A district court should only conduct an in camera examination to look for segregable non-exempt matter when the record is vague or the agency claims are overly sweeping or suggest bad faith.
An appellant challenged the Central Intelligence Agency's refusal to disclose documents regarding his prior investigation under various statutory exemptions. The court addresses whether the district court erred in refusing to conduct an in camera inspection of the withheld materials. The court holds that while the Freedom of Information Act permits in camera inspections, they are a last resort in national security situations. A district court should only conduct an in camera examination to look for segregable non-exempt matter when the record is vague or the agency's claims are overly sweeping or suggest bad faith. Because the agency provided detailed affidavits and there was no evidence of bad faith, the refusal to inspect was proper.
At page 697 Balancing national security and disclosure burdens in in camera review68 citing cases“few judges have the skill or experience to weigh the repercussions of disclosure of intelligence information.”
- Gov't Acct. Proj. v. U.S. Dep't of State, No. 2019-0449 (D.D.C. July 7, 2021).published(Few judges have the skill or experience to weigh the repercussions of disclosure of intelligence information.)
- Brennan Ctr. for Just. v. Dep't of State, No. 2015-2200 (D.D.C. Nov. 6, 2017).published([I]n camera proceedings are particularly a last resort in ‘national security’ situations.)
- Am. Civil Liberties Union v. Dep't of Def., 664 F. Supp. 2d 72 (D.D.C. 2009).published
- Joseph Ingle, Cross-Appellants v. Dep't of Just., Cross-Appellee, 698 F.2d 259 (6th Cir. 1983).published(In camera inspections are burdensome and are conducted without the benefit of an adversary proceeding.)
- Susan D. Goland & Patricia B. Skidmore v. Cent. Intelligence Agency, 607 F.2d 339 (D.C. Cir. 1978).published (in camera proceedings are particularly a last resort in ‘national security’ situations.)
- Brennan Ctr. for Just. v. Dep't of State, 296 F. Supp. 3d 73 (D.C. Cir. 2017).published“in camera proceedings are particularly a last resort in 'national security' situations.”
- Donoghue v. Nat'l Archives & Records Admin., No. 2023-0157 (D.D.C. Sept. 23, 2024).publishedAlthough district courts possess broad discretion in conducting in camera review, Carter v. Dep’t of Commerce, 830 F.2d 388, 392 (D.C Cir. 1987), such review is considered “a last resort in ‘national security’ situations[,]” Weissman v. CI…
- Rollins v. Cadence Educ., LLC, No. 2:22-cv-02157 (D.S.C. Oct. 28, 2022).Further, “[i]n camera inspections are burdensome and are conducted without the benefit of an adversary proceeding.” Weissman v. CIA, 565 F.2d 692, 697 (D.C.
- Univ. of Kentucky v. Lachin Hatemi, M.D., 636 S.W.3d 857 (Ky. Ct. App. 2021).publishedPayne/Univ. of Kentucky, 95-ORD-96, 1995 WL 455395 , at *4 (citing Weissman v. CIA, 565 F.2d 692, 697 (D.C.
- Jud. Watch, Inc. v. U.S. Dep't of Just., No. 2018-2107 (D.D.C. Nov. 25, 2020).publishedWeissman v. CIA, 565 F.2d 692, 697 (D.C.
Show 55 more citing cases
- McClanahan v. Dep't of Just., No. 2014-0483 (D.D.C. Sept. 1, 2016).publishedCir. 2009)); see also ACLU, 628 F.3d at 626 (“In camera inspection is particularly a last resort in national security situations like this case—a court should not resort to it routinely on the theory that it can’t hurt.” (internal quotatio…
- Henderson v. Off. of the Dir. of Nat'l Intelligence, 151 F. Supp. 3d 170 (D.D.C. 2016).publishedAgency, 608 F.2d 1381, 1387 (D.C.Cir.1979) (citing Weissman v. CIA, 565 F.2d 692, 697 (D.C.Cir.1977)).
- Life Extension Found., Inc. v. Internal Revenue Serv., 915 F. Supp. 2d 174 (D.C. Cir. 2013).published (It is only where the record is vague or the agency claims too sweeping or suggestive of bad faith that a District Court should conduct an in camera examination to look for segregable non-exempt matters.)
- Sensor Sys. Support, Inc. v. Fed. Aviation Admin., 851 F. Supp. 2d 321 (D.N.H. 2012).publishedIf the agency’s justification for the withholding is sufficient, the court “‘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.’ ” Bell, 563 F.2d at…
- Physicians for Human Rights v. U.S. Dep't of Def., 675 F. Supp. 2d 149 (D.D.C. 2009).publishedIn these situations, judges are mindful that issues of national security are within the unique purview of the executive branches, Zadvydas v. Davis, 533 U.S. 678, 696 , 121 S.Ct. 2491 , 150 L.Ed.2d 653 (2001); Center for National Security…
- Ctr. for Nat'l Sec. Studies v. U.S. Dep't of Just., 331 F.3d 918 (D.C. Cir. 2003).publishedSee, e.g., King, 830 F.2d at 217 (“the court owes substantial weight to detailed agency explanations in the national security context”); Car dels v. CIA, 689 F.2d 1100, 1104 (D.C.Cir.1982) (“Once satisfied that proper procedures have been…
- Ctr Natl Sec Studies v. DOJ, 331 F.3d 918 (D.C. Cir. 2003).publishedSee, e.g., King, 830 F.2d at 217 ("the court owes substantial weight to detailed agency explanations in the national security context"); Gardels v. CIA, 689 F.2d 1100, 1104 (D.C.Cir.1982) ("Once satisfied that proper procedures have been f…
- Nat'l Sec. Archive v. Fed. Bureau of Investigation, 759 F. Supp. 872 (D.D.C. 1991).publishedSee, e.g., Gardels v. CIA, 689 F.2d 1100, 1104 (D.C.Cir.1982); Hayden, 608 F.2d at 1387 ; Weissman v. CIA, 565 F.2d 692, 697 (D.C.Cir.1977).
