromise intelligence sources
and methods in the same way. The CIA had received more than
125 similar FOIA requests seeking information on contacts with
American colleges covering approximately one hundred schools. To
indicate which schools had not been involved in covert contact
would be to make the work of intelligence services much easier.
They could concentrate their efforts on the remaining college cam-
puses where their foreign nationals were located.87 The court in
Gardels notes, in reviewing the CIA's assessment of the risk to in-
telligence sources and methods resulting from disclosure, that
[t]he test is not whether the court personally agrees in full with the
CIA's evaluation of the danger-rather, the issue is whether on the
whole record the Agency's judgment objectively survives the test of
reasonableness, good faith, specificity, and plausibility in this field
of foreign intelligence in which the CIA is expert and given by Con-
gress a special role.e8
The court goes on to quote an earlier opinion in another case:
"[T]he purpose of national security exemptions to the FOIA is to
protect intelligence sources before they are compromised and
harmed, not after."89
The Glomar response must be used in a consistent manner to be
effective. In other words, the CIA must use this response when the
66. Id. at 1104.
The foreign intelligence entity could and probably would examine and take measures
against those of its citizens who had studied at the university, could and would pre-
vent its nationals from attending the university, and could and would curtail access
and availability to academics from California (and other American schools) traveling
abroad or seeking contact with foreign sources.
Id.
67. Id.
68. Id. at 1105 (citations omitted).
69. Id. at 1106 (quoting Halpern v. CIA, 629 F.2d 144, 149 (D.C. Cir. 1980)). "Nor should
we reject the Agency's refusal to answer because it cannot prove conclusively that, if it re-
sponded, some intelligence source or method would in fact be compromised or jeopardized.
This is necessarily a region for forecasts in which informed judgment as to potential future
harm should be respected." Id.
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alleged intelligence activity does not exist, as well as when it does,
or the response would be equivalent to admitting that responsive
records do in fact exist. The Glomar-type response is recognized in
section 3.4 (f)(1) of Executive Order No. 12,356, which requires an
agency to "refuse to confirm or deny the existence or non-existence
of requested information whenever the fact of its existence or non-
existence is itself classifiable under this Order. 1170 When the CIA
uses this response it does not initiate a search of its records sys-
tems, since the CIA is refusing either to confirm or deny the exis-
tence of responsive records. Therefore, in cases invoking the
Glomar response, a Vaughn Index is not required.71
IV. EXEMPTION (b)(3)
Under the (b)(3) exemption, an agency's discretion to release in-
formation may be limited by other statutes.72 The (b)(3) exemp-
tion now excludes from coverage information that is:
specifically exempted from disclosure by statute (other than section
552b of this title), provided that such statute (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-
holding or refers to particular types of matters to be withheld.73
Two statutes that have been held to be qualifying statutes under
the (b)(3) exemption are section 102 of the National Security Act
of 1947, which requires the Director of Central Intelligence to pro-
70. 47 Fed. Reg. 14,880 (1982).
71. Phillippi, 546 F.2d at 1013. For a good discussion of those cases where Vaughn does
not require a detailed affidavit but only "as complete a public record as possible" under the
circumstances, see Hayden v. National Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381 (D.C.
Cir. 1979), cert. denied, 446 U.S. 937 (1980). In Hayden, the court also addressed the ques-
tion of whether opposing counsel have a right to be present at an in camera proceeding and
holds that they have no such right. See Agee v. CIA, 517 F. Supp. 1335 (D.D.C.), rehg
denied, 524 F. Supp. 1290 (D.D.C. 1981) (CIA not required to supply additional information
when to do so would force them to breach the exemption).
72. As originally enacted, (b)(3) applied only to matters statutorily exempted from disclo-
sure. The Supreme Court, however, upheld a broad grant of discretion to the executive
branch to withhold information in Federal Aviation Admin. v. Robertson, 442 U.S. 255
(1975). Congress believed that the Supreme Court's interpretation of the original language
gave agency officials too much discretion to withhold information, and in response to the
Robertson decision, amended FOIA to narrow the scope of this exemption. A good summary
of the legislative history of the amendments is found in Allen v. CIA, 636 F.2d 1287, 1294-97
(D.C. Cir. 1980).
73. 5 U.S.C. ? 552(b)(3) (1982).
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tect "intelligence sources and methods from unauthorized disclo-
sure,"" and section 6 of the CIA Act of 1949, which
protects the
nature of the CIA's functions.75 The same procedural requirements
associated with de novo judicial review that pertain to exemption
(b)(1), such as the usual requirement of a Vaughn Index, specific
and detailed affidavits, and the basic requirement that the govern-
ment bear the burden of justifying an exemption, also pertain to
exemption (b)(3).76
Finally, we would make a general observation concerning de
novo judicial review. It seems clear from the legislative history of
FOIA, the cases interpreting that legislation, and the debates in
Congress leading up to the new CIA Information Act, that what is
meant by this phrase is not very different, as it turns out, from
that which President Ford wanted in lieu of the 1974 amendments
that he vetoed. Congress has specifically provided in the legislative
history that executive branch determinations of the need for se-
crecy are to be accorded substantial weight when considered by
courts in the review process. As the Seventh Circuit observed in
the Stein case:
The court is limited to determining that the documents are the
kinds of documents described in the government affidavit, that they
have been classified in fact, and that there is a logical nexus between
the information at issue and the claimed exemption. The court is in
no position to second guess either the agency's determination of the
need for classification or the agency's prediction of harm should re-
lease be permitted.77
74. 50 U.S.C. ? 403(d)(3) (1982).
75. In the interests of the security of the foreign intelligence activities of the United
States and in order further to implement the proviso of section 403(d)(3) of this title
that the Director of Central Intelligence shall be responsible for protecting intelli-
gence sources and methods from unauthorized disclosure, the Agency shall be ex-
empted from the provisions of . . . any . . . law which require[s] the publication or
disclosure of the organization, functions, names, official titles, salaries, or numbers of
personnel employed by the Agency.
50 U.S.C. 403g (1982). For cases holding that ? 403(d)(3) and ? 403(a) are statutes qualify-
ing as (b)(3) exemptions, see Gardels v. CIA, 689 F.2d 1100 (D.C. Cir. 1982); Allen v. CIA,
636 F.2d 1287 (D.C. Cir. 1980); Halperin v. CIA, 629 F.2d 144 (D.C. Cir. 1980); Goland v.
CIA, 607 F.2d 339 (D.C. Cir. 1978), cert. denied, 445 U.S. 927 (1980); Phillippi v. CIA, 546
F.2d 1009 (D.C. Cir. 1976).
76. See Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978); see also Allen, 636 F.2d at
1294; Baker v. CIA, 580 F.2d 664, 668-69 (D.C. Cir. 1978); Phillippi, 546 F.2d at 1015-16
n.14.
77. Stein v. Department of Justice, 662 F.2d 1245, 1254 (7th Cir. 1981); see also Gardels,
689 F.2d at 1105. The Gardels court noted:
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252 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 21:231
The Supreme Court has never specifically addressed the extent
to which the Constitution requires that deference, in a FOIA case,
be afforded to an executive branch decision to withhold informa-
tion in the interest of national security, but it seems clear that the
Constitution would require such deference notwithstanding the
statutory requirement.78 Only on four occasions has the CIA been
ordered by a court to release documents that the agency main-
tained were protected from disclosure under the FOIA.79 In Holy
Spirit Association for the Unification of World Christianity v.
CIA,80 the plaintiff withdrew the document request after the Su-
preme Court granted certiorari, thereby mooting the constitutional
question. In CIA v. Sims,81 the Supreme Court, in a sweeping opin-
ion, upheld the statutory authority of the Director of Central Intel-
ligence to determine what is an intelligence source and method
under the (b)(3) exemption.
In its opinion in Sims, the District of Columbia Court of Appeals
had underestimated the importance of providing intelligence
sources with an assurance of confidentiality that is as absolute as
possible. Under the court's approach, the CIA would have been
forced to disclose a source whenever a court determined, after the
fact, that the CIA could have obtained the kind of information
supplied without promising confidentiality. Such a forced disclo-
sure of the identities of its intelligence sources could have had a
serious impact on the CIA's ability to carry out its mission.
With the Supreme Court's decision in Sims, a potential intelli-
gence source will not be faced with the prospect that judges, who
have little or no background in the delicate business of intelligence
gathering, might order his identity revealed only after examining
The test is not whether the court personally agrees in full with the CIA's evaluation
of the danger-rather the issue is whether on the whole record the agency's judgment
objectively survives the test of reasonableness, good faith, specificity, and plausibility
in this field of foreign intelligence in which the CIA is expert and given by Congress a
special role.
Id. (citation omitted).
78. See generally United States v. Nixon, 418 U.S. 683 (1974); United States v. Reynolds,
345 U.S. 1 (1952) and its progeny, supra note 18.
79. See Sims v. CIA, 709 F.2d 95 (D.C. Cir. 1983), aff'd in part, rev'd in part, 105 S. Ct.
1881 (1985); Holy Spirit Ass'n for the Unification of World Christianity v. CIA, 636 F.2d 838
(D.C. Cir. 1980), vacated in part, 455 U.S. 997 (1982); Peterzell v. Department of State,
Civil No. 82-2853 (D.D.C. April 3, 1984) (unreported decision); Fitzgibbon v. CIA, 578 F.
Supp. 704 (D.D.C. 1983).
80. 636 F.2d 838 (D.C. Cir. 1980), vacated in part, 455 U.S. 997 (1982).
81. 105 S. Ct. at 1881.
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the facts of the case to determine whether the CIA, in hindsight,
needed to promise confidentiality in order to obtain the
information.82
Finally, after reviewing the requirements of de novo judicial re-
view under FOIA, it seems apparent that Congress provided a
standard of review that is de novo only in the sense that agencies
are required to come forward with a reasonable basis for their be-
lief that the information is properly classified and should not be
divulged. As one court put it, citing the legislative history of the
1974 amendments:
It appears that Congress did not intend the courts would make a
true de novo review of classified documents, that is, a fresh determi-
nation of the legitimacy of the classification status of each classified
document. Rather, Congress intended that the courts would review
the sufficiency of the agency's affidavits and would require the
agency to come forward with more information or with the docu-
ments themselves if the affidavits proved insufficient.89
One may reasonably ask whether President Ford did not achieve
essentially the same standard of review that he advocated in veto-
ing the 1974 amendments. In our view, Congress constitutionally
could not have prescribed a standard of review that would fail to
accord a measure of deference to executive decisions concerning
foreign affairs and national security. To do otherwise would be to
raise serious separation of powers problems.84
V. THE CENTRAL INTELLIGENCE AGENCY INFORMATION ACT OF
1984
On 15 October 1984, President Reagan signed into law H.R.
5164, the Central Intelligence Agency Information Act ("Act")."'
The Act is the culmination of years of effort by the CIA to achieve
relief from the requirements of the Freedom of Information Act.88
The Act does not amend FOIA, but rather adds a new title to the
82. Sims, 105 S. Ct. at 1891; see also McGehee v. CIA, 697 F.2d 1095, 1112 n.78, vacated
in part, 711 F.2d 1076 (D.C. Cir. 1983); Holy Spirit, 636 F.2d at 844.
83. Stein, 662 F.2d at 1253.
84. See Nixon, 418 U.S. 683; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579
(1952) (the steel seizure case); United States v. Curtiss-Wright Export Corp., 299 U.S. 304
(1936).
85. Pub. L. No. 98-477, 98 Stat. 2209 (1984).
86. 5 U.S.C. ? 552 (1982).
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254 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 21:231
National Security Act of 194787 to exempt certain operational files
of the CIA from the search, review, publication, and disclosure re-
quirements of FOIA.
We turn now to a review of the purpose and legislative history of
the Act and an examination of the major provisions in the Act. In
order to confine the length of this article to manageable limits, we
will rely, to the extent possible, on frequent citations to printed
Congressional committee hearings and reports that form the legis-
lative history of the Act.88
A. Purposes of The Act
The statutory exemption for operational files is intended to ben-
efit both the CIA and the public.89 The benefit to the CIA is relief
from the requirement to search and review its operational files, as
defined in the Act, in response to a FOIA request. For security
reasons, CIA records systems aIre decentralized and strictly com-
partmentalized. A search for records responsive to a FOIA request
can require the search of numerous records systems and the pull-
ing together of responsive documents. This process defeats the
purpose of compartmentalization. In addition, the review of re-
sponsive documents must be done by skilled intelligence officers,
thus diverting them from their intelligence duties. Years of experi-
ence had shown that the inevitable result of these efforts was the
release of very little, if any, sign Iificant information from these files
87. 50 U.S.C. ?? 401-26 (1982).
88. See Legislation to Modify the Application of the Freedom of Information Act to the
Central Intelligence Agency: Hearing before the Subcomm. on Legislation of the House
Permanent Select Comm. on Intelligence, 98th Cong., 2d Sess. (1984) [hereinafter House
Intelligence Comm. Hearing]; CIA Information Act: Hearing on H.R. 5164 before the Gov-
ernment Information, Justice, and Agriculture Subcomm. of the House Comm. on Govern-
ment Operations, 98th Cong., 2d Sess. (1984) [hereinafter Government Operations Hear-
ing]; An Amendment to the National Security Act of 1947: Hearings on S. 1324 before the
Senate Select Comm. on Intelligence, 98th Cong., 1st Sess. (1983) [hereinafter Senate In-
telligence Comm. Hearing]; H.R. REP. No. 726, pt. 1, 98th Cong., 2d Sess. (1984) (report to
accompany H.R. 5164) [hereinafter House Intelligence Comm. Report]; H.R. REP. No. 726,
pt. 2, 98th Cong., 2d Sess. (1984) (report to accompany H.R. 5164) [hereinafter Government
Operations Report]; S. REP. No. 305, 98th Cong., 1st Sess. (1983) [hereinafter Senate Intel-
ligence Comm. Report].