- Jan-Xin Zang v. Fed. Bureau of Investigation, 756 F. Supp. 705 (W.D.N.Y. 1991).publishedMoreover, a district court should be generally reluctant to conduct an in camera examination since “[i]n camera inspections are burdensome and are conducted without the benefit of an adversary proceeding.” Weissman v. Central Intelligence…
- Alyeska Pipeline Serv. Co. v. U.S. Env't Prot. Agency, 856 F.2d 309 (D.C. Cir. 1988).publishedFurthermore, the District Court cited Gardels v. CIA, supra note 40, for the proposition that “[o]nce satisfied that proper procedures had been followed and that the information logically falls into the exemption claimed, the courts ‘need…
- The Washington Post Co. v. United States Dep't of State, 840 F.2d 26 (D.C. Cir. 1988).published See, e.g., CIA v. Sims, 471 U.S. 159, 176 , 105 S.Ct. 1881, 1891 , 85 L.Ed.2d 173 (1985); Weissman v. CIA, 184 U.S.App.D.C. 117 , 565 F.2d 692, 697 (1977).
- William J. Carter v. United States Dep't of Com., 830 F.2d 388 (D.C. Cir. 1987).publishedHayden, 608 F.2d at 1387 n. 28 (citing Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 836 (D.C.Cir.1979); Goland v. CIA, 607 F.2d 339, 351 (D.C.Cir.1978), cert. denied, 445 U.S. 927 , 100 S.Ct. 1312 , 63 L.Ed.2d…
- Cynthia King v. United States Dep't of Just., 830 F.2d 210 (D.C. Cir. 1987).published Miller v. Casey, supra note 57, 235 U.S.App.D.C. at 14 , 730 F.2d at 776 ; Weissman v. CIA, 184 U.S.App.D.C. 117, 122-123 , 565 F.2d 692, 697-698 (1977) 61 Miller v. Casey, supra note 57, 235 U.S.App.D.C. at 14 , 730 F.2d at 776 ; Lesar v.…
- Carleton J. Osborn & Janet M. Osborn v. Internal Revenue Serv., 754 F.2d 195 (6th Cir. 1985).publishedHowever, Judge Krupansky observed in Ingle that in camera reviews are not favored because they “are burdensome and are conducted without the benefit of an adversary proceeding.” 698 F.2d at 264 (quoting Weissman v. CIA, 565 F.2d 692, 697 (…
- Friedman v. Fed. Bureau of Investigation, 605 F. Supp. 306 (N.D. Ga. 1984).published See Hayden v. National Security Agency, supra; Weissman v. Central Intelligence Agency, 565 F.2d 692, 697, n. 10 (D.C.Cir.1977).
- Hoch v. Cent. Intelligence Agency, 593 F. Supp. 675 (D.D.C. 1984).publishedAs the Court noted in Weissman v. Central Intelligence Agency, 565 F.2d 692, 697-698 (D.C.Cir.1977): In every FOIA case, there exists the possibility that Government affidavits claiming exemptions will be untruthful.
- Ctr. for Auto Saf. v. Env't Prot. Agency, 731 F.2d 16 (D.C. Cir. 1984).published As we noted in Weissman v. CIA, 565 F.2d 692, 697 (D.C.
- Ellen L. Ray & William H. Schaap v. Stansfield Turner, Dir. Cent. Intelligence Agency, 587 F.2d 1187 (D.C. Cir. 1978).published
- Morton H. Halperin v. Cent. Intelligence Agency, 629 F.2d 144 (D.C. Cir. 1980).published
- Holy Spirit Ass'n for the Unification of World Christianity, Inc. v. United States Dep't of State, 526 F. Supp. 1022 (S.D.N.Y. 1981).published
- Demetracopoulos v. Fed. Bureau of Investigation, 510 F. Supp. 529 (D.D.C. 1981).published
- Lesar v. United States Dep't of Just., 636 F.2d 472 (D.C. Cir. 1980).published
- Mead Data Cent., Inc. v. United States Dep't of the Air Force, 566 F.2d 242 (D.C. Cir. 1977).published
- Joan C. Baez v. United States Dep't of Just., 647 F.2d 1328 (D.C. Cir. 1980).published
- Malizia v. United States Dep't of Just., 519 F. Supp. 338 (S.D.N.Y. 1981).published
- Navasky v. Cent. Intelligence Agency, 499 F. Supp. 269 (S.D.N.Y. 1980).published
- Hayden v. Nat'l Sec. Agency, 452 F. Supp. 247 (D.D.C. 1978).published
- Larson v. Dep't of State, 565 F.3d 857 (D.C. Cir. 2009).published
- Anthony F. Maroscia v. Edward H. Levi, 569 F.2d 1000 (7th Cir. 1977).published
- Eddie David Cox v. United States Dep't of Just., 576 F.2d 1302 (8th Cir. 1978).published
- Peter Hanlon Irons v. Griffin B. Bell, 596 F.2d 468 (1st Cir. 1979).published
- Sybil M. Alford v. Cent. Intelligence Agency, 610 F.2d 348 (5th Cir. 1980).published
- Nathan Gardels v. Cent. Intelligence Agency, 689 F.2d 1100 (D.C. Cir. 1982).published
- Diamond v. Fed. Bureau of Investigation, 707 F.2d 75 (2d Cir. 1983).published
- Ralph W. McGehee v. William Casey, Dir., Cia, 718 F.2d 1137 (D.C. Cir. 1983).published
- Doherty v. United States Dep't of Just., 775 F.2d 49 (2d Cir. 1985).published
- Pacheco v. Fed. Bureau of Investigation, 470 F. Supp. 1091 (D.P.R. 1979).published
- City of West Chicago v. United States Nuclear Regulatory Comm'n, 547 F. Supp. 740 (N.D. Ill. 1982).published
- Les Aspin v. United States Dep't of Def., 453 F. Supp. 520 (E.D. Wis. 1978).published
- Southam News v. U.S. Immigr. & Naturalization Serv., 674 F. Supp. 881 (D.D.C. 1987).published
- Am. Civil Liberties Union v. Dep't of Just., 548 F. Supp. 219 (D.D.C. 1982).published
- Am. Jewish Cong. v. Dep't of Treasury, 549 F. Supp. 1270 (D.D.C. 1982).published
- Founding Church of Scientology v. Levi, 579 F. Supp. 1060 (D.D.C. 1982).published
- Ferry v. Cent. Intelligence Agency, 458 F. Supp. 664 (S.D.N.Y. 1978).published
- Serbian E. Orthodox Diocese for the United States of Am. & Canada v. Cent. Intelligence Agency, 458 F. Supp. 798 (D.D.C. 1978).published
- Irons v. Levi, 451 F. Supp. 751 (D. Mass. 1978).published
- Moon v. Cent. Intelligence Agency, 514 F. Supp. 836 (S.D.N.Y. 1981).published
- Coastal States Gas Corp. v. Dep't of Energy, 495 F. Supp. 1172 (D. Del. 1980).published
- Diamond v. Fed. Bureau of Investigation, 532 F. Supp. 216 (S.D.N.Y. 1981).published
- Thorstad v. Cent. Intelligence Agency, 494 F. Supp. 500 (S.D.N.Y. 1979).published
- In Re Sealed Documents, 772 A.2d 518 (Vt. 2001).published
- Branch v. Fed. Bureau of Investigation, 658 F. Supp. 204 (D.D.C. 1987).published
- Porter v. United States Dep't of Just., 551 F. Supp. 595 (E.D. Pa. 1982).published
- Schaerr v. United States Dep't of Just., No. 2018-0575 (D.D.C. Jan. 28, 2020).published
- Carlisle Tire & Rubber Co. v. United States Customs Serv., 663 F.2d 210 (D.C. Cir. 1980).published
At page 694 Analyzing statutory exemptions to freedom of information act29 citing casesholding that the predecessors of the two statutes are “precisely the type of statutes comprehended by exemption (b)(3).
- Leopold v. Dep't of Just., 130 F. Supp. 3d 32 (D.D.C. 2015).published(holding that the predecessors of the two statutes are “precisely the type of statutes comprehended by exemption (b)(3).)
- Sack v. Cent. Intelligence Agency, 49 F. Supp. 3d 15 (D.D.C. 2014).publishedWeissman v. CIA 565 F.2d 692, 694 (D.C.Cir.1977).
- Nat'l Sec. Counselors v. Cent. Intelligence Agency, 960 F. Supp. 2d 101 (D.D.C. 2013).publishedAt the outset, one thing is clear: 50 U.S.C. § 403g is “precisely the type of statute[ ] comprehended by exemption (b)(3).” Weissman v. CIA 565 F.2d 692, 694 (D.C.Cir.1977).
- Schoenman v. Fed. Bureau of Investigation, No. 2004-2202 (D.D.C. Mar. 19, 2009).publishedIt is well established that these provisions of the National Security Act and the Central Intelligence Agency Act are “precisely the type of statutes comprehended by exemption 3.” Goland, 607 F.2d at 349 (quoting Weissman v. CIA, 565 F.2d…
- Enviro Tech Int'l, Inc. v. United States Env't Prot. Agency, 371 F.3d 370 (7th Cir. 2004).published The court distinguished Weissman v. C.I.A., 565 F.2d 692, 694-96 (D.C.
- Allen v. Dep't of Def., 658 F. Supp. 15 (D.D.C. 1986).published(holding that § 403(d)(3) is “precisely the type of statute[ ] comprehended by exemption (b)(3).)
- Nat'l Comm'n on Law Enf't & Soc. Just. v. Cent. Intelligence Agency, 576 F.2d 1373 (9th Cir. 1978).published
- Maurice E. Baker v. Cent. Intelligence Agency, 580 F.2d 664 (D.C. Cir. 1978).published
- Ellen L. Ray & William H. Schaap v. Stansfield Turner, Dir. Cent. Intelligence Agency, 587 F.2d 1187 (D.C. Cir. 1978).published
- John D. Marks v. Cent. Intelligence Agency, 590 F.2d 997 (D.C. Cir. 1978).published
Show 18 more citing cases
- Morton H. Halperin v. Cent. Intelligence Agency, 629 F.2d 144 (D.C. Cir. 1980).published
- Founding Church of Scientology of Washington, D. C., Inc. v. Donald T. Regan, Sec'y of the Treasury, 670 F.2d 1158 (D.C. Cir. 1981).published
- Holy Spirit Ass'n for the Unification of World Christianity, Inc. v. United States Dep't of State, 526 F. Supp. 1022 (S.D.N.Y. 1981).published
- Agee v. Cent. Intelligence Agency, 524 F. Supp. 1290 (D.D.C. 1981).published
- Medoff v. United States Cent. Intelligence Agency, 464 F. Supp. 158 (D.N.J. 1978).published
- Westchester Gen. Hosp. v. DEPT. OF HEALTH, ETC., 464 F. Supp. 236 (M.D. Fla. 1979).published
- Lamont v. Dep't of Just., 475 F. Supp. 761 (S.D.N.Y. 1979).published
- Demetracopoulos v. Fed. Bureau of Investigation, 510 F. Supp. 529 (D.D.C. 1981).published
- Halperin v. Cent. Intelligence Agency, 446 F. Supp. 661 (D.D.C. 1978).published
- Times Newspapers of Great Britain, Inc. v. Cent. Intelligence Agency, 539 F. Supp. 678 (S.D.N.Y. 1982).published
- Sims v. Cent. Intelligence Agency, 479 F. Supp. 84 (D.D.C. 1979).published
- Jaffe v. CIA, 573 F. Supp. 377 (D.D.C. 1983).published
- Agee v. Cent. Intelligence Agency, 517 F. Supp. 1335 (D.D.C. 1981).published
- Ctr. for Auto Saf. v. Dep't of Just., 576 F. Supp. 739 (D.D.C. 1983).published
- Lesar v. United States Dep't of Just., 636 F.2d 472 (D.C. Cir. 1980).published
- Pratt v. Webster, 673 F.2d 408 (D.C. Cir. 1982).published
- Westchester Gen. Hosp., Inc. v. Dep't of Health, Educ. & Welfare, 464 F. Supp. 236 (M.D. Fla. 1979).published
- Sam v. Cent. Intelligence Agency, 573 F. Supp. 377 (D.D.C. 1983).published
At page 698 Determining when in camera review is warranted27 citing cases“it is only where the record is vague or the agency claims too sweeping or suggestive of bad faith that a district court should conduct an in camera examination to look for segregable non-exempt matter.”