89. The original and earliest version of the bill in the 98th Cong., S. 1324, contained a
"Findings and Purposes" section which was deleted in the later House versions. See Senate
Intelligence Comm. Report supra note 88, at 1-2; 129 CONG. REC. S16742 (daily ed. Nov. 17,
1983). For committee statements as to the purpose and benefits of the legislation, see Sen-
ate Intelligence Comm. Report, supra note 88, at 10-17; House Intelligence Comm. Report,
supra note 88, at 4-6; Government Operations Report, supra note 88, at 4, 5-8.
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since the material was usually exempt under (b)(1) or (b)(3), and
occasionally under other exemptions. The definition of operational
files makes it clear that the purpose is not to provide a total exclu-
sion for the CIA; furthermore, there are important exceptions to
the exemption for operational files.90 The Act is also intended to
provide a basis for the CIA to extend further assurances to its
sources that the United States government is committed to and
capable of protecting their identities and the confidentiality of
their relationships.'
The public is meant to benefit from the Act through improved
processing of FOIA requests by the CIA. By eliminating unproduc-
tive search and review of operational files, the Act seeks to reduce
the current two to three year FOIA backlog at the CIA to bring
about the speedier processing and release of responsive informa-
tion that does not fall within one of the nine withholding exemp-
tions of the FOIA.92
B. Legislative History9S
Efforts by the CIA to achieve relief from FOIA began in the 96th
Congress. During 1979 and 1980, several bills were introduced that
contained provisions for partial relief for the intelligence agencies
or for the CIA. The House and Senate Intelligence Committees
and a subcommittee of the House Government Operations Com-
mittee held hearings on the bills."" At these hearings, the CIA tes-
tified in support of an amendment to section 6 of the Central In-
telligence Agency Act of 194996 giving the Director of Central
90. See infra notes 139-72 and accompanying text.
91. The authors view this protection of source identities as a separate and distinct issue
from the question of the definition of a source, considered by the United States Supreme
Court in Sims II. See supra notes 81-82 and accompanying text.
92. See 5 U.S.C. ? 552(b) (1982).
93. For a more detailed account of the legislative history, see Senate Intelligence Comm.
Report, supra note 88, at 5-10, and House Intelligence Comm. Report, supra note 88, at 6-8.
94. See Impact of the Freedom of Information Act and the Privacy Act on Intelligence
Activities: Hearing before the Subcomm. on Legislation of the House Permanent Select
Comm. on Intelligence, 96th Cong., 1st Sess. (1979) [hereinafter FOIA Impact Hearing];
The Freedom of Information Act: Central Intelligence Agency Exemptions, Hearings
before the Subcomm. on Government Information and Individual Rights of the House Gov-
ernment Operations Comm., 96th Cong., 2d Sess. (1980); National Intelligence Act of 1980:
Hearing before the Senate Select Comm. on Intelligence, 96th Cong., 2d Sess. (1980); The
National Intelligence Act of 1980: Hearings on H.R. 6588 before the Subcomm. on Legisla-
tion of the House Permanent Select Comm. on Intelligence, 96th Cong., 2d Sess. (1980).
95. 50 U.S.C. ? 403g (1982).
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256 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 21:231
Intelligence (DCI) the authority to exempt from search, review,
and disclosure all information contained in certain designated files
of United States intelligence agencies. The concept of partial FOIA
relief through the DCI's designation of specific files was one that
appeared in various legislative forms in the 96th and 97th Con-
gresses and ultimately formed the basis of the legislation enacted
in the 98th Congress.
The CIA-proposed amendment to section 6 was included in S.
2216, the "Intelligence Reform Act of 1980," but was dropped from
the bill as reported by the Senate Intelligence Committee.99 A sim-
ilar proposal, limited to CIA files, was included in S. 2284, the Na-
tional Intelligence Act of 1980. In the House, H.R. 6588, the Na-
tional Intelligence Act of 1980, contained a proposal similar to the
CIA's, and H.R. 5129 used the same approach but limited the des-
ignation to CIA and National Security Agency (NSA) files. Follow-
ing hearings by these three committees, no further action was
taken during the 96th Congress.
In the 97th Congress, the only congressional consideration of
FOIA relief for the CIA took place in the Senate. Early in the first
session S. 1273, the "Intelligence Reform Act of 1981," was intro-
duced. It embodied the same provisions as section three of S. 2216
in the 96th Congress. The original CIA proposal, which included
other intelligence agencies or components, was again the subject of
a hearing by the Senate Intelligence Committee.97 In testifying for
the CIA, Deputy Director Bobby Inman stated that while S. 1273
was "a more promising approach" than attempting to strengthen
the withholding exemptions in FOIA, the best legislative remedy
for the problems posed by FOIA would be to exclude totally the
CIA and the NSA from the requirements of FOIA.98
The desire for a total exclusion from FOIA was voiced again sev-
eral weeks later by Director of Central Intelligence William J.
Casey in his testimony before a subcommittee of the Senate Judi-
ciary Committee."' The subcommittee had before it several bills
seeking to amend FOIA,100 including S. 1235,101 which sought to
96. S. REP. No. 896, 96th Cong., 2d Sess. (1980) (report to accompany S. 2216).
97. See Intelligence Reform Act of 1981: Hearing before the Senate Select Comm. on
Intelligence, 97th Cong., 1st Sess. (1981).
98. Id. at 12, 16-17.
99. See Freedom of Information Act: Hearings before the Subcomm. on the Constitution
of the Senate Judiciary Comm., 97th Cong., 1st Sess. (1981) [hereinafter FOIA Hearing].
100. See id. at 4-13, 19-29, 30-52, 53-70 (reprinting text of S. 587, S. 1247, S. 1730, and S.
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provide partial relief to the CIA through amendments to FOIA.101
While the Director testified that the partial relief bills which had
been introduced "would all be most helpful" in reducing the bur-
dens posed by FOIA, he advocated total exclusion for CIA, NSA,
and the Defense Intelligence Agency as the only way to eliminate
the perception of sources of information that the United States
could not assure the confidentiality of their identities.10S Neither S.
1273 nor S. 1235 were reported out of committee.
The first bill introduced in the 98th Congress was S. 1324, the
"Intelligence Information Act of 1983," introduced in May 1983. S.
1324 clearly flowed from the concepts of S. 1273 and its predeces-
sors. However, DCI designation of files was limited to certain oper-
ational files of three CIA components. Given the adverse public re-
action and congressional inaction in response to the total exclusion
proposal in the 97th Congress, CIA Deputy Director John N. Mc-
Mahon testified in total support of S. 1324 before the Senate Intel-
ligence Committee in July.104 In his testimony, Deputy Director
McMahon made it clear that the CIA still preferred total exclusion
but was prepared to accept this proposed legislation as an accept-
able compromise given the difficulties the Agency was experiencing
with FOIA.106 It was also made clear in the subsequent question
and answer session that the CIA would not, seek an expansion of
the relief given in this bill in the near future.'?6
The questions and issues raised during the two days of hearings
resulted in lengthy negotiations between Senate Intelligence Com-
mittee members and staff, representatives of the CIA, and various
public interest group members. This process produced an amend-
ment in the nature of a substitute that was unanimously approved
by the Committee in October.107 S. 1324, as reported out of Com-
mittee, then passed the Senate by unanimous consent late in No-
vember 1983.108
1751).
101. Id. at 14-18.
102. The Senate Judiciary Committee had jurisdiction over S. 1235 because it proposed
amendments to FOIA itself, rather than to the CIA Act of 1949 over which the Senate
Intelligence Committee had jurisdiction.
103. FOIA Hearing, supra note 102, at 578.
104. See Senate Intelligence Comm. Hearing, supra note 91, at 5-31.
105. Id. at 20, 24.
106. Id. at 25.
107. Id. at 111-29.
108. See 129 CONG. REC. S16742-46 (daily ed. Nov. 17, 1983).
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In June, legislation had been introduced in the House. H.R.
3460, the "Intelligence Information Act of 1983," exempted certain
operational files of the CIA but differed from S. 1324 in several
respects.1 " It did not use a DCI designation process as the previ-
ous bills had, it contained a definition of "operational files", and it
added another exception to the exemption for operational files. In
November 1983, H.R. 4431 was introduced, which was a companion
bill to S. 1324 as reported by the Senate Intelligence Committee.
Early in the second session, the Subcommittee on Legislation of
the House Intelligence Committee held a hearing on these two bills
and S. 1324 as passed by the Senate. Deputy Director McMahon
again testified on behalf of the CIA. During the course of his testi-
mony, some of the differences between the bills were explored, as
well as a judicial review provision that had been added by the Sen-
ate Intelligence Committee.10 The testimony did not indicate a
clear preference for one bill over the others. The Deputy Director
did state that S. 1324, as reported by the Senate Intelligence Com-
mittee, contained amendments "achieved through good faith nego-
tiations and compromise on the part of all parties involved.""'
The hearing made it clear that there were still unresolved issues
and differences of opinion concerning all three bills."'
Following the hearing, further negotiations took place between
House Intelligence Committee members and staff, the CIA, and in-
terested non-governmental organizations. In March, the bipartisan
introduction of H.R. 5164 represented a blending of S. 1324 and
H.R. 3460, with numerous additional changes that reflected the
status of the negotiations at that point."s The DCI designation
process was included,' 14 and the judicial review provisions had
been expanded. For the first time there was a requirement that the
DCI review the file exemptions made under the legislation (now
entitled the "Central Intelligence Agency Information Act") at
least once every ten years to determine whether any exemptions
could be removed. Furthermore, the retroactivity provision in the
109. House Intelligence Comm. Hearing, supra note 88, at 91-94.
110. See id. at 4-29.
111. Id. at 15.
112. See, e.g., id. at 46-65 (testimony of Mark H. Lynch, Counsel, Americal Civil Liberties
Union).
113. H.R. 5164, 98th Cong., 2d Sess. (1984), reprinted in Government Operations Hear-
ing, supra note 88, at 2-9.
114. This authority of the DCI was no longer phrased in terms of authority to "designate"
files, but was now an authority to "exempt" operational files.
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bill'" was now limited, in the area of FOIA litigation against the
CIA, to cases filed on or after February 7, 1984.118 The negotiations
continued and on April 11, 1984, the full House Intelligence Com-
mittee unanimously adopted an amendment in the nature of a sub-
stitute bill and favorably reported H.R. 5164 as amended."' The
further changes incorporated into the substitute bill pertained to
the judicial review provisions.
H.R. 5164, as reported, was now the product of a lengthy legisla-
tive process involving both intelligence oversight committees. How-
ever, unlike the Senate, there was a second committee with pri-
mary jurisdiction over the bill in the House. In May 1984, the
Subcommittee on Government Information, Justice, and Agricul-
ture of the Committee on Government Operations held a hearing
on H.R. 5164.118 CIA Executive Director Charles A. Briggs testified
in support of the bill119 and for the first time the American Civil
Liberties Union (ACLU) testified in total support of the legisla-
tion, urging enactment of H.R. 5164 as reported by the House In-
telligence Committee without further amendment. The Subcom-
mittee did, however, amend the reported bill to include an
additional reporting requirement for the CIA and, more impor-
tantly, an amendment to the Privacy Act to prevent use of the Pri-
vacy Act as a (b) (3) withholding statute under FOIA.120 The bill as
amended by the Subcommittee was adopted by the full Govern-
ment Operations Committee and, with one dissenting vote, was or-
dered reported on July 31, 1984.121
On September 17, 1984, the House debated H.R. 5164, as re-
ported by the Government Operations Committee, under suspen-
115. H.R. 5164, 98th Cong., 2d Sess. ? 4 (1984), reprinted in Government Operations
Hearing, supra note 88, at 2-9.
116. Prior to this, the House and Senate bills in the 98th Congress had provided for the
legislation to be effective upon enactment and to apply to all pending FOIA requests and
civil actions.
117. For the bill as reported, see House Intelligence Comm. Report, supra note 88, at 2-4.
118. See Government Operations Hearing, supra note 88.
119. Id. at 11-37.
120. The amendment to the Privacy Act had been previously introduced in the House as
H.R. 4696. The CIA did not use the Privacy Act as a (b)(3) withholding statute under FOIA
so the amendment would have no impact on CIA processing of FOIA requests. For this
reason, there will be no further discussion of this provision in the legislation. For an expla-
nation as to the reason for the amendment, see Government Operations Report, supra note
88, at 12-17.
121. For H.R. 5164 as reported, see Government Operations Report, supra note 88, at 1-
4.
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Sion of the rules. 12' Two days later the House overwhelmingly
passed H.R. 5164 as reported by a vote of 369 to 36.123 Since the
House-passed version of the legislation contained in H.R. 5164 dif-
fered from the Senate-passed version in S. 1324, H.R. 5164 had to
be referred to the Senate. On September 28, the Senate voted
unanimously to pass H.R. 5164,124 and on October 15, President
Reagan signed it into law.
C. Major Provisions
1. Exemption of Certain Operational Files and Subsection 701(c)
Exceptions
The new subsections 701(a) and (b) of the National Security Act
of 1947 give the Director of Central Intelligence authority to ex-
empt certain categories of files from the requirements of FOIA. As
mentioned earlier, this concept is not a new one. The main variable
over the years has been whether the legislation would exempt files
located in all the intelligence agencies or only in certain ones. Once
the conclusion was reached that a total exclusion from FOIA for
any intelligence agency was not politically feasible, the focus was
once again on the partial relief approach contained in the earlier
bills. The question then became whether these approaches were
still adequate and, if so, for which agencies.
There was little doubt that FOIA was posing problems for all the
intelligence agencies. However, in time, two other factors became
clear. First, the CIA had the largest volume of requests and a tre-
mendous backlog. Whenever a FOIA request involved search and
review by the Directorate of Operations within the CIA, a final re-
sponse was two to three years in coming. Second, the CIA's strictly
compartmentalized records system made it possible to identify
most readily those files that would fall within the proposed catego-
ries for exemption. Therefore, the decision was made within the
Reagan Administration to support legislation that would grant
partial relief only to the CIA.126
The decision to limit the legislation to the CIA was discussed
during the Senate Intelligence Committee hearing on S. 1324. In
122. See 130 CONG. REC. H9621-31 (daily ed. Sept. 17, 1984).
123. See 130 CONG. REC. H9817-18 (daily ed. Sept. 19, 1984).
124. See 130 CONG. REC. S12395-97 (daily ed. Sept. 28, 1984).
125. See Senate Intelligence Comm. Hearing, supra note 88, at 26 (statement of Chair-
man Goldwater).
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one exchange, Deputy Director McMahon was asked whether S.
1324 was "a camel's nose under the tent" and whether the White
House would be seeking further amendments to achieve relief for
other agencies in the intelligence community.12" Deputy Director
McMahon replied that the White House would not seek them, and
if such efforts were made, they "would not be sanctioned. 11117 As a
result of confining the relief to the CIA, the previous DCI exemp-
tion authority was refined so as to be limited to certain operational
files located in three separate components of the CIA. Subsection
701(a) of the new Title VII gives the DCI the authority to exempt
operational files of the CIA from the search, review, publication,
and disclosure requirements of FOIA. Subsection 701(b) then de-
fines "operational files" for the purposes of Title VII. The three-
part definition spells out which categories of files may be exempted
within each component. The exemptions are to be based on the
function of the files rather than on the files' specific contents. Par-
agraph 701(b)(1) allows only those files belonging to the Director-
ate of Operations "which document the conduct of foreign intelli-
gence or counterintelligence operations or intelligence or security
liaison arrangements or information exchanges with foreign gov-
ernments or their intelligence or security services" to be exempted.
Paragraph 701(b)(2) defines operational files within the Director-
ate for Science and Technology to mean those files "which docu-
ment the means by which foreign intelligence or counterintel-
ligence is collected through scientific and technical systems."
Paragraph 701(b)(3) defines operational files within the Office of
Security to be those "which document investigations conducted to
determine the suitability of potential foreign intelligence or
counterintelligence sources."
What do these definitions allow to be exempted and what do
they leave fully subject to FOIA? The intent of these definitions is
to allow files that document intelligence sources and methods to be
exempt. Information detailing foreign intelligence activities or
counterintelligence activities has proven to be the most difficult
and time-consuming information to review, and after two to three
years of processing most, if not all, of the information can be with-
held under the exemptions afforded in FOIA. Which foreign gov-
ernments or foreign intelligence or security services cooperate with
126. Senate Intelligence Comm. Hearing, supra note 88, at 25; see also House Intelli-
gence Comm. Report, supra note 88, at 8.
127. Senate Intelligence Comm. Hearing, supra note 88, at 25.
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the United States is information that must be, and has been, pro-
tected under FOIA. Information detailing scientific and technical
systems available for the collection of foreign intelligence or
counterintelligence, and how and where they are used, is as sensi-
tive as any information the CIA has, and is clearly withholdable
under the exemptions in FOIA. In all of these areas, security inves-
tigations must be performed to support these activities. Informa-
tion documenting an investigation undertaken to determine
whether potential sources are suitable for either foreign intelli-
gence or counterintelligence purposes is information relevant to
the activities themselves and, as such, is withholdable under FOIA.
Therefore, exempting operational files that "concern the intelli-
gence process"128 will not result in the loss of information to the
public."' It will, however, relieve the CIA of the burden of requir-
ing trained intelligence officers to take time away from their as-
signed intelligence duties to review documents word for word that
ultimately cannot be released.
If information regarding the conduct and management of intelli-
gence activities, as set forth in the definition of operational files, is
to be exempted, what type of information remains accessible? An
important distinction was made between files documenting the in-
telligence process and files documenting the intelligence product,
with the function of the latter being "to store the intelligence gath-
ered from human and technical sources."13? This distinction came
about as a result of the debate questioning what type of informa-
tion belonging to the CIA does the public have a legitimate interest
in having access to for purposes of search and review and possible
release. Agreement was reached on the need to withhold informa-
tion detailing the intelligence process. On the other hand, informa-
tion gathered through the intelligence process, i.e., the intelligence
product, is information of greater value to the public. It is the in-
telligence product that is shared with the President, the National
Security Council, other Executive Branch agencies and Congress
for their use in making decisions affecting the national security
and foreign policy of the United States. After close congressional
scrutiny, it was accepted that the filing systems and filing practices
of the CIA made it possible to exempt operational files docu-
128. House Intelligence Comm. Report, supra note 88, at 20.
129. Id. at 17-18; see also House Intelligence Comm. Hearing, supra note 88, at 13 (testi-
mony of Deputy Director McMahon).
130. House Intelligence Comm. Report, supra note 88, at 21.
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menting the intelligence process while leaving the intelligence
product accessible to the public through FOIA.
To understand why this is so, it is necessary to explain the two
types of intelligence information and how they are handled by the
CIA. Information coming to the CIA from the field is known as
"raw intelligence." It is information gathered from a CIA source.
Usually it can be written so as to protect the source's identity.
This raw intelligence is included in the appropriate operational
file, a file that will be exempted under the Act. The fact that cop-
ies of raw intelligence reports are also disseminated to and re-
tained by the analysts in the Directorate of Intelligence for their
use in preparing "finished intelligence" is critical here. Finished in-
telligence is comprised of a variety of reports, studies, and publica-
tions and it is routinely the finished intelligence product that is
utilized by our policymakers. The files of the Directorate of Intelli-
gence cannot be exempted under the new Act. Therefore, both raw
and finished intelligence remain accessible to the public through
the files of the Directorate of Intelligence. As pointed out in the
House Intelligence Committee Report:
[I]n this case the crucial feature of the CIA filing system is the prac-
tice of disseminating copies of raw intelligence reports for storage in
the files of the Directorate of Intelligence; the Committee expects
the CIA to continue this practice. This practice is, of course, essen-
tial to the very mission of the CIA; it would be useless to collect
information and then fail to share it with analysts and policymakers.
CIA dissemination practices thus ensure continued availability of
raw intelligence."'
Another area identified for continued accessibility by the public
was information concerning policy issues, including operational
policy matters, considered at the executive levels of the CIA.
Again, a close inspection of the CIA's filing practices showed that
it was possible for this type of information to remain accessible.
First of all, decisions at the executive level would involve one or
more of the following: the Director or Deputy Director, Executive
Director, General Counsel, Comptroller, Deputy Director for Ad-
ministration, Deputy Director for Intelligence, Deputy Director for
Operations, Deputy Director for Science and Technology, as well
as other senior CIA officials. Any documents given to the Director,
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Deputy Director, or Executive Director by other Agency officers on
any matter are filed in the CIA's Executive Registry, which re-
mains subject to search and review under the Act. Thus, all docu-
ments on policy issues considered at the executive level will be ac-
cessible through the Executive Registry. Of course, all the CIA files
not falling within the definition of operational files remain subject
to search and review and any policy documents in these files re-
main accessible to the extent permitted by FOIA. In the event that
a document is so sensitive that it is returned to an exempted oper-
ational file after it has been seen by the Director or Deputy Direc-
tor, that document will still be accessible through the Executive
Registry. Internal regulations require the Executive Registry to
maintain a reference for any such document with sufficient infor-
mation to indicate where the document is being stored, thus ensur-
ing its future retrievability for any purpose, including FOIA. As
stated in the House Intelligence Committee Report:
The fact that raw intelligence reports and policy documents are ac-
cessible through index and retrieval systems located in the Director-
ate of Intelligence and the Office of the Director and Deputy Direc-
tor has made it possible to refine the standards for exemption of
CIA operational files in the bill to ensure that enactment of the bill
will preserve the availability to the public of CIA information cur-
rently releasable to the public. 112
The definition of operational files contains an exception after
paragraph 701(b)(3) which states that "files which are the sole re-
pository of disseminated intelligence are not operational files."
Again, this provision is designed to correspond to unique CIA filing
practices. The intent of the definitional exception is to preclude
the exemption of files containing extremely sensitive intelligence
disseminations which are stored solely in the Directorate of Opera-
tions after having been read by the appropriate senior officials.
These intelligence disseminations are the exception rather than the
rule. However, since the intent of the legislation is to continue
public accessibility to the intelligence product, this limited group
of files is specifically excluded from the definition of operational
files to ensure that they remain subject to FOIA search and
review.'"
132. Id. at 19.
133. See id. at 22-23.
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There exist three exceptions to the overall exemption of opera-
tional files from search and review for information in response to a
FOIA request. These exceptions, found in subsection 701(c), define
three types of requests that can trigger the search and review of all
CIA files, regardless of exemption by the DCI under subsection
701(a).
The first exception, provided in paragraph 701(c)(1), was con-
tained in all the Senate and House versions of the legislation. It
states that, notwithstanding the exemption for operational files
contained in subsection 701(a), the CIA must continue to search
and review exempted operational files for information that
concerns:
(1) United States citizens or aliens lawfully admitted for perma-
nent residence who have requested information on themselves pur-
suant to the provisions of section 552 of title 5, United States Code
(Freedom of Information Act), or section 552a of title 5, United
States Code (Privacy Act of 1974).
For several years, the stated policy of the CIA has been to search
all of its files upon request by United States citizens or permanent
resident aliens for information about themselves. For example, in
1979 CIA Deputy Director Carlucci testified before the House In-
telligence Committee:
At the same time we are also conscious of the competing needs of
our U.S. citizens whose support and confidence we must maintain. It
is for this reason that we believe that our files should continue to be
accessible to American citizens and permanent resident aliens, sub-
ject to existing FOIA exemptions, to the extent that information
concerning such persons may be contained in our files.194
When Director Casey testified in 1981 in support of a total exclu-
sion for CIA, NSA, and DIA from FOIA, he ended his testimiony
by stating:
Mr. Chairman, I would simply like to add this morning that noth-
ing which I have said would indicate any lessening in our belief that
individual Americans should continue to be able to determine
whether or not an intelligence agency holds information on them
134. FOIA Impact Hearing, supra note 94, at 7.
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and to obtain this information when security considerations permit.
I wish to state categorically that the intelligence community would
continue full compliance with the Privacy Act, even if totally ex-
empted from the Freedom of Information Act.135
This exception is the easiest of the three exceptions to under-
stand. Whenever the CIA receives a request from a United States
citizen or a permanent resident alien, a search will be made of all
CIA files and a review will be made of all, if any, responsive infor-
mation without exception.136 Such an exception reflected not only
the CIA's position, but also the political reality that Congress
would never seriously consider cutting off an individual's ability to
request information about himself or herself from the CIA or any
other intelligence agency.
The second exception, paragraph 701(c)(2), requires that all files
continue to be searched and reviewed for information concerning
"any special activity the existence of which is not exempt from dis-
closure under the provisions of section 552 of title 5, United States
Code (Freedom of Information Act)." This exception was con-
tained in S. 1324 as introduced and reported and the CIA testified
in support of the provision at all three hearings.137 The Act does
not contain a definition of "special activity." However, the House
Intelligence Committee Report defines the term for purposes of
paragraph 701(c)(2) to mean "any activity of the United States
Government, other than an activity intended solely for obtaining
necessary intelligence, which is planned and executed so that the
role of the United States is not apparent or acknowledged publicly,
and functions in support of any such activity, but not including
diplomatic activities. "138
The second exception recognizes that there are occasions when
the CIA cannot properly use the Glomar response. When the fact
of the existence or non-existence of a special activity is no longer
properly classifiable, the CIA must undertake a search for any re-
135. FOIA Hearing, supra note 99, at 581.
136. House Intelligence Comm. Hearing, supra note 88, at 13; Senate Intelligence
Comm. Hearing, supra note 88, at 14; see also House Intelligence Comm. Report, supra
note 88, at 23.
137. Government Operations Hearing, supra note 88, at 22-23; Senate Intelligence
Comm. Hearing, supra note 88, at 14; House Intelligence Comm. Report, supra note 88, at
13; see also Senate Intelligence Comm. Hearing, supra note 88, at 24-25.
138. House Intelligence Comm. Report, supra note 88, at 28. This definition followed the
Senate Intelligence Committee Report definition found on page 25.