- Susan D. Goland & Patricia B. Skidmore v. Cent. Intelligence Agency, 607 F.2d 339 (D.C. Cir. 1978).published But compare Weissman v. CIA, supra, 184 U.S.App.D.C. 122 , 565 F.2d at 697 (“in camera proceedings are particularly a last resort in ‘national security’ situations.”). .
- Holt v. Dep't of Just., No. 4:22-cv-00605 (E.D. Ark. Sept. 24, 2024).Agency, 565 F.2d 692, 698 (D.C. Cir. 1977)).
- Buckley v. U. S. Dep't of Just., No. 1:19-cv-00319 (W.D.N.Y. Nov. 18, 2021). Insofar as Plaintiff urges the court to conduct an in camera review of the withheld documents “‘to look for segregable non-exempt matter,’” Plaintiff’s Memorandum at 4 (quoting Weissman v. Central Intelligence Agency, 565 F.2d 692, 698 (D.…
- Chevron U.S.A., Inc. v. United States, 80 Fed. Cl. 340 (Fed. Cl. 2008).published([W]here the record is vague or the agency claims too sweeping ... [the trial court] should conduct an in camera examination to look for severable non-exempt matter.)
- Ocean Conservancy v. Evans, 260 F. Supp. 2d 1162 (M.D. Fla. 2003).publishedSee Ingle v. Department of Justice, 698 F.2d 259, 267 (6th Cir.1983), overruled on other grounds by, United States Dep’t of Justice v. Landano, 508 U.S. 165 , 113 S.Ct. 2014 , 124 L.Ed.2d 84 (1993); see also Center for Auto Safety v. EPA,…
- Thomas G. Hopkins v. United States Dep't Of Hous. & Urban Dev., 929 F.2d 81 (2d Cir. 1991).publishedSec. 552 (a)(4)(B), to determine whether their factual and privileged contents are, as HUD avers, "inextricably intertwined." See Lead Indus., 610 F.2d at 88 (" '[W]here the record is vague or the agency claims too sweeping ... a District…
- Hopkins v. United States Dep't of Hous. & Urban Dev., 929 F.2d 81 (2d Cir. 1991).publishedMoreover, HUD has offered no details as to the contents of specific reports, but only asserted in a eonclusory fashion that any factual observations contained in the reports are “inextricably intertwined” with the reports’ privileged opini…
- Slesin v. Adm'r, Occupational Saf. & Health Admin., 644 F. Supp. 366 (S.D.N.Y. 1986).published“It is only where the record is vague or the agency claims too sweeping or suggestive of bad faith that a District Court should conduct an in camera examination to look for segregable non-exempt matter.” Weissman v. CIA, 565 F.2d 692, 698…
- Hoch v. Cent. Intelligence Agency, 593 F. Supp. 675 (D.D.C. 1984).publishedAs the Court noted in Weissman v. Central Intelligence Agency, 565 F.2d 692, 697-698 (D.C.Cir.1977): In every FOIA case, there exists the possibility that Government affidavits claiming exemptions will be untruthful.
- Ashley v. U.S. Dep't of Labor, 589 F. Supp. 901 (D.D.C. 1983).publishedThe court finds that in camera review of documents 11-18 and 20 is unnecessary, and holds that the agency has properly segregated factual material from these documents since the affidavits establish that portions have already been disclose…
Show 17 more citing cases
- Holy Spirit Ass'n for the Unification of World Christianity, Inc. v. United States Dep't of State, 526 F. Supp. 1022 (S.D.N.Y. 1981).published
- Lamont v. Dep't of Just., 475 F. Supp. 761 (S.D.N.Y. 1979).published
- Halperin v. Cent. Intelligence Agency, 446 F. Supp. 661 (D.D.C. 1978).published
- Mead Data Cent., Inc. v. United States Dep't of the Air Force, 566 F.2d 242 (D.C. Cir. 1977).published
- Malizia v. United States Dep't of Just., 519 F. Supp. 338 (S.D.N.Y. 1981).published
- Varona Pacheco v. Fed. Bur. of Investigation, 456 F. Supp. 1024 (D.P.R. 1978).published
- Hayden v. Nat'l Sec. Agency, 452 F. Supp. 247 (D.D.C. 1978).published
- Pacheco v. Fed. Bureau of Investigation, 470 F. Supp. 1091 (D.P.R. 1979).published
- Gerald Brown v. Fed. Bureau Of Investigation, 658 F.2d 71 (2d Cir. 1981).published
- Shafmaster Fishing Co. v. US, US COAST GUARD, 814 F. Supp. 182 (D.N.H. 1993).published
- Cliff v. Internal Revenue Serv., 496 F. Supp. 568 (S.D.N.Y. 1980).published
- Plunkett v. Dep't of Just., 924 F. Supp. 2d 289 (D.D.C. 2013).published
- Dbw Partners, LLC v. United States Postal Serv., No. 2018-3127, 2019 WL 5549623 (D.D.C. Oct. 28, 2019).published
- Graham v. Mukasey, 247 F.R.D. 205 (D.D.C. 2008).published
- Brown v. Fed. Bureau of Investigation, 658 F.2d 71 (2d Cir. 1981).published
- King v. United States Dep't of Just., 586 F. Supp. 286 (D.D.C. 1983).published
- Fensterwald v. United States Cent. Intelligence Agency, 443 F. Supp. 667 (D.D.C. 1977).published
At page 696 Analyzing CIA authority for domestic background investigations26 citing cases“it is clear from the legislative history that this section merely 'permits such in camera inspection at the discretion of the court.”