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FREEDOM OF INFORMATION 267
sponsive records and then report either that it has no responsive
records or that it is reviewing responsive records for possible re-
lease. When the CIA undertakes such a search, this exception en-
sures that all CIA files, even exempted operational files, will be
subject to the search.139
It is important to understand that this exception is not meant to
have any impact on what constitutes an acknowledgement of the
fact of the existence or non-existence of a special activity. As
stated in the House Intelligence Committee Report, "[t]he Com-
mittee emphasizes that nothing in paragraph 701(c)(2) in any way
changes the statutory and case law concerning whether the exis-
tence of a special activity is exempt from disclosure under the
FOIA."140
The third exception differs from the previous two exceptions in
that it was not contained in the original version of the legislation
considered in the 98th Congress, i.e., S. 1324 as introduced. Para-
graph 701(c)(3) requires continued search and review of exempted
operational files for information concerning:
the specific subject matter of an investigation by the intelligence
committees of the Congress, the Intelligence Oversight Board, the
Department of Justice, the Office of General Counsel of the Central
Intelligence Agency, the Office of Inspector General of the Central
Intelligence, or the office of the Director of Central Intelligence for
any impropriety, or violation of law, Executive order, or Presidential
directive, in the conduct of an intelligence activity.141
The issue of continued public access to information concerning
alleged intelligence abuses and improprieties was raised several
times during the two days of hearings before the Senate Intelli-
gence Committee. In his testimony before the committee, Deputy
Director McMahon stated that should there be an investigation of
an alleged illegality or impropriety relating to the conduct of an
intelligence activity, the
information relevant to the subject matter of the investigation
139. For the Intelligence Committee discussions of the exception, see Senate Intelligence
Comm. Report, supra note 88, at 24-25, and House Intelligence Comm. Report, supra note
88, at 27-28.
140. House Intelligence Comm. Report, supra note 88, at 28.
141. 50 U.S.C. ? 431(c)(3)(Supp. III 1985).
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would be subject to search and review in response to an FOIA re-
quest because this information would be contained in files belonging
to the Inspector General's Office, for example, and these files cannot
be designated under the terms of this bill. The same would be true
for similar reasons, Mr. Chairman, if under the Congressional Over-
sight Act a senior intelligence community official reports an illegal
intelligence activity to this Committee or to the House Intelligence
Committee.""
Later in the hearing, Chairman Barry Goldwater asked whether
the CIA would
support an amendment which would make it clear that designated
files will be subject to search and review if they concern any intelli-
gence activity which the DCI, the Inspector General, or General
Counsel of the Agency has reason to believe may be unlawful or con-
trary to Executive order or Presidential directive. 143
Deputy General Counsel Ernest Mayerfeld replied that in his view
such a specific item to be legislated would be unnecessary by the
very definition. If the Inspector General or the General Counsel or
the Director's office has reason to believe that something may be
unlawful, there is documentation on this particular matter located
in those files, and they are not in designated files.'44
On the second day of hearings, Senator Daniel K. Inouye raised
the issue again. In his prepared statement, he reiterated CIA assur-
ances that information concerning intelligence abuses would be
available in non-designated files. However, he went on to state:
Yet there is some ambiguity about this explanation, since the files
maintained by these offices might not contain all the details of the
activities in question, but simply the procedural records of the in-
vestigating office. We may wish to specify, in the bill, therefore, that
no records on intelligence abuses could be exempted.145
In his testimony on behalf of the ACLU, Mark Lynch indicated
that this was one of two areas where they were urging amendment.
142. Senate Intelligence Comm. Hearing, supra note 88, at 15.
143. Id. at 29-30.
144. Id. at 30.
145. Id. at 55.
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The concern was that in doing the investigation, the Inspector
General or the Office of General Counsel might send a representa-
tive to the component involved to conduct the review. Therefore,
relevant documents in exempted operational files might not be
copied and available through the Inspector General or Office of
General Counsel files. To avoid this, the ACLU proposed a third
proviso, i.e., an exception, to "trigger a search of the underlying
relevant documents, wherever they may be located in the
Agency.""' When later asked by Senator Patrick Leahy whether
the ACLU felt the concerns regarding access to information con-
cerning alleged intelligence abuses or improprieties could be met
"with clear language in the legislative history," Mr. Lynch
responded:
I think it would be preferable to spell it out in the legislation. I
think there should be another proviso as there is for information
responsive to first party requests, information about covert opera-
tions the existence of which is no longer classified. There ought to be
a further provision in there, information concerning the subject of
an investigation for impropriety or illegality. Something along those
lines I think is essential.1,17
The Committee agreed and amended the bill. S. 1324 was struc-
tured so that the exception for special activities was contained in a
proviso to the designation authority in subsection 701(a). The com-
mittee amended the proviso to also require continued search and
review of designated files
for information reviewed and relied upon in an investigation by the
intelligence committees of the Congress, the Intelligence Oversight
Board, the Office of General Counsel of the Central Intelligence
Agency, or the Office of the Director of Central Intelligence for any
impropriety, or violation of law, Executive order, or Presidential di-
rective in the conduct of an intelligence activity.148
In the Senate Intelligence Committee Report it was made clear
that this provision was intended to ensure "that all materials rele-
vant to the subject matter of the investigation which were reviewed
and relied upon by those who conducted the investigation will be
146. Id. at 69.
147. Id. at 77.
148. S. 1324, 98th Cong., 1st Sess., 129 CONG. REC. S16742 (daily ed. Nov. 17, 1983).
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subject to search and review, even if stored solely in designated
files. "149 The report went into detail concerning how allegations of
abuse or impropriety made by an employee or by a person outside
the Agency are handled within the CIA.160 It is evident from the
language of the proviso itself, as well as the report language, that
the committee was trying to address the concerns that had been
raised in a way that would not seriously detract from the relief
given in the bill. The sectional analysis of the proviso ended by
stating the following:
However, the proviso is not intended to open up all designated files
or even an entire file because portions contain information relevant
to an activity that was the subject of an investigation. The Commit-
tee's intent is rather that only those directly relevant files or por-
tions of files shall be reviewed.151
It became apparent during the hearing before the House Intelli-
gence Committee the following February that the Senate-passed
language in the proviso was a matter of concern. Deputy Director
McMahon again stressed in his testimony the availability of infor-
mation concerning an alleged impropriety or illegality through the
files of the Director's office, the Inspector General's office or the
Office of General Counsel. In an apparent reference to the language
in S. 1324 and the identical language in H.R. 4431, Deputy Direc-
tor McMahon testified that "any information found relevant by
the investigating office but still contained in exempted operational
files would be subject to search and review in response to an FOIA
request. 11151
The day after the Senate Intelligence Committee hearings con-
cluded, Representative Romano Mazzoli, Chairman of the Subcom-
mittee on Legislation of the House Intelligence Committee, intro-
duced H.R. 3460.165 Instead of requiring continued search and
review of exempted operational files for information "reviewed and
relied upon" in an investigation, the Mazzoli bill exception re-
quired search and review for information concerning "the subject
of an investigation." All three bills, however, listed the same group
149. Senate Intelligence Comm. Report, supra note 88, at 26.
150. See id. at 26-27.
151. Id. at 28.
152. House Intelligence Comm. Report, supra note 88, at 14.
153. See supra note 114 and accompanying text.
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? of investigating bodies. During the testimony of Mary C. Lawton,
Counsel for Intelligence Policy for the Department of Justice, Rep.
Mazzoli noted that the list did not specifically include the Depart-
ment of Justice, and he asked whether she believed the list should
be extended to include them.164 Ms. Lawton replied that she did
not think that the practical effect would be very different since
"normally CIA could investigate internally before referring it to us
for further investigation," although she did state that it appeared
"rather odd that the law enforcement branch is excluded. 11155 As a
result of this exchange, the Department of Justice was included in
H.R. 5164 when it was introduced in March. It remained in the bill
as reported by the House Intelligence Committee and subsequently
enacted. The House Intelligence Committee Report discusses the
investigative responsibilities of the Department of Justice as they
relate to the Intelligence Community agencies and states that all
files of the CIA "will remain subject to FOIA search and review for
information concerning the specific subject matter of such investi-
gations for impropriety or illegality in the conduct of intelligence
activities. "151
While the CIA officials did not indicate in their testimony a
strong preference for one bill over another in connection with the
language concerning the investigations exception, the ACLU did.
Mark Lynch testified that the Mazzoli language was "quite supe-
rior" to that contained in the Senate bill. 157 He explained the rea-
soning for their strong preference as follows:
Now, the difference is that if an investigator happens to overlook a
document, he has not reviewed or relied upon it, and it would not be
covered by the Senate bill, whereas the Mazzoli bill will cover all
documents which concern the subject of the investigation, irrespec-
tive of whether it has been actually looked at or overlooked through
inadvertence or whatever other reason.'58
Subsequently Rep. Mazzoli returned to this exchange and asked
Mr. Lynch whether the difference in language between the bills
was really "worth fighting over.""' Rep. Mazzoli opined that "'re-
154. House Intelligence Comm. Hearing, supra note 88, at 31.
155. Id.
156. House Intelligence Comm. Report, supra note 88, at 30.
157. House Intelligence Comm. Hearing, supra note 88, at 49.
158. Id.
159. Id. at 58.
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lied upon' may be too narrow [but] `concerning the subject' is as
broad as the universe."180 After Mr. Lynch reiterated his concern
that the investigators might overlook relevant information, Rep.
Mazzoli stated that he felt that the language in his bill (H.R. 3460)
"seems to be just a little bit murky and amorphous, and it may
lead to more problems. 91161
Rep. Mazzoli's concerns led to further negotiations following the
hearing. The goal was to craft the exception to include any infor-
mation that might have been overlooked and yet preclude an ex-
pansive interpretation as to which exempted operational files
would have to be searched and reviewed under the exception. The
language finally agreed upon was incorporated into H.R. 5164 and,
as cited above, required continued search and review of exempted
operational files for information concerning "the specific subject
matter of an investigation." The House Intelligence Committee
Report again outlined the procedures within the CIA for investi-
gating an alleged impropriety or illegality in connection with an
intelligence activity.182 In discussing the intent behind the revised
language, the House Intelligence Committee Report stresses that
"[t]he key requirement is that information concern the specific
subject matter of the investigation, not that the information sur-
faced in the course of the investigation. 19163 The report then goes
on to state:
The specificity requirement in the phrase `specific subject matter of
the investigation' tailors the scope of information remaining subject
to the FOIA process to the scope of the specific subject matter of
the investigation. This tailoring was intended to avoid the possibil-
ity of an unreasonably expansive interpretation of paragraph
701(c)(3) to include as subject to search and review information
wholly unrelated to any question of illegality or impropriety.184
There is a second and equally important phrase contained in the
exception that should be noted. For the exception to apply, the
investigation must concern a possible impropriety or illegality "in
the conduct of an intelligence activity." The intent was to exclude
investigations of possible criminal conduct by CIA employees, such
160. Id.
161. Id.
162. House Intelligence Comm. Report, supra note 88, at 28-29.
163. Id. at 30-31.
164. Id. at 31.
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FREEDOM OF INFORMATION 273
as stealing office equipment, which has no relationship to an intel-
ligence activity. The phrase is intended to make it "clear that the
continued obligation to search and review exempted operational
files for information concerning an investigation for impropriety or
illegality extends only with respect to an impropriety or illegality
that has a nexus to an intelligence activity. 11115
Occasionally, in the context of a FOIA lawsuit, the issue arises as
to whether certain documents are agency records or congressional
documents.186 This is an important distinction since congressional
documents are not subject to FOIA. The House Report specifically
addresses this issue in connection with the. investigations exception
since it covers investigations by the intelligence committees of the
Congress. The committee's views are set forth in the following
statement:
The Committee emphasizes that nothing in paragraph 701(c)(3) is
intended to affect the definition of agency records subject to request
under the FOIA, as distinguished from congressional documents not
subject to request under the FOIA, or to waive in any way the pre-
rogatives of the House of Representatives and the Senate to main-
tain control over, and confidentiality of, documents generated in the
course of congressional activities. 167
2. Internal Dissemination of Information Within the CIA
Subsection 701(d) contains three paragraphs designed to address
the internal dissemination of information that has been transferred
from exempted to nonexempted operational files. The provisions in
paragraphs 701(d)(1) and (2) were contained in some manner in all
of the House and Senate bills. Paragraph 701(d) (1) states that
nonexempt files "which contain information derived or dissemi-
nated from exempted operational files" will continue to be subject
to search and review. The intent of the paragraph is to ensure that
"the status of a file which is not exempted does not change by the
addition to it of information from an exempted operational file; the
receiving nonexempted file remains subject to search and re-
165. Id.
166. See, e.g., Paisley v. CIA, 712 F.2d 686 (D.C. Cir. 1983), modified, 724 F.2d 201 (D.C.
Cir. 1984); Holy Spirit Ass'n for Unification of World Christianity v. CIA, 636 F.2d 838
(D.C. Cir. 1980), vacated in part, 455 U.S. 997 (1982); Goland v. CIA, 607 F.2d 339 (D.C.
Cir. 1978), cert. denied, 445 U.S. 927 (1980).
167. House Intelligence Comm. Report, supra note 88, at 29-30.
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view. 111611 On the other hand, it was equally important to protect
the exempted status of the operational file from which the infor-
mation was derived or disseminated. In order to do so, paragraph
701(d)(2) was written to provide that the dissemination of infor-
mation from an exempted operational file to a nonexempted file
does not change in any way the exempted status of the originating
operational file. "Therefore, under paragraphs 701(d)(1) and (2),
the flow of records and information from a file which is exempted
to a file which is not exempted has no effect on the exempted/
nonexempted status of the two files.""'