- Competitive Enter. Inst. v. United States Dep't of the Treasury, No. 2012-1838 (D.D.C. Apr. 2, 2018).publishedIn support, CEI points to Weissman v. CIA, which held that the CIA, which is statutorily prohibited from engaging in domestic law enforcement, could not invoke FOIA Exemption 7, which exempts records on law enforcement grounds. 565 F.2d 69…
- Hall v. Cent. Intelligence Agency, 268 F. Supp. 3d 148 (D.D.C. 2017).publishedCir. 1979), cert. denied, 446 U.S. 937 , 100 S.Ct. 2156 , 64 L.Ed.2d 790 (1980). “[W]hen the agency meets its burden [under FOIA] by means of affidavits, in -camera review is neither necessary nor appropriate.” Weissman v. CIA, 565 F.2d 69…
- Am. Civil Liberties Union v. Cent. Intelligence Agency, 892 F. Supp. 2d 234 (D.D.C. 2012).publishedCircuit required the CIA to disclose information about a CIA investigation into an American citizen residing in the United States. 565 F.2d 692, 696, 698 (D.C.Cir.1977).
- Hall v. Cent. Intelligence Agency, 881 F. Supp. 2d 38 (D.D.C. 2012).publishedAgency, 608 F.2d 1381, 1387 (D.C.Cir.1979), cert. denied, 446 U.S. 937 , 100 S.Ct. 2156 , 64 L.Ed.2d 790 (1980). “[W]hen the agency meets its burden [under FOIA] by means of affidavits, in camera review is neither necessary nor appropriate…
- Hall & Assocs. v. U.S. Env't Prot. Agency, 846 F. Supp. 2d 231 (D.D.C. 2012).publishedAgency, 608 F.2d 1381, 1387 (D.C.Cir.1979), cert. denied, 446 U.S. 937 , 100 S.Ct. 2156 , 64 L.Ed.2d 790 (1980). “[W]hen the agency meets its burden [under FOIA] by means of affidavits, in camera review is neither necessary nor appropriate…
- Lahr v. Nat'l Transp. Saf. Bd., 453 F. Supp. 2d 1153 (C.D. Cal. 2006).publishedIntelligence Agency, 565 F.2d 692, 696 (D.C.Cir.1977).
- Manna v. United States Dep't of Just., 832 F. Supp. 866 (D.N.J. 1993).publishedCircuit has stated, “ ‘when the agency meets its burden [under FOIA] by means of affidavits, in camera review is neither necessary nor appropriate.’ ” (quoting Weissman v. C.I.A., 565 F.2d 692, 696-97 (D.C.Cir.1977)).
- Ctr. for Auto Saf. v. Env't Prot. Agency, 731 F.2d 16 (D.C. Cir. 1984).published As we noted in Weissman v. CIA, 565 F.2d 692, 697 (D.C.
- John D. Marks v. Cent. Intelligence Agency, 590 F.2d 997 (D.C. Cir. 1978).published
- Holy Spirit Ass'n for the Unification of World Christianity, Inc. v. United States Dep't of State, 526 F. Supp. 1022 (S.D.N.Y. 1981).published
Show 16 more citing cases
- Lesar v. United States Dep't of Just., 636 F.2d 472 (D.C. Cir. 1980).published
- Ernest L. Bell, III v. United States of Am., 563 F.2d 484 (1st Cir. 1977).published
- Louis (Studs) Terkel v. Clarence Kelly, Edward Levi, the Fed. Bureau of Investigation, & the Dep't of Just., 599 F.2d 214 (7th Cir. 1979).published
- Lead Indus. Ass'n, Inc. v. Occupational Saf. & Health Admin., 610 F.2d 70 (2d Cir. 1979).published
- The Founding Church of Scientology of Washington, D. C., Inc. v. Nat'l Sec. Agency, 610 F.2d 824 (D.C. Cir. 1979).published
- Charles v. Stephenson v. Internal Revenue Serv., Atlanta, Georgia, & John W. Henderson, Dist. Dir., Irs Georgia, 629 F.2d 1140 (5th Cir. 1980).published
- Joan C. Baez v. United States Dep't of Just., 647 F.2d 1328 (D.C. Cir. 1980).published
- Military Audit Proj., Felice D. Cohen, Morton H. Halperin v. William Casey, Dir. of Cent. Intelligence, 656 F.2d 724 (D.C. Cir. 1981).published
- Michael Kuzma v. Internal Revenue Serv. & Marshall P. Cappelli, Dist. Dir., 775 F.2d 66 (2d Cir. 1985).published
- Brush Wellman, Inc. v. Dep't of Labor, 500 F. Supp. 519 (N.D. Ohio 1980).published
- Lesar v. United States Dep't of Just., 455 F. Supp. 921 (D.D.C. 1978).published
- Malizia v. United States Dep't of Just., 519 F. Supp. 338 (S.D.N.Y. 1981).published
- Varona Pacheco v. Fed. Bur. of Investigation, 456 F. Supp. 1024 (D.P.R. 1978).published
- Navasky v. Cent. Intelligence Agency, 499 F. Supp. 269 (S.D.N.Y. 1980).published
- Diamond v. Fed. Bureau of Investigation, 487 F. Supp. 774 (S.D.N.Y. 1980).published
- Hayden v. Nat'l Sec. Agency, 452 F. Supp. 247 (D.D.C. 1978).published
At page 695 Limiting cia's domestic investigative powers under national security act4 citing casesCongress wisely sought from the outset to make sure that when it released the CIA genie from the lamp, the Agency would be prevented from using its enormous resources and broad delegation of power to place United States citizens living at home under surveillance and scrutiny.
- Stonehill v. Cent. Intelligence Agency, No. 2020-3327 (D.D.C. Aug. 18, 2025).published(Congress wisely sought from the outset to make sure that when it released the CIA genie from the lamp, the Agency would be prevented from using its enormous resources and broad delegation of power to place United State…)
- Mead Data Cent., Inc. v. United States Dep't of the Air Force, 566 F.2d 242 (D.C. Cir. 1977).published
- LaRouche v. Kelley, 522 F. Supp. 425 (S.D.N.Y. 1981).published
- Effect of Court of Appeals Decision on CIA Activities (OLC 1977).published
184 U.S. App. D.C. at 122 cited at this page1 citing case
- Hayden v. Nat'l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381 (D.C. Cir. 1979).published
v.
CENTRAL INTELLIGENCE AGENCY Et Al., Defendants-Appellees
Opinion for the Court filed by District Judge GESELL.