Paragraph 701(d)(3) was not included as a separate provision in
the legislation until the introduction of H.R. 5164. It addresses a
particular internal record-keeping practice of the CIA that was dis-
cussed during the Senate and House Intelligence Committee hear-
ings and touched upon earlier. On rare occasions, information is
shown to the Executive Director, Deputy Director and/or Director
that is of such a sensitive nature that the documents themselves
are not maintained in the Executive Registry but taken back to
operational files for retention. In such cases, the CIA requires that
a "dummy copy" of the document be filed in the Executive Regis-
try in lieu of the document itself.170 The "dummy copy" is a refer-
ence page that contains sufficient information concerning the sub-
ject matter, author, and location of the document so as to make it
retrievable. The Executive Registry remains subject to FOIA
search and review under the Act and the Senate Intelligence Com-
mittee Report, in discussing the referencing requirement, states
that "under H.R. 5164 all records contained in the Executive Reg-
istry, and all records referenced in the Executive Registry by
marker references, will remain subject to FOIA search and review
requirements. All documents referenced in the Executive Registry
will be subject to search and review. 11171
Language in the legislative history, however, was felt to be inad-
equate. In testifying before the House Intelligence Committee for
the ACLU, Mark Lynch noted the clear legislative intent in the
Senate Intelligence Committee Report, but went on to state: "We
think this issue is sufficiently important that it should be elevated
from the level of being dealt with in report language and should be
168. Id. at 31.
169. Id. at 32.
170. See Senate Intelligence Comm. Hearing, supra note 88, at 30-31.
171. Senate Intelligence Comm. Report, supra note 88, at 14.
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dealt with in statutory language, which should not be too difficult
to draft. 11172 And so it was. The paragraph reads:
(3) Records from exempted operational files which have been dis-
seminated to and referenced in files that are not exempted under
subsection (a) of this section and which have been returned to ex-
empted operational files for sole retention shall be subject to search
and review. 173
Language in the House Intelligence Committee Report clearly sets
forth the intent of the paragraph:
As a result of this provision, when the CIA is searching a non-
exempted file for records responsive to a FOIA request and locates a
marker reference which substitutes for a record in an exempted op-
erational file which may be responsive, the CIA must retrieve the
record from the exempted operational file and process it in response
to the FOIA request.
The market [sic] reference practice is of particular importance
given its use in some circumstances in the Executive Registry of the
CIA, which serves the Director of Central Intelligence, the Deputy
Director of Central Intelligence and the CIA Executive Director.
Under H.R. 5164 all records contained in the Executive Registry,
and all records referenced in the Executive Registry by marker ref-
erences, will remain subject to the FOIA search and review
requirements."'
3. Judicial Review
Judicial review was by far the most difficult and. complex issue
that had to be dealt with by the legislation. Interestingly enough,
the subject of judicial review was not really addressed by those
concerned with the legislation until after the hearing before the
Senate Intelligence Committee. During this hearing, it became
clear that there were widely divergent opinions as to whether there
would be any judicial review at all of the actions taken by the CIA
pursuant to the legislation. The Senate Intelligence Committee de-
cided that there should be, and added judicial review provisions.
Further concerns were expressed in the hearings before the House
172. House Intelligence Comm.. Hearing, supra note 88, at 50.
173. 50 U.S.C. ? 431(d)(3) (Supp. II 1985).
174. House Intelligence Comm. Hearing, supra note 88, at 32.
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Intelligence Committee and the provisions were revised. Some of
the remarks and exchanges made during these hearings are impor-
tant in understanding how Congress finally decided upon the judi-
cial review provisions in the Act.
As judicial review was not mentioned in Deputy Director McMa-
hon's prepared testimony for the Senate Intelligence Committee
hearing, the issue first arose during an exchange between Senator
Walter Huddleston and Deputy Director McMahon and Deputy
General Counsel Mayerfeld.175 Senator Huddleston asked them
whether they agreed with his assumption "that the courts would be
able to review the determination that a particular file or set of files
is exempt from search and review.""" They did not agree, and Mr.
Mayerfeld responded that he understood "the designation by the
DCI would not be judicially reviewable and that this bill would
delegate that authority to the DCI."177 He then added that "any
other interpretation I think would turn this legislation on its head,
because if every time the designation by the DCI were challenged
in court, we would be right where we started.""' It was clear from
further questioning that the CIA felt any kind of judicial review
would defeat the relief sought by the legislation.179
The concern over judicial review began to crystallize during the
second day of hearings before the Senate Intelligence Commit-
tee.l8o The prepared statement and oral remarks of Mark Lynch
best illustrate the lack of exchange and opposing assumptions that
had existed concerning judicial review during the previous months
175. Senate Intelligence Comm. Hearing, supra note 88, at 23.
176. Id.
177. Id.
178. Id.
179. Id.
180. In his opening statement, Senator David Durenberger listed the lack of judicial re-
view as one of the problems he had with the bill. Id. at 45. Senator Daniel Inouye made it
clear in his prepared statement that he felt judicial review would apply, just as it does under
the current FOIA. Id. at 54. Chairman Barry Goldwater asked Mary Lawton from the De-
partment of Justice whether she thought the DCI designations should be subject to judicial
review. Ms. Lawton replied that she believed "it would be very difficult ... for a court
which has no knowledge of or experience with the CIA filing system to second-guess the
Director on a description of whether the files fit the statutory definition." Id. at 47. In a
subsequent exchange with Senator Patrick Leahy, Ms. Lawton indicated her belief that S.
1324 did not provide for judicial review, and that if the legislation remained silent on the
issue of judicial review, case law would allow the Department of Justice the option of argu-
ing that judicial review of the designations was precluded. Id. at 51. If some form of judicial
review were included, Ms. Lawton made it clear that the Department of Justice would press
the courts to give great deference to the designation decision of the DCI. Id.
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of discussion. In summarizing his statement for the Committee,
Mr. Lynch expressed "surprise" at the CIA's testimony on judicial
review and expressed the ACLU's position that judicial review was
"absolutely essential. "181 His prepared statement indicated the
ACLU's belief that the bill's silence on judicial review meant that
the courts would have the authority to conduct de novo judicial
review of the operational file designations and went on to press the
committee to have the bill and the legislative history clearly pro-
vide for such a review. In his view, de novo judicial review would
not result in the document-by-document review feared by the CIA.
To resolve any question about the availability of judicial review,
Mr. Lynch proposed that the designation authority of the DCI be
struck and the bill structured so that Congress determined which
operational files could be designated.182 He felt that such a con-
gressional determination, along with the necessary legislative his-
tory, "would make it clear that this action, like all other actions
under the act, are subject to judicial review" and would preclude
the Justice Department from arguing that the standard of review
was other than de novo.18s
Subsequent witnesses differed in their views on judicial review of
the file designations. There was testimony from representatives of
the American Newspaper Publishers Association,184 the Society of
Professional Journalists,1B6 the ABA Standing Committee on Law
and National Security,188 and the Center for Law and National Se-
curity.lB7 The two-day hearing impressed everyone with the impor-
181. Id. at 68.
182. Id. at 71, 73-74.
183. Id. at 76.
184. Charles S. Rowe, testifying on behalf of the American Newspaper Publishers Associ-
ation, stated that the absence of judicial review was "of primary concern" to his association.
Id. at 79. He went on to state that the de novo review provision of the FOIA "put teeth into
the law and helped make it an effective tool for the public." Id. at 80.
185. Steven Dornfeld, National President of the Society of Professional Journalists, ques-
tioned whether "the lack of review [would] increase the likelihood of abuses by the Agency."
Id. at 85.
186. John Shenefield, a member of the ABA Standing Committee on Law and National
Security, appearing in his personal capacity, testified that the bill's silence on judicial review
would reasonably allow for the conclusion that it was not available, which he believed was
"appropriate." Id. at 98. As for the proper standard of judicial review should the Congress
provide for it,. he stated his belief "that de novo review in this area is absolutely inappropri-
ate." Id. at 99.
187. The last remarks made on the issue of judicial review came from John Norton
Moore. Mr. Moore, Director of the Center for Law and National Security, University of
Virginia Law School, and Chairman of the ABA Standing Committee on Law and National
Security, had also testified in his personal capacity. In responding to a question concerning
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278 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 21:231
tance of the judicial review issue and the necessity for the Senate
Intelligence Committee to clearly express its intentions through
statutory language, legislative history, or both. It soon became evi-
dent that if the legislation was to survive politically, some kind of
statutory judicial review provision had to be crafted. Over the next
three months, intensive and tedious negotiations took place in an
effort to reach agreement on provisions to govern judicial review.
With the CIA having testified against any judicial review and the
ACLU and press groups insisting on de novo judicial review, it was
difficult, to say the least, and required give and take on all sides.
Agreement was finally achieved, however, and on October 4,
1983 the Senate Intelligence Committee met to mark up S. 1324.
All Committee members who addressed the judicial review amend-
ment, contained in a new subsection 701(e) and incorporated into
the substitute bill, expressed their support for it. The CIA was-
commended for moving from its position of no judicial review.1e8
Senator Leahy discussed one of the major areas of concern that
had been identified in the negotiations on a judicial review
provision:
In our discussions, it became clear that the Agency's central con-
cern was not judicial review per se, but a fear that plaintiffs might
be able to use the discovery process to circumvent the Bill's intent
and uncover sensitive aspects of CIA operational file systems. As a
member of this Committee, I understand and share the CIA's con-
cern in this respect. For this reason, I agree with draft Report lan-
guage which states that `[t]he Committee does not intend that this
amendment will require CIA to expose through litigation, via discov-
ery or other means, the make up and contents of sensitive file sys-
tems of the Agency to plaintiffs."89
The new subsection 701(e), consisting of two paragraphs, was in-
tended "to provide for judicial review in certain circumstances. "191
judicial review, Mr. Moore testified emphatically that there should be no judicial review of
the designations; furthermore, he had no doubt that under the language of S. 1324 the des-
ignations by the DCI would not in fact be reviewable. Id. at 103-04.
188. See id. at 122-24 (remarks of Senator Patrick Leahy); see also id. at 113 (remarks of
Senator Daniel Inouye); id. at 116 (remarks of Senator Walter Huddleston). For text of new
subsection 701(e), see S. 1324 as reported, reprinted in 129 CONG. REC. S16742-43 (daily ed.
Nov. 17, 1983).
189. Senate Intelligence Comm. Hearing, supra note 88, at 124. Draft report language
cited included in final Senate Intelligence Committee Report at 19.
190. Senate Intelligence Comm. Report, supra note 88, at 19.
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Paragraph 701(e)(1) provided that whenever a complaint alleged
improper designation of files or improper placement of records
solely in designated files, courts could review the CIA's regulations
(required under the new paragraph 701(d)(1)) implementing the
designation authority contained in subsection 701(a). The court's
jurisdiction was initially limited to a review of the regulations. The
Senate Intelligence Committee Report stated the expectation that
"the court will uphold the validity of those regulations if there is a
rational basis to conclude that the implementing regulations con-
form with the statutory criteria for designating files."181 The
court's review of the complainant's allegations could not go any
further unless the complaint was supported with an affidavit,
based on personal knowledge or otherwise admissible evidence,
which made a prima facie showing of the allegations in the com-
plaint. If a court found the affidavit sufficient to make a prima fa-
cie showing, the court was required to order the CIA to file a sworn
response justifying the file designation or the filing of the record in
dispute solely in designated files. It was only at this point that a
court had jurisdiction to review the underlying designation expla-
nations or filing procedures required in subparagraphs
701(d)(1)(B) and (C), respectively. The CIA's response could be
filed in camera and ex parte if classified information was involved.
While the Committee thought a court could normally make a deci-
sion based on these submissions, the report made it clear that a
court had the authority to require additional affidavits or even the
submission of requested CIA's records "in extraordinary circum-
stances."19' The Report also stated, however, that the committee
did not "anticipate the court's review to include examining the file
in question or conducting any other form of discovery. "I" If a
court found there was no rational basis upon which to hold that
the regulations conformed to the statutory criteria in subsection
701(a), or that the CIA had improperly designated a file or improp-
erly filed records solely in designated files, the court was required
to order the CIA to search designated files for the requested
records and review them under the provisions of the FOIA. The
report stated that it was "the intent of this Committee that this be
the sole remedy for either nonconformance of the regulations with
the statute, improper placement of records solely in designated
191. Id. at 30.
192. Id. at 31.
193. Id.
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280 UNIVERSITY OF RICHMOND LAW REVIEW Vol. 21:231
files, or improper designation of a file."194 The paragraph ended
with a provision requiring a court to dismiss the complaint if at
any point during the litigation the CIA agreed to search for the
requested records in designated files.
Paragraph 701(e)(2) provided that where a complaint alleged im-
proper withholding of records because of failure to comply with the
regulations required by 701(d)(2) (which would govern the review
of designated files not less than once every year for possible redes-
ignation), the court's review would be limited to determining
whether the CIA considered the criteria set forth in such regula-
tions.195 Thus, if a court found that the CIA had considered the
public interest or the historical value of a category of files and had
considered whether a signficant portion of the information could
be declassified, the court could not substitute its own judgment for
that of the CIA concerning the dedesignation of a file.
While the CIA was not elated over the inclusion of statutory
provisions ensuring judicial review, officials there believed that,
given the political realities, a reasonable compromise had been
achieved. Furthermore, they believed the unanimous consent pas-
sage of S. 1324 by the Senate meant that the judicial review issue
was settled. It was their turn to be surprised, as indeed they were,
by the testimony given before the House Intelligence Committee
the following February.