GESELL, District Judge:This is an appeal arising under the Freedom of Information Act, 5 U.S.C. §§ 552 et seq. Appellant Weissman challenges an order of the District Court granting summary judgment in favor of the Central Intelligence Agency which refused to turn over certain documentary material to Weissman claiming that disclosure was not required because of three exemptions found in § 552(b) of the Act. The appeal focuses on the scope of these statutory exemptions as well as upon the procedures by which the availability of such FOIA exemptions is to be determined at the trial court level. [1]
In February, 1975, Weissman wrote the CIA expressing his alarm at news stories suggesting that investigative activities of the Agency had been directed against left-of-center political activists. Stating that he had been active in political reform during the 1960’s, he requested “to see all files completed on me by the CIA.” The CIA advised that “Unbeknown to Mr. Weissman he was considered for employment by this agency in the 1950’s . . . .” A substantial amount of documentary material was thereafter released to Weissman. These papers disclosed that from 1958 to 1963 Weissman, without his knowledge or permission, was under a periodic but continuing investigation by the Agency for potential use as a witting agent to provide information about foreign activities in which he might participate, such as the VII Youth Festival held in Vienna in 1959. Detailed[*694] background checks were made, and provisional followed by final covert security approvals were granted. Although deemed qualified for undercover assignment, Weiss-man was never approached and he did not at any time seek employment with the Agency.
All or part of over 50 documents developed by the CIA during its investigation were withheld. Since much of this material gathered by the Agency was classified as confidential, contained information concerning agents’ names, sources and procedures, or was considered part of an investigation compiled for law-enforcement purposes, the Agency in particularizing each document withheld claimed exemption under 5 U.S.C. § 552(b)(1), (3) or (7). After Weissman brought suit to compel disclosure, the Agency moved for summary judgment. Upon hearing the motion and considering the supporting affidavits, the District Court accepted the Agency’s position. This appeal followed.
When Congress enacted the FOIA it recognized the obvious difficulties that would inevitably arise when disclosure was sought of documents touching on sensitive matters affecting law enforcement and national security. The Act, however, gave only general guidance in seeking to protect material of this type, and it has been left to the courts to develop standards and procedures in the light of experience with this delicate area.
The exemptions claimed in this instance, as set forth at 5 U.S.C. § 552(b), remove from the disclosure obligations of the FOIA matters that are
(b)(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of the national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;
(b)(3) Specifically exempted from disclosure by statute;
(b)(7) investigatory records compiled for law enforcement purposes [subject to some conditions].
I. EXEMPTION UNDER 5 U.S.C. § 552(b)(3)
In this instance, the Agency placed principal reliance on exemption (b)(3). [2] The Central Intelligence Act of 1949 provided at 50 U.S.C. § 403g that “the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency” shall be protected from disclosure. In addition, Section 403(d)(3) of this Title provides, “That the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure.” The directive that the CIA protect its sources is especially broad, protecting not only the name of the source but, to the extent the Agency considers reasonable to protect the source, the nature and type of information supplied. While appellant vigorously asserts that § 403(d)(3) is not a statute within the exemption, the legislative history clearly demonstrates [3] that both § 403(d)(3) and § 403g are precisely the type of statutes comprehended by exemption (b)(3). Appellant’s contention, moreover, has now been rejected. Phillippi v. Central Intelligence Agency, 178 U.S.App.D.C. 243, 546 F.2d 1009 (1976), n. 14.
II. EXEMPTION UNDER 5 U.S.C. § 552(b)(7)
The Agency also withheld material pursuant to exemption (b)(7) which shields from disclosure certain records compiled for law-enforcement purposes. This claim to exemption is misplaced, as appellant strenuously contends.
[*695] To be sure, it appears from the sparse record available that the CIA investigation of Weissman, an American citizen, may well have been a genuine attempt to determine whether he was a safe candidate for recruitment by the Agency. Accepting this as a fact, however, it is clear that the CIA nonetheless conducted an intermittent but extensive investigation over a five-year period of an American citizen living at home, without his knowledge. It cannot be contended that this activity was for law-enforcement purposes.
The National Security Act of 1947, which created the CIA [4] and empowered it to correlate and evaluate intelligence relating to the national security, specifically provided that the “Agency shall have no police, subpena, law-enforcement powers, or internal-security functions.” 50 U.S.C. § 403(d)(3). This directive was intended, at the very least, to prohibit the CIA from conducting secret investigations of United States citizens, in this country, who have no connection with the Agency.
The Agency has been given far-reaching authority to gather information and to conduct intelligence activities abroad. These vital functions are liberally financed and concern national security. It is generally accepted that the Agency, in both its reporting and operational functions, serves an essential role in the development and implementation of foreign policy. The Agency, of course, proceeds in secret. Many of its operations are covert, and since the stakes are high few are in a position to know or to question the manner by which it carries out its work. It has the power that flows from money and stealth. Congress was well aware such activities create a potential for abuse, and chose to limit the Agency’s activities to intelligence gathering abroad. It was unwilling to make it a policeman at home, or to create a conflict between the CIA and the FBI.
The legislative history of the CIA enabling act is sketchy, but these concerns are abundantly clear. Congress wisely sought from the outset to make sure that when it released the CIA genie from the lamp, the Agency would be prevented from using its enormous resources and broad delegation of power to place United States citizens living at home under surveillance and scrutiny. It denied the Agency police or internal-security functions to obviate the possibility that overzealous representatives of the CIA might pry into the lives and thoughts of citizens whose conduct or words might seem unconventional or subversive. Thus, during floor debates in the House, for example, a member of the Committee which considered the legislation stated:
This Central Intelligence Agency is supposed to collect military intelligence abroad, but we want to be sure it cannot strike down into the lives of our own people here. So, we put in a provision that “the Agency shall have no police, subpena, law-enforcement powers, or internal-security functions.”