In his testimony before the House Intelligence Committee, Dep-
uty Director McMahon did not specifically discuss judicial review
but only referred to it indirectly when he remarked that the
amendments to S. 1324 "were achieved through good faith negotia-
tions and compromise on the part of all parties involved."'" Later,
in response to questioning by Representative William Whitehurst,
the CIA made it clear that they still preferred no judicial review of
the file. designations by the DCI but, having realized there was no
chance of passage without provisions for judicial review, accepted
the language added to S. 1324 (and included in H.R. 4431) as lan-
guage the CIA could "live with. 11197 Questioning by Representative
Mazzoli elicited the CIA's view that his bill, H.R. 3460, in which
operational files were defined and exempted without a DCI desig-
194. Id.
195. S. 1324, 98th Cong., 1st Sess., 129 CONG. REC. S16742 (daily ed. Nov. 17, 1983).
196. House Intelligence Comm. Hearing, supra note 88, at 15.
197. Id. at 17-18.
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nation process, could be seen to preclude judicial review, since it
was Congress legislating which files were to be exempted from
FOIA search and review. Representative Mazzoli responded that
his intent was to retain the current FOIA de novo judicial review
in his bill so that it could be compared with the Senate version. 1118
The testimony indicated, however, that it is difficult to compare
the two because the current judicial review provisions of FOIA ad-
dress whether the information in a particular document has been
improperly withheld under any of the existing nine exemptions,
not the question of the exemption of particular files from FOIA
processing. The latter is the issue presented by this legislation, and
the CIA stated there is "no case law that instructs us on this."199
Representative William Goodling concluded the Committee's ques-
tioning of the CIA on this issue by asking whether the CIA would
continue to support the legislation if it was amended for "full
blown" de novo judicial review. Deputy General Counsel Mayerfeld
responded in the following manner:
What is de novo review? That is a term of art. Let me say that if the
review meant that a plaintiff by means of discovery could examine
our entire file systems and make us prove, the way we have to today,
that a piece of information is classified, make us prove that we filed
properly or that every piece of paper in that file ought to be in
there, if the judicial review is that unfettered, then we could no
longer live with it.200
Concern over the extent of judicial review was echoed by Mary
Lawton. She expressed the Justice Department's preference for
H.R. 3460 since, in their view, the judicial review provisions in
H.R. 4431 (and S. 1324) offered a range of new issues to be liti-
gated. The litigation burden on the Department and the CIA could
increase, resulting in a cure worse than the disease.201 In the ques-
tion and answer period following her prepared statement, Ms.
Lawton repeatedly gave the position of the Department of Justice
of no judicial review under H.R. 3460. This view was based on the
fact that in H.R. 3460 it was "the Congress of the United States
designating the files, and acts of Congress are reviewable customa-
198. Id. at 23-24.
199. Id. at 24.
200. Id. at 26.
201. Id. at 30; see also id. at 32 (Ms. Lawton outlined the various legal challenges she
believed possible).
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rily when you are challenging them on constitutional grounds."202
Given that access under FOIA is a statutory right, she stated that
in her view "there will be a one-shot test of whether that is review-
able. My best guess is it would be found not reviewable, and that
would be the end of it."203
Representative Mazzoli again stated in his exchanges with Ms.
Lawton that it was his intention that H.R. 3460 incorporate the
current judicial review available under FOIA.204 He also made it
clear that one of his concerns was to ensure access by judges to the
information in dispute. Representative Whitehurst and Deputy
General Counsel Mayerfeld, who were asked to join Ms. Lawton,
stated their belief that the Senate/Whitehurst bill, H.R. 4431, pro-
vided judges with the necessary access. When questioned whether
he believed that language should be added to the bill to keep the
current practice of judicial access to documents, Mr. Mayerfeld re-
plied that the CIA was "not worried about judges looking at our
files and judges satisfying themselves, but if it gives rise to a liti-
gating right and permits the plaintiff an unfettered kind of discov-
ery, to walk through our files, that is what we would find
intolerable."205
The next witness was Mark Lynch of the ACLU. While he dis-
agreed with Ms. Lawton's testimony that silence on judicial review
in H.R. 3460 could preclude it, he noted that the possibility of
such an argument by the Department of Justice required Congress
to clearly address the issue of judicial review. He suggested that
one way to address Ms. Lawton's view that a congressional desig-
nation of files would preclude judicial review would be to amend
H.R. 3460 to give the DCI the authority to exempt operational files
as defined in the bill.206
He also disagreed with Ms. Lawton's view that "there is no pre-
cedent to guide the courts in the way disputes under this statute
might be handled."207 Mr. Lynch believed that the body of law
that developed concerning the adequacy of a search for requested
documents by an agency would be useful in litigation under this
legislation. While Mr. Lynch left no doubt that de novo judicial
202. House Intelligence Comm. Hearing, supra note 88, at 31.
203. Id. at 32.
204. Id. at 34.
205. Id. at 36.
206. Id. at 51.
207. Id. at 52.
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review was a requirement for ACLU support of the legislation, he
indicated his belief that de novo judicial review under this legisla-
tion would not "require the same kind of litigation demands that
the Agency has experienced when the issue has been whether a
particular document is exempt under the act."208 Nor did he think
that de novo review would give "plaintiffs an unfettered right of
discovery into the Agency's file system," a possibility that worried
the CIA.209 Later, in response to a question concerning depositions,
Mr. Lynch testified that while he did not "anticipate" an occasion
under the legislation where a plaintiff could depose a CIA official,
he would not rule out the possibility of a judge deciding "in some
extraordinary circumstances" that live testimony was required
from a CIA official with a plaintiff proposing some questions for
the judge to ask.210 However, he did not foresee this happening
very often because "ordinarily the CIA's first affidavit demonstrat-
ing compliance with the statute-assuming that it is a sufficient
affidavit-is going to resolve the issue because unless the plaintiff
can come up with an affidavit controverting the CIA's affidavit,
there is no need for the judge to go further. 99211
In his prepared statement, Mr. Lynch characterized the judicial
review paragraph of S. 1324 and H.R. 4431, paragraph 701(e)(1), as
"hastily drafted on the eve of the Senate Committee's mark-up."212
He suggested that the House Intelligence Committee consider five
different "principles" which the ACLU believed could clarify the
intent of the paragraph.21S First, the legislation should provide for
judicial review of all disputes. In his oral testimony, Mr. Lynch
listed three areas of dispute: (1) whether the designated files meet
the definition of operational files in the bill; (2) whether docu-
ments which should have been found outside of designated opera-
tional files have been improperly placed solely in designated opera-
tional files; and (3) whether the request triggers search and review
of designated operational files under one of the exceptions for first
person requests, a special activity the existence of which is no
longer exempt from disclosure, or information concerning an inves-
tigation for illegality or impropriety in the conduct of an intelli-
gence activity.
208. Id.
209. Id. at 53.
210. Id. at 60-61.
211. Id. at 53.
212. Id. at 38-46.
213. Id. at 44-45.
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Secondly, the focus of any judicial review of a complaint under
paragraph 701(e)(1) should be on whether the CIA's action com-
plied with the statute, and not on the question of whether the reg-
ulations required by paragraph 701(d)(1) complied with the stat-
ute. Mr. Lynch remarked that he found the CIA's compliance with
its regulations to be "irrelevant."214
Third, various procedures consistent with current litigation prac-
tice needed to be set forth in a clear manner. These were explained
as follows:
Whenever a complaint alleges that the CIA has not complied with
the statute, the Agency should be permitted to rebut the allegation
with an affidavit from an appropriate Agency official averring that
the Agency has complied with the statute. At that point, the burden
of proof should shift to the plaintiff to show a genuine dispute that
the Agency's affidavit is incorrect. We have no objection to requiring
the plaintiff to do this by an affidavit based on personal knowledge
or otherwise admissible evidence, for the Federal Rules of Civil Pro-
cedure require no less. If the court finds that the plaintiff has raised
a genuine issue that the Agency has not complied with the legisla-
tion, it can require further submissions from the CIA, which can be
filed in camera ex parte if they are classified. This procedure of in
camera ex parte filings, when necessary, is consistent with current
practice. Although we agree that the plaintiff would not be able to
direct discovery to the CIA on his own initiative, it is important that
the court have the authority to require the CIA to make whatever
submission which the court determines is necessary to resolve the
controversy before it. Any implication in the Senate Report that this
authority is circumscribed should be rejected. However, we stress
that (1) ordinarily a CIA affidavit demonstrating compliance with
the statute will be sufficient, and (2) these affidavits would not be
the same as the detailed affidavits which the Agency is required to
file in support of its decisions to withhold documents under the ex-
emption to the FOIA.215
Fourth, the standard of judicial review should be de novo, re-
jecting the "rational basis" standard contained in the Senate Re-
port to S. 1324.216
Fifth, and finally, the ACLU suggested that the legislation
214. Id. at 60.
215. Id. at 45.
216. Id.
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FREEDOM OF INFORMATION 285
clearly state that any litigation under section 701 would be review-
able under subparagraph 552(a)(4)(B) of FOIA, which is the de
novo judicial review provision for disputes under FOIA. They pro-
posed that their suggested litigation procedures be spelled out in
the legislative history, although they indicated a willingness to
have them incorporated into the legislation. 217 It is evident from a
review of the legislation as amended and reported out by the
House Intelligence Committee that these suggestions by the ACLU
had a direct impact upon the development of the legislation subse-
quent to the hearing.
John Shenefield also testified before the House Intelligence
Committee. This time he testified on behalf of the American Bar
Association (ABA). In that capacity, he testified concerning the
support of the ABA for both H.R. 3460 and H.R. 4431, with a
"slight personal preference for H.R. 4431 simply because it deals
precisely with the mechanics of judicial review."218 Later, in re-
sponse to a question by Chairman Edward Boland, Mr. Shenefield
stated that "the position of the ABA, however it is worded, is one
in favor of substantial deference to the DCI in his designation of
these files. 11219 When Representative Mazzoli asked Mr. Shenefield
the meaning of de novo review, he began his response by saying "it
is pretty much what the Congress wants it to be in a particluar
statute" and went on to testify that the position of the ABA was
that de novo review, as it is generally understood in the practice of
administrative law, is an improper standard of judicial review for
disputes arising under this legislation.22?
At the conclusion of the hearing there was little doubt in any-
one's mind that changes would be made in the judicial review sec-
tion. No one believed it would be easy and it, in fact, turned out to
be a tedious process of negotiations. In the middle of March, Rep-
resentatives Mazzoli, Boland, Robinson and Whitehurst introduced
H.R. 5164 (see Appendix 1) which incorporated the agreed upon
amended judicial review provisions. These provisions, except for
minor technical changes, were included in the amendment in the
nature of a substitute which was favorably reported out on April
11, 1984. The amended provisions largely included the suggested
changes made by the ACLU and, at the CIA's insistence, the pro-
217. Id.
218. Id. at 65.
219. Id. at 80-81.
220. Id. at 88.
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cedural provisions were included in the bill rather than set out in
legislative history. The requirement in subsection 701(d) of S. 1324
and H.R. 4431 for the promulgation of regulations implementing
the new operational file exemption authority was dropped from
H.R. 5164, since it was agreed that the CIA would have to craft
implementing regulations in any event. The judicial review provi-
sions in H.R. 5164 deleted the requirement in S. 1324 and H.R.
4431 that the court first review CIA compliance with its regula-
tions in the event of a complaint against the CIA of improper des-
ignation of operational files or improper placement of records
solely in designated files.
Given the changes that were made in the judicial review provi-
sions by the House Intelligence Committee, and the subsequent
enactment of these changes as part of H.R. 5164, the House Intelli-
gence Committee Report is a critical part of the legislative history
of the judicial review provisions and the congressional intent be-
hind the provisions. Therefore, the following discussion of the en-
acted judicial review provisions will focus on the explanation of
section 701(f) as set forth in the House Report.
The basic premise underlying subsection 701(f) is de novo judi-
cial review within a "precisely defined procedural framework .11211 It
provides that whenever a person alleges that the CIA has improp-
erly withheld records requested pursuant to FOIA because of fail-
ure to comply with the provisions of section 701, the review by the
courts shall be "under the terms set forth in section 552(a)(4)(B)
of Title 5, United States Code"222 and it then goes on to list seven
procedural provisions for de novo judicial review of actions taken
under section 701. Two witnesses before the Committee had testi-
fied to the effect that de novo judicial review was whatever the
Congress defined it to be. Thus, the Committee sought to maintain
the current standard of de novo review under FOIA while provid-
ing procedures to meet the CIA's fears of plaintiff access to entire
file systems and litigation burdens in excess of what they were cur-
rently facing in FOIA litigation.
The Committee determined that "de novo judicial review is es-
sential to ensure effective CIA implementation of the Freedom of
Information Act and to maintain public confidence in the imple-
221. House Intelligence Comm. Report, supra note 88, at 32.
222. Id.
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mentation of the Act."223 The report goes on to explain the intent
of the subsection by stating:
Thus, by virtue of subsection 701(f), CIA action to implement sec-
tion 701 will be subject to judicial review in the same manner as CIA
action [is subject] to judicial review currently, except to the extent
that paragraphs 701(f)(1) through (7) provide specific procedural
rules. Matters not addressed by paragraphs 701(f)(1) through (7)
will continue to be decided in accordance with subparagraph
552(a)(4)(B) of title 5 and case law thereunder which the courts
have developed and may in the future develop in light of reason and
experience. Nothing in H.R. 5164 in any way affects the law of
evidence .2111
The first procedural provision in paragraph 701(f)(1) requires ex
parte in camera review by the court of any properly classified in-
formation which the CIA files with, or produces for, the court. This
limitation of access to classified information pertaining to a case
is generally consistent with current practice under FOIA. However,
because issues arising under H.R. 5164 will be considered in the con-
text of CIA's most sensitive operational files, the Committee be-
lieved it appropriate to provide expressly in statute that classified
information involved in judicial review of CIA action under H.R.
5164 is for the judge's eyes only.22e
The second procedural provision in paragraph 701(f)(2) also
largely reflects current practice under FOIA. It requires a court,
"to the fullest extent practicable, [to] determine issues of fact
based on the sworn written submissions of the parties. 11226 Once
again, the Committee thought that it was necessary to put this
procedure into the statute because of the sensitivity of the opera-
tional files which would be involved in litigation under section 701.