93 Cong.Rec. 9444 (1947) (remarks of Congressman Judd).
Congress had a realistic fear of secret police that would move inward rather than outward, and assume prerogatives never intended. While the 80th Congress obviously, and for good reason, wished to protect America’s security, it had no intention of making the mistake of creating an American “Gestapo.” [5] As the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (“Church Committee”) recently reported, “By codifying the prohibition against police and internal security functions, Congress apparently felt that it had protected the[*696] American people from the possibility that the CIA might act in any way that would have an impact upon their rights.” [6]
In spite of this congressional awareness and insistence, the CIA hopes to find support for this type of investigation into a citizen’s background by reference to 50 U.S.C. § 403(d)(3), which, while denying the CIA any internal security functions, also states . . the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure.” This provision contains no grant of power to conduct security investigations of unwitting American citizens. As the Rockefeller Commission noted, [7] and as the Church Committee stated, the provision
was not viewed as conveying new authority to investigate; rather it charged the Director of Central Intelligence Agency with responsibility to use the authority which he already had to protect sensitive intelligence information. S.Rep.No.94-755, supra, Book I at 139.
Whatever may be the power to check on its own personnel, [8] we are obliged to agree with the Church Committee when it commented on § 403(d)(3):
Given the prohibition against internal security functions, it is unlikely that the provision was meant to include investigations of private American nationals who had no contact with the CIA, on the grounds that eventually their activities might threaten the Agency.
S.Rep.No.94-755, supra, Book I, 139. See also, Report to the President, supra, at 165-166.
Thus, the Agency’s interpretation of the sources and methods proviso is misplaced. A full background check within the United States of a citizen who never had any relationship with the CIA is not authorized, and the law-enforcement exemption is accordingly unavailable. The Agency simply has no authority in the guise of law enforcement to make such a background cheek of Weissman with a view to his possible recruitment.
III. IN CAMERA INSPECTION
Finally, appellant contends that by refusing to conduct an in camera examination of documents before sustaining Agency claims of exemption under sections (b)(1), (3) and (7), the District Court failed to follow proper procedures. He asserts that an in camera inspection of documents withheld under (b)(1) was especially necessary because the affidavits were not sufficiently detailed to permit scrutiny of the Agency claims. He also urges that the in camera procedure was required to check the truthfulness of Agency claims under each exemption, and to conduct a line-by-line analysis of documents withheld under each exemption to cull out any non-exempt material.
While the FOIA itself now provides for in camera inspections, 5 U.S.C. § 552(a)(4)(B), [9] it is clear from the legislative history that this section merely “permit[s] such in camera inspection at the discretion of the Court.” H.R.Rep.No.93-1380, Conference Rep. 93d Cong., 2d Sess.,’ 9 (1974). As Congress indicated, before the Court orders in camera inspection, the[*697] Government should be given the opportunity to establish by means of testimony or detailed affidavits that the documents are clearly exempt from disclosure.
Ibid. See also, S.Rep.No.93-854, 93rd Cong., 2d Sess. 15 (1974).
We adopted this view in Vaughn v. Rosen, which specified that where the public record is sufficient to permit a legal ruling, the inquiry need go no further, 157 U.S.App.D.C. 340, 484 F.2d 820, 824 (1973); see also, Environmental Protection Agency v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), and indicated in Phillippi v. Central Intelligence Agency, supra, that in camera proceedings are particularly a last resort in “national security” situations.
The reluctance of Congress and the Courts to require in camera inspection is well founded. In camera inspections are burdensome and are conducted without the benefit of an adversary proceeding. Vaughn, supra, at 824. A denial of confrontation creates suspicions of unfairness and is inconsistent with our traditions.
Additional considerations apply to in camera proceedings under exemption (b)(1) where classification of documents is involved. New judges have the skill or experience to weigh the repercussions of disclosure of intelligence information. Congress was well aware of this problem when it amended the FOIA to permit in camera inspection in exemption (b)(1) cases. [10] If exemption is claimed on the basis of national security the District Court must, of course, be satisfied that proper procedures have been followed, and that by its sufficient description the contested document logically falls into the category of the exemption indicated. In deciding whether to conduct an in camera inspection it 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.
In every FOIA case, there exists the possibility that Government affidavits claiming exemptions will be untruthful. Likewise, in every FOIA case it is possible that some bits of non-exempt material may be found among exempt material, even after a thorough agency evaluation. If, as appellant argues, these possibilities are enough automatically to trigger an in camera investigation, one will be required in every FOIA case. [11] This is clearly not what congress intended, nor what this Court has found to be necessary.
When Congress amended the FOIA in 1974 to provide that any reasonably segregable non-exempt portion of an agency record should be released, 5 U.S.C. § 552(b) (Pub.L. 93-502 § 2(c)), this addition was meant to endorse judicial decisions holding that Congress did not intend to exempt an entire document “merely because it contained some confidential information.” [12][*698] But, neither the legislative history, nor court decisions, have indicated that it was appropriate for the District Courts to undertake a line-by-line analysis of agency records in each case. This Court has noted the difficulty of such a task, and held that such an investment of judicial energy was not justified, or even permissible. Vaughn v. Rosen, supra, at 825. “The burden has been placed specifically by statute on the Government.” Ibid. It is only where the record is vague or the agency claims too sweeping or suggestive of bad faith that a District Court should conduct an in camera examination to look for segregable non-exempt matter.
The CIA dealt with the instant request in a conscientious manner. It disclosed much material, it released additional material as the result of an administrative appeal, and it came forward with newly discovered documents as located. Agency documents have been released to plaintiff-appellant on four separate occasions. [13] The Agency submitted affidavits summarizing each document, or portion of a document withheld, and indicated the rationale for each claimed exemption. It filed an indexed description of all material withheld, and supported the withholding by explicit affidavits. No discovery was attempted; plaintiff simply contested the adequacy of the affidavits. There is no reason, on this record, to presume bad faith on the part of the CIA. In this instance, the CIA released some documents in their entirety and portions of 22 others. From the deletions in the partially released documents, and the Agency explanations for these deletions, the District Court could well determine that the Agency was not improperly withholding information. Such an examination of a full record can take the place of a partial, or sampling, in camera inspection. See Ash Grove Cement Co. v. FTC, 167 U.S.App.D.C. 249, 511 F.2d 815 (1975). The District Court was correct in refusing to conduct an in camera inspection to check the veracity of Agency claims or to search for non-exempt material and no abuse of discretion has been shown. Where it is clear from the record that an agency has not exempted whole documents merely because they contained some exempt material, [14] it is unnecessary and often unwise for a court to undertake such an examination.