The discussion of paragraph 701(f)(2) in the report goes on to ex-
plain that although the Committee expects in most cases for the
court to be able to determine factual issues on the basis of sworn
written submissions, it explicitly noted that a court may need to go
further in certain cases. "Thus, when necessary to decision, the
223. Id. at 32-33.
224. Id. at 33.
225. Id.
226. Id.
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court may go beyond sworn written submission to require the
Agency to produce additional information, such as live testimony,
or the court may examine the contents of operational files."227 The
ability of a court to obtain whatever information it needs for deci-
sion had been strongly urged by the ACLU.228
Paragraph 701(f)(3) requires a complainant who alleges im-
proper withholding of requested records because of improper
placement solely in exempted operational files to support his com-
plaint with a sworn written submission based on the complainant's
personal knowledge or otherwise admissible evidence. As the re-
port notes, the requirement of personal knowledge or otherwise ad-
missible evidence is consistent with Rule 56(e) of the Federal
Rules of Civil Procedure. In order to defend against such an allega-
tion, the Committee recognized that the CIA may have to search
exempted operational files for any responsive records and, should
records be located, determine whether they were properly filed.
The report then states the reasoning and intent behind the
paragraph:
Since one of the basic purposes of H.R. 5164 is to remove from the
CIA precisely this burden of searching exempted operational files,
the Committee believed that the CIA should not be forced by a
mere allegation of improper filing into a position of having to search
exempted operational files to defend a lawsuit. Accordingly, a com-
plainant alleging that requested records were impropery [sic] with-
held because of improper placement of records solely in exempted
operational files must support such an allegation with a sworn writ-
ten submission, based upon personal knowledge or otherwise admis-
sible evidence. When such an allegation of improper placement of
records is supported by such a submission based upon personal
knowledge or otherwise admissible evidence, the CIA must answer
and defend against the allegation. In responding to the complain-
ant's submission, the CIA may, of course, challenge its factual
basis.229
Paragraph 701(f)(4) deals with the procedural aspect of a com-
plaint that the CIA improperly withheld requested records because
of improper exemption of operational files. Subparagraph
701(f) (4) (A) provides that when a complaint of this nature is filed,
227. Id.
228. See supra text accompanying note 215.
229. House Intelligence Comm. Report, supra note 88, at 34.
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the CIA has the burden of sustaining its action pursuant to the
requirement of section 552(a)(4) of FOIA. The new subparagraph
(A) states that the CIA shall do this by sworn written submission
in which the CIA will demonstrate that the function of the ex-
empted operational files likely to contain responsive records meets
the functions set forth in the definition of operational files in sub-
section 701(b).
Subparagraph 701(f)(4)(B) recognizes the similarity of purpose
but difference in procedure between an allegation of improper ex-
emption of operational files and an allegation of improper place-
ment of records solely in exempted files. The subparagraph states
that unless a complainant disputes the CIA's sworn written sub-
mission regarding the function of the exempted operational files
involved with a sworn written submission based on personal
knowledge or otherwise admissible evidence, the CIA may not be
ordered by the court to review the records contained in any of the
exempted operational files in order to carry the burden of proof
required in subparagraph 701(f)(4)(A). Here again, one of the basic
purposes of the legislation, to relieve the CIA of the burden of
search and review of sensitive operational files, is achieved. The
Committee crafted the provision so that the CIA would not have to
undergo an extensive search and review of exempted operational
files unless the complainant had personal knowledge or otherwise
admissible evidence as to the allegation being made .230 The differ-
ence in procedure between an allegation of improper placement of
records under paragraph 701(f)(3) and an allegation of improper
exemption of files under paragraph 701(f)(4) is that, when alleging
improper placement of records solely in exempted operational files,
the complainant must support such an allegation with his sworn
written statement at the initial stage of the litigation for the CIA
to be required to answer the allegation. However, when the allega-
tion is improper exemption of operational files, the submission of a
sworn written statement by the plaintiff is not required before the
CIA has to respond and carry its burden of sustaining the propri-
ety of the exemptions under subparagraph 701(f) (4) (A). If, after
the filing of CIA's response by sworn written submission,
the complainant thereafter files a sworn written submission genu-
inely disputing the CIA's submission concerning the functions of the
files, the court may in its discretion order the CIA to review the
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contents of operational files in connection with determination of the
issue of improper exemption of the operational files. Of course, if the
CIA fails to sustain its burden to demonstrate the propriety of the
exemptions of the files in issue due to the insufficiency of its sworn
written submissions and any other submitted information, the court
will, under paragraph 701(f)(6), order the CIA to search such files
for responsive records, and the reference in subparagraph
701(f)(4)(B) to a complainant's submission would be inapplicable.23'
The House Report concludes its discussion by again affirming a
court's authority to review whatever CIA material it needs in order
to reach its decision, including the contents of exempted opera-
tional files likely to contain responsive documents, if the court
finds the written submissions to be inadequate.232
Paragraph 701(f)(5) limits discovery by both parties under rules
26 through 36 of the Federal Rules of Civil Procedure to requests
for admission under rules 26 and 36. In doing so, the Committee
responded to major litigation concerns of the CIA. Requests for
admission will be allowed because it was believed that they would
not pose a significant risk of compromise of classified information.
It is important to note that the limitation on discovery goes only to
litigation alleging improper placement of records solely in ex-
empted operational files, or improper exemption of operational
files under paragraphs 701(f)(3) and (f)(4), respectively. The report
gives the intent of the Committee concerning discovery on other
issues by stating it is not to be "either especially encouraged or
discouraged in any manner" but should "continue to be governed
by the practices developed by the courts under the judicial review
provision of the Freedom of Information Act."233 The report also
noted that this paragraph did not address access to information by
the court, and specifically stated that the paragraph did not pre-
clude complainants from suggesting to the court matters the court
should address and seek answers on from the CIA in deciding the
issues in the case.234
Paragraph 701(b)(6) is an important paragraph because it sets
forth the only available remedy if a court finds that the CIA has
failed to comply with section 701. Should it make such a finding,
231. Id. at 34-35 (emphasis added).
232. Id. at 35.
233. Id.
234. See id.
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the court must order the CIA "to search and review the appropri-
ate exempted operational file or files for the requested records and
make such records, or portions thereof, available in accordance
with the provisions of section 552 of title 5, United States Code
(Freedom of Information Act)."236 This certainly is an appropriate
remedy, since the heart of the issue in any of these cases is a com-
plainant who has been denied records requested pursuant to the
FOIA, and by this order the CIA will have to conduct the usual
search and review for requested records in otherwise exempted op-
erational files and make the appropriate releases. It is important to
understand that the remedy requires the requested records to be
released in accordance with FOIA, which includes the nine exemp-
tions in subsection 552(b) of FOIA. Therefore, an order to search
and review for responsive documents could result in the release of
varying amounts of information ranging from significant to slight,
if any, once the exemptions have been applied. The Committee ac-
cepted this as a reasonable remedy which served the interests of
the complainant and calmed the concerns of the CIA as to what
would occur if each court could fashion its own remedy in each
case. The report also noted that this exclusive remedy provision
did not affect the power of the court in other matters in the case,
such as punishing contempt or awarding attorney fees.231
The final procedural exception, 701(b)(7), was insisted upon by
the CIA. It provides that if at any time after the complaint is filed
the CIA agrees to search for the requested records in the appropri-
ate exempted operational files and process them under FOIA, the
court must dismiss the claims alleging failure to comply with sec-
tion 701. This is to ensure that once the CIA agrees to search for
and review records responsive to the complainant's request from
exempted operational files, the claims based upon failure to com-
ply with section 701 are dismissed rather than allowing the litiga-
tion to drag on or become enmeshed with ancillary claims.
4. Decennial Review
The new law also adds a new section 702 to the National Secur-
ity Act. Subsection 702(a) requires a review of the operational file
exemptions not less than once every ten years for the purpose of
determining whether any of the exemptions can be removed from
235. Id.
236. Id. at 35-36.
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any category of exempted files or any portion of a category.
The push for some kind of limitation on the duration of the op-
erational file exemptions came mainly from the historical commu-
nity. However, during the Senate Intelligence Committee consider-
ation of S. 1324, Senator Daniel Inouye also took up the issue of
the unlimited duration of the DCI file designations. In his pre-
pared statement for the hearing, Senator Inouye noted the lack of
any time limit and argued that "at some point the details of intelli-
gence operations-which ordinarily would not be within the scope
of legitimate public debate on national security-could become a
subject of public interest. 11237 He then suggested that the Commit-
tee consider some kind of time limitation on the designations.
In her testimony before the Senate Intelligence Committee, Dr.
Anna Nelson, representing the National Coordinating Committee
for the Promotion of History, discussed the problems with the lack
of any time limit from a historical viewpoint:
Experience has shown that information requiring absolute secrecy at
the time of its origin can be open to the public after passage of time
with absolutely no harm to the national security .... Since CIA
files have never been sent to the National Archives and since they
are quite unlikely to be sent in the foreseeable future, information
on foreign policy guidelines or planning in which the CIA partici-
pated will continue to be available only under the Freedom of Infor-
mation Act. Thus, a plan for eventual access to these documents is
absolutely essential .218
Dr. Nelson proposed a twenty-five or thirty year limitation on the
operational file exemptions from FOIA search and review. Another
time duration proposed was fifty years.239
In response to these concerns, one of the amendments to S. 1324
by the Senate Intelligence Committee was the addition of para-
graph 701(d)(2), which required the DCI to promulgate regulations
providing procedures and criteria for a review of the operational
file designations not less than once every ten years. It required
"consideration of the historical value or other public interest in the
subject matter . . . and the potential for declassifying a significant
237. Senate Intelligence Comm. Hearing, supra note 88, at 55.
238. Id. at 107.
239. See id. at 109-10 (letter to Chairman Goldwater from Samuel R. Gammon, Executive
Director of the American Historical Association).
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part of the information.17240 Paragraph 701(e)(2) was added to limit
any judicial review of CIA compliance with these regulations to a
determination as to "whether the Agency considered the criteria
set forth in such regulations."241
At the Senate Intelligence Committee markup of S. 1324, Sena-
tor Durenberger accurately described the decennial review provi-
sion as "a compromise. "242 The historical community pushed hard
for a fixed time limit on the duration of any operational file desig-
nation. The CIA, however, argued just as forcefully that it is im-
possible to know exactly how long information in various opera-
tional files will remain sensitive. So it was indeed a compromise
when all concerned parties agreed that a review of all the file desig-
nations for possible dedesignation of an entire category of opera-
tional files or a portion thereof would be undertaken no less than
every ten years.
In discussing this amendment before the House Intelligence
Committee, CIA Deputy General Counsel Mayerfeld pointed out
that the DCI is not required to wait the full ten years, but could
dedesignate a category or portion of a category of files after a much
lesser period of time if circumstances allowed.243 H.R. 3460 did not
contain a decennial review provision, but H.R. 4431 contained the
Senate amendments relating to decennial review. H.R. 5164 as in-
troduced, reported, and later enacted, contains in section 702 the
requirements for the decennial review of all the operational file ex-
ceptions. The requirements are the same as those contained in par-
agraph 70(d)(2) of S. 1324 and H.R. 4431, except the requirements
are not in the context of regulations and they are broken down into
subsections 702(a) and 702(b).244 Subsection 702(c), which contains
the judicial review provisions for this section, differs from that in
S. 1324 and H.R. 4431 since the requirement to promulgate regula-
tions on decennial review procedures was deleted. It also differs
from the judicial review of allegations concerning compliance with
section 701 because the review is not de novo in this particular
area. Instead, the court's review is limited to two issues: (1)
whether the Agency conducted the required decennial review; and
(2) whether the Agency, in fact, considered the criteria set forth in
240. Senate Intelligence Comm. Report, supra note 88, at 3.
241. Id. at 4.
242. Senate Intelligence Comm. Hearing, supra note 88, at 119.
243. Id. at 19.
244. House Intelligence Comm. Report, supra note 88, at 2-3.
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[Vol. 21:231
subsection 702(b) (historical or other public interest, etc.) in con-
ducting the review of the operational files.245 While the House In-
telligence Committee Report spells out how it expects the DCI to
apply the statutory criteria,246 the court cannot substitute its own
judgment as to whether a category of files or portion thereof con-
tinues to merit exemption. As Mark Lynch testified in the hearing
before the House Intelligence Committee, "This review . is
solely in the Agency's discretion. It is up to the Agency to decide
whether there is historical interest, and it is up to the Agency to
decide whether a significant portion of the file can be
declassified. ''247
The statute does not go on to spell out the appropriate remedy
for noncompliance with the decennial review provisions, but the
House Intelligence Committee Report does. Should the court find
the CIA in noncompliance with subsection 702(a) or 702(b), the
report lists the three exclusive remedies available to the court: (1)
order the CIA to undertake a search and review of the appropriate
exempted operational file or files and process any responsive
records for release under FOIA; (2) order the CIA to conduct the
review required by subsection 702(a); or (3) order the CIA to con-
sider the criteria specified in subsection 702(b) when reviewing ap-
propriate exempted operational files for the requested records. 141
Thus, a court is limited in its remedial orders for noncompliance
with any provision of section 701 or subsection 702(a) or (b) of the
Act.
5. Retroactivity
Section 4 of the Act provides for retroactivity of the provisions
in sections 701 and 702. Upon enactment, these provisions became
applicable to all pending FOIA requests to the CIA, even if they
had been made prior to the date of enactment. The new provisions
also apply to all civil actions filed against the CIA pursuant to
FOIA if they were not filed before February 7, 1984. Cases filed
prior to this date are not affected by the new Act.
A retroactivity provision was included in all the various House
and Senate bills. S. 1324 as introduced, amended, and reported out
245. Id.
246. Id. at 36.
247. House Intelligence Comm. Hearing, supra note 88, at 50.
248. Id. at 37.
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contained a retroactivity provision, but it applied to all pending
civil actions regardless of the date of filing. The impact of retroac-
tive application of the provisions was not discussed in any great
length during the Senate hearing. CIA Deputy General Counsel
Mayerfeld's response to Chairman Goldwater's inquiry as to the
effect of the provision on pending lawsuits indicates how difficult it
was for the CIA to attempt to estimate how many cases could be
affected and the extent of the impact on each case.248
During the House Intelligence Committee hearing Representa-
tive Mazzoli questioned both Mr. Mayerfeld and Mr. Lynch con-
cerning the impact of the retroactivity provision on pending FOIA
litigation.2110 Several plaintiffs had expressed concern as to the im-
pact of the provision on their individual lawsuits. It was during the
exchange with Mr. Mayerfeld that Representative Mazzoli sug-
gested a cutoff of the preceeding day for any retroactive impact on
litigation. This was the compromise ultimately adopted, incorpo-
rated into H.R. 5164, and later reported out and enacted. The
House Intelligence Committee Report explains that, as of the date
of enactment, the provisions of sections 701 and 702 apply to all
pending FOIA requests, whether in initial processing or adminis-
trative appeal. As to the February 7 date for pending FOIA litiga-
tion, the report states that this date was chosen "to avoid creating
an incentive for a race to the courthouse by FOIA complainants in
anticipation of the enactment of legislation modifying the applica-
tion of the FOIA to the CIA."261
VI. CONCLUSION
In enacting the Freedom of Information Act in 1966, Congress
provided for broad disclosure of agency records. It was recognized,,
however, that certain categories of information should not be dis-
closed through a FOIA response, and nine specific exemptions were
included in the statute. In exemption (b)(1), as amended, Congress
provided that FOIA would not apply to matters properly classified
in the interest of national security under criteria established by
Executive Order. Section (b)(3), as amended, exempts matters pro-
tected from disclosure by another statute where an agency has lim-
ited, if any, discretion in the matter.
249. Senate Intelligence Comm. Hearing, supra note 88, at 27-28.
250. Id. at 22-23, 53-54.
251. House Intelligence Comm. Report, supra note 88, at 38.
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In the case of the Central Intelligence Agency, provisions of two
statutes, section 102 of the National Security Act of 1947,262 pro-
tecting intelligence sources and methods and section 6 of the Cen-
tral Intelligence Agency Act of 1949,263 protecting information con-
cerning CIA organization and functions, have been held to qualify
as (b)(3) exemptions.
Experience has shown that applying FOIA to the CIA has been
difficult, as Congress might have expected. The principal difficul-
ties have arisen because FOIA does not adequately address legiti-
mate concerns for security, which are reflected in the CIA's organi-
zational structure and functions. The CIA restricts access to
information internally as well as externally. Agency files are com-
partmentalized, with access limited to those with a need to know.
Under FOIA the CIA is required to search and assemble informa-
tion which would otherwise remain compartmentalized, even
though it is often clear that most or all of the information falls
within one or more of the statutory exemptions. This process, par-
ticularly where CIA operational files are concerned, is both costly
and time consuming, creates problems of security, and is usually
futile, with no appreciable release of information.
The Central Intelligence Agency Information Act, enacted in De-
cember 1984, addresses many of the concerns of both the CIA and
those public interest organizations concerned with increasing pub-
lic access to intelligence information utilized by policymakers.
Such organizations include the American Civil Liberties Union,
which supported passage of the Act. By eliminating the need to
search exempted operational files, the new Act will facilitate more
timely CIA responses to other FOIA requests, a clear quid pro quo
documented in the legislative history. The CIA Information Act
provides for de novo judicial review of decisions to exempt opera-
tional files pursuant to the Act when there are substantial allega-
tions of non-compliance. And the new Act will at least partially
address the problem created for the CIA by the inaccurate percep-
tion, widely shared by some foreign intelligence services and indi-
viduals with whom the CIA must deal, that the United States is no
longer able to adequately protect sources and confidential informa-
tion from disclosure through litigation.
The question remains, however, whether it is necessary for the
252. 50 U.S.C. ? 403(d)(3).
253. 50 U.S.C. ? 403(g).
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United States to continue to include its intelligence service within
the operation of a general disclosure statute. We know of no other
country which does so. And it is clear from the legislative history
that Congress intended FOIA to serve primarily as an oversight
function. In the mid-1970's, however, both the House of Repre-
sentatives and the Senate established separate committees to over-
see the activities of the Intelligence Community, including the
CIA. These committees, the Senate Select Committee on Intelli-
gence and the House Permanent Select Committee on Intelligence,
are to be kept fully informed on all significant intelligence activi-
ties and have unlimited access to all CIA information. There can
be no serious question that these committees exercise full and con-
tinuous oversight, unlike the sporadic ad hoc process contemplated
by FOIA. It is one thing for United States citizens and permanent
resident aliens to inquire of the CIA whether it has information
concerning themselves. There is much to be said in a democracy
for an individual's right to know to the extent possible what per-
sonal information his government may hold. The CIA has indi-
cated its willingness to continue to respond as fully as possible to
such requests consistent with its statutory obligation to protect na-
tional security.
A different issue is presented, however, where the CIA remains
subject to FOIA requests from any person for information relating
generally to intelligence activities after Congress has created a sep-
arate and specialized oversight mechanism far more comprehensive
than anything contemplated in FOIA. In this sensitive area requir-
ing secrecy, it is Congress, rather than private organizations or in-
dividuals operating from their own motives, who can best oversee
the activities of an intelligence service in a systematic fashion.
There are sound reasons, apart from oversight and access to gen-
eral information, for providing a mechanism for releasing informa-
tion involved in the decision-making process once it has ceased to
be sensitive. Historians, writers, and academicians generally, to
name a few, may have legitimate interests in obtaining information
when access would not compromise national security. Whether
FOIA is the best mechanism to resolve these competing claims is a
question which should be more seriously addressed.
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APPENDIX
"TITLE VII-PROTECTION OF OPERATIONAL FILES OF
THE CENTRAL INTELLIGENCE AGENCY
"EXEMPTION OF CERTAIN OPERATIONAL FILES FROM SEARCH,
REVIEW, PUBLICATION, OR DISCLOSURE
"SEC. 701. (a) Operational files of the Central Intelligence
Agency may be exempted by the Director of Central Intelligence
from the provisions of section 552 of title 5, United States Code
(Freedom of Information Act) which require publication or disclo-
sure, or search or review in connection therewith.
"(b) For the purposes of this title, the term `operational files'
means-
"(1) files of the Directorate of Operations which document
the conduct of foreign intelligence or counterintelligence oper-
ations or intelligence or security liaison arrangements or infor-
mation exchanges with foreign governments or their intelli-
gence or security services;
"(2) files of the Directorate for Science and Technolo
gy
which document the means by which foreign intelligence or
counterintelligence is collected through scientific and technical
systems; and
"(3) files of the Office of Security which document investiga-
tions conducted to determine the suitability of potential for-
eign intelligence or counterintelligence sources;
except that files which are the sole repository of disseminated in-
telligence are not operational files.
"(c) Notwithstanding subsection (a) of this section, exempted
operational files shall continue to be subject to search and review
for information concerning-
"(1) United States citizens or aliens lawfully admitted for
permanent residence who have requested information on
themselves pursuant to the provisions of section 552 of title 5,
United States Code (Freedom of Information Act) or section
552a of title 5, United States Code (Privacy Act of 1974);
"(2) any special activity the existence of which is not ex-
empt from disclosure under the provisions of section 552 of
title 5, United States Code (Freedom of Information Act); or
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1987] FREEDOM OF INFORMATION 299
"(3) the specific subject matter of an investigation by the
intelligence committees of the Congress, the Intelligence Over-
sight Board, the Department of Justice, the Office of General
Counsel of the Central Intelligence Agency, the Office of In-
spector General of the Central Intelligence Agency, or the Of-
fice of the Director of Central Intelligence for any impropriety,
or violation of law, Executive order, or Presidential directive,
in the conduct of an intelligence activity.
"(d) (1) Files that are not exempted under subsection (a) of this
section which contain information derived or disseminated from
exempted operational files shall be subject to search and review.
"(2) The inclusion of information from exempted operational
files in files that are not exempted under subsection (a) of this sec-
tion shall not affect the exemption under subsection (a) of this sec-
tion of the originating operational files from search, review, publi-
cation, or disclosure.
from exempted operational files which have been
d
"
s
(3) Recor
disseminated to and referenced in files that are not exempted
under subsection (a) of this section and which have been returned
to exempted operational files for sole retention shall be subject to
search and review.
"(e) The provisions of subsection (a) of this section shall not be
superseded except by a provision of law which is enacted after the
date of enactment of subsection (a), and which specifically cites
and repeals or modifies its provisions.
"(f) Whenever any person who has requested agency records
under section 552 of title 5, United States Code (Freedom of Infor-
mation Act) alleges that the Central Intelligence Agency has im-
properly withheld records because of failure to comply with any
provision of this section, judicial review shall be available under
the terms set forth in section 552(a) (4) (B) of title 5, United
States Code, except that-
"(1) in any case in which information specifically authorized
under criteria established by an Executive order to be kept
secret in the interest of national defense or foreign relations is
filed with, or produced for, the court by the Central Intelli-
gence Agency, such information shall be examined ex parte, in
camera by the court;
"(2) the court shall, to the fullest extent practicable, deter-
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300 UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 21:231
mine issues of fact based on sworn written submissions of the
parties;
"(3) when a complainant alleges that requested records were
improperly withheld because of improper placement solely in
exempted operational files, the complainant shall support such
allegation with a sworn written submission, based upon per-
sonal knowledge or otherwise admissible evidence;
"(4) (A) when a complainant alleges that requested records
were improperly withheld because of improper exemption of
operational files, the Central Intelligence Agency shall meet its
burden under section 552(a)(4)(B) of title 5, United States
Code, by demonstrating to the court by sworn written submis-
sion that exempted operational file likely to contain responsive
records currently perform the functions set forth in subsection
(b) of this section; and
"(B) the court may not order the Central Intelligence
Agency to review the content of any exempted operational file
or files in order to make the demonstration required under
subparagraph (A) of this paragraph, unless the complainant
disputes the Central Intelligence Agency's showing with a
sworn written submission based on personal knowledge or oth-
erwise admissible evidence;
"(5) in proceedings under paragraphs (3) and (4) of this sub-
section, the parties shall not obtain discovery pursuant to
rules 26 through 36 of the Federal Rules of Civil Procedure,
except that requests for admission may be pursuant to rules
26 and 36;
"(6) if the court finds under this subsection that the Central
Intelligence Agency has improperly withheld requested records
because of failure to comply with any provision of this section,
the court shall order the Central Intelligence Agency to search
and review the appropriate exempted operational file or files
for the requested records and make such records, or portions
thereof, available in accordance with the provisions of section
552 of title 5, United States Code (Freedom of Information
Act), and such order shall be the exclusive remedy for failure
to comply with this section; and
"(7) if at any time following the filing of a complaint pursu-
ant to this subsection the Central Intelligence Agency agrees
to search the appropriate exempted operational file or files for
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FREEDOM OF INFORMATION 301
1987]
the requested records, the court shall dismiss the claim based
upon such complaint.
"DECENNIAL REVIEW OF EXEMPTED OPERATIONAL FILES
"SEC. 702. (a) Not less than once every ten years, the Director of
Central Intelligence shall review the exemptions in force under
subsection (a)of ction 701 of this e removed from any category of exempted opera-
tional mayb
files or any portion thereof.
"(b) The review required by subsection (a) of this section shall
include consideration of the historical value or other public inter-
est in the subject matter of the particular category of files or por-
tions thereof and the potential for de-classifying a significant part
of the information contained therein.
"(c) A complainant who alleges that the Central Intelligence
Agency has improperly withheld records because of failure to com-
ply with this section may seek judicial review in the district court
of the United States of the district in which any of the parties re-
side, or in the District of Columbia. In such a proceeding, the
court's review shall be limited to determining (1) whether the Cen-
tral Intelligence Agency has conducted the review required by sub-
section (a) of this section within ten years of enactment of this
title or within ten years after the last review, and (2) whether the
Central Intelligence Agency, in fact, considered the criteria set
forth in subsection (b) of this section in conducting the required
review."
such Act is
(b) The table of
contens at the the end thereof eginning of
following:
amended by adding at
"TITLE VII-PROTECTION CENTRAL INTELLIGENCE OIACGENCYLES OF
THE C
"Sec. 701. Exemption of certain operational files from search, re-
view, publication, or disclosure.
"Sec. 702. Decennial review of exempted operational files."
f Central Intelligence, in consultation with
SEC. 3. The Director o
ice Stat.PC_ the Librarian of Congress, and
T
n
e
of
H
s
h
__
ou
e
r
e
Permanent Select Committee on Intelligence of t
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302 UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 21:231
resentatives and the Select Committee on Intelligence of the Sen-
ate a report on the feasibility of conducting systematic review for
declassification and release of Central Intelligence Agency informa-
tion of historical value.
SEC. 4. The amendments made by section 2 shall be effective
upon enactment of this Act and shall apply with respect to any
requests for records, whether or not such request was made prior
to such enactment, and shall apply to all civil actions not com-
menced prior to February 7, 1984.
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 Approved For Release 2008/11/06: CIA-RDP89B00236R000200240001-5
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