IV. CONCLUSION
As the above discussion indicates, the trial judge was well within his discretion in refusing to order an in camera examination. The Agency claims for exemptions under section (b)(1) and (b)(3) were properly sustained. However, exemptions under section (b)(7) are not available to the CIA except under special collateral circumstances. [15] There are 29 documents where claims for exemption under various subsections of (b)(7) were made. While in most instances these claims were coupled with claims under (b)(3), it is still necessary to remand the case to the District Court to determine whether all or part of any of the 29 documents should be released. The Agency may well be able to show that the claim of exemption (b)(3) alone, or coupled with other exemptions, is sufficient to protect the document against disclosure even in the absence of (b)(7), but this cannot be ascertained on the basis of the papers brought here on the appeal.
[*699] The judgment below is affirmed in all respects except as it relates to documents claimed to be exempt under section (b)(7), other than Nos. 12, 44 and 46, and the case in this respect alone is remanded to the District Court for further proceedings consistent with this opinion.
. Appellees sought by tardy motion to have this appeal dismissed. The trial judge originally made a brief oral ruling and later, at defendants-appellees’ request, particularized his findings of fact and conclusions of law, document-by-document, issued in conformity with Schwartz v. IRS, 167 U.S.App.D.C. 301, 511 F.2d 1303 (1975). Under all the circumstances the trial judge did not abuse his discretion in granting plaintiff-appellant’s unopposed motion for extension. See Fed.R.Civ.P. 52(b); Fed.R.App.P. 4(a)(2). Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962). The motion to dismiss is without merit.
. This exemption has been modified effective March, 1977, but the Court is concerned here only with the present statutory language.
. The Conference Report on the 1974 Amendments to the FOIA notes, “. . intelligence sources and methods (50 U.S.C. § 403(d)(3) and (g)), for example, may be classified and exempted under section 552(b)(3) of the Freedom of Information Act.” H.R.Rep. 93-1389, 93d Cong., 2d Sess., 12 (1974); see also S.Rep.No. 93-854, 93d Cong., 2d Sess., 16 (1974).
. Under a Presidential Directive, 11 Fed.Reg. 1339 (Feb. 1946), the Agency had temporarily operated as the Central Intelligence Group (CIG).
. The fear of creating a secret police and the intention to avoid such an error pervaded congressional consideration of the new intelligence agency. See, e. g., 93 Cong.Rec. 9413 (1947) (remarks of Congressman Harness); Senate Armed Services Committee, Hearings on S. 758, 80th Cong., 1st Sess. 497 (1947) (remarks of General Vandenberg); House Expenditure in the Executive Department Committee, Hearings on H.R. 2319, 80th Cong., 1st Sess. 127, 438, 479-481 (1947).
. S.Rep.No.94-755, 94th Cong., 2d Sess. Book I, 138 (1974).
. Report to the President, Commission on CIA Activities Within the United States, 53 (1975).
. In its recommendations to the President, the Rockefeller Commission suggested that the CIA be given power to investigate persons “being considered for affiliation” with the CIA, “or others who require clearance by the CIA to receive classified information.” Report to the President, supra, at 66. In its Recommendations, the Church Committee suggested that the CIA not be allowed to investigate through surveillance any American national not affiliated with the CIA; but should be allowed to collect information through confidential interviews about “individuals or organizations being considered by the CIA as potential sources of information. . . S.Rep.No.94-755, supra, at Book II, 302-303.
. “[T]he court . . . may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) . . ..” § 552(a)(4)(B) (emphasis added).
. Claims under (b)(1), like other claims of exemption, are subject to de novo review in the District Court. See 5 U.S.C. § 552(a)(4)(B). However, the legislative history of the 1974 amendments makes clear that, in evaluating (b)(1) claims under this standard, “substantial weight” is to be accorded to detailed agency affidavits setting forth the basis for exemption:
[T]he conferees recognize that the Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse effects might occur as a result of public disclosure of a particular classified record. Accordingly, the conferees expect that the Federal courts, in making de novo determinations in section 552(b)(1) cases under the Freedom of Information Act, will accord substantial weight to an agency’s affidavit concerning the details of the classified status of the disputed record. S.Rep. 93-1200, 93d Cong., 2d Sess. 12 (1974), U.S.Code Cong. & Admin.News, 1974, p. 6290.
See also Senator Muskie’s remarks during the floor debate preceding .the Senate’s vote to override President Ford’s veto of the amendments. 120 Cong.Rec. 36870 (1974) (“The judge would be required to give substantial weight to the classifying agency’s opinion in determining the propriety of the classification.”)
. It should be noted that this is no small matter. The number of FOIA complaints filed in the District of Columbia tripled this past year and totalled 183 cases. It should also be noted that 30 percent of the closed cases are appealed to this Court. (The national average rate of appeals for all cases is nine percent.) In camera inspection in each FOIA case would create a staggering burden both for this Court and the District Court.
. Grumman Aircraft Engineering Corp. v. Renegotiation Bd., 138 U.S.App.D.C. 147, 149, 425 F.2d 578, 580 (1970), quoted in S.Rep.No.93-854, 93d Cong., 2d Sess. 31 (1974).
. On May 16, 1975, portions of two documents were released. On July 3, 1975, additional portions of those two documents were released, and portions of seven more documents that had been discovered after the initial Agency reply. On January 8, 1976, portions of nine additional documents and one entire document were released. On January 29, 1976, 15 more documents, or portions thereof, including some portions previously deleted, were released.
. In some limited instances a stronger standard may apply. See, e. g., Cuneo v. Schlesinger, 157 U.S.App.D.C. 368, 484 F.2d 1086 (1973), where the issue was whether “secret law” was being withheld. However, we do not deal with that issue here.
. For example, in the case of three documents, Nos. 12, 44 and 46, an exemption under (b)(7) was claimed to protect the names of FBI law enforcement officers. The exemption was properly claimed in this instance in conjunction with the claims for exemption of the same three documents under exemptions (b)(1) and (3).