Ellen L. Ray and William H. Schaap v. Stansfield Turner, Director Central Intelligence Agency , 587 F.2d 1187 ( 1978 )

Opinion

Per Curiam.

Opinion filed by WRIGHT, Chief Judge, concurring in the remand.

PER CURIAM:

This appeal presents the question whether the district court erred in dismissing a lawsuit under the Freedom of Information Act (FOIA) upon the basis of affidavits supplied by an official of the Central Intelligence Agency (CIA). We find there was error and remand. '

I. PROCEDURAL BACKGROUND OF LITIGATION.

Plaintiffs (appellants) Ellen Ray and William Sehaap sent identical letters to the CIA requesting “a copy of any file you may have on me.” The CIA replied that while it did not have files on plaintiffs, there were documents in CIA files that referred to plaintiffs. The CIA refused to release those documents, and after administrative appeals were exhausted, plaintiffs brought this action under the FOIA. The CIA subsequently released portions of the withheld documents, and the government then moved for summary judgment, relying principally on affidavits of one Eloise Page. The critical affidavit, set out in the appendix, purports to describe the documents at issue and the grounds for the government’s claims of exemption.¹

The district court granted the government’s motion for summary judgment and denied plaintiffs’ motion for in camera inspection.² It found that the withheld documents were exempt from disclosure under the FOIA on the basis of Exemption 1 alone, Exemption 3 alone, or the two exemptions coupled together. As to Exemption 1, 5 U.S.C. § 552(b)(1),³ the court found that the affidavit showed that the documents were properly classified under Executive Order 11,652, 3 C.F.R. 339 (1974). As to Exemption 3, 5 U.S.C. § 552(b)(3),⁴ the court found that the affidavits stated that the release of the information could reasonably be expected to reveal intelligence sources and methods as well as organizational data, and that 50 U.S.C. §§ 403(d)(3), 403g justified the CIA invocation of Exemption 3.

In a key passage, the district court’s opinion stressed that “there has been no credible challenge to the veracity of these averments [in the affidavits] and nothing appears to raise the issue of bad faith.” In denying in camera inspection, the district court relied on Weissman v. CIA, 184 U.S.App.D.C. 117, 565 F.2d 692 (1977). Specifically, the court found with respect to Exemption 1 that

[t]he affidavits in this record are specific and detailed. The record further indicates that the Agency dealt with plaintiffs’ requests in a conscientious manner and released segregable portions of the material. No abuse of discretion has been shown.

Memorandum Opinion at 3.

Regarding Exemption 3, it ruled:

With respect to documents withheld under exemption 3, in camera inspection is seldom, if ever, necessary or appropriate. * * * Exemption 3 differs from other FOIA exemptions in that its applicability does not depend on the factual content of specific documents.

Id. at 4.

On appeal, the government insists that the pertinent documents are exempt under Exemption 1 and are also exempt under Exemption 3.⁵ Plaintiffs assert that discovery and in camera inspection by the district court was required, because documents 2 through 10 contain segregable material that is not exempt, and because neither document 2 nor document 10 is exempt under Exemption 1.

II. RELEVANT CONSIDERATIONS IN FOIA CASES INVOLVING NATIONAL SECURITY ISSUES.

The FOIA was passed in 1966, as an amendment to the Administrative Procedure Act, in order to increase disclosure of government information to the American people. Agencies were required to disclose all records that did not come within one of nine explicit exemptions specified by Congress.⁶ In the event of agency nondisclosure, the Act provided for court review. In any such case, “the court shall determine the matter de novo . . . and the burden is on the agency to sustain its action.”⁷

A. Judicial Interpretations and Legislative Modifications.

In EPA v. Mink, 410 U.S. 73, 81-84, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), the Court considered Exemption 1, which at that time covered matters “specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy.” 5 U.S.C. § 552(b)(1) (1970). It held that a court should not review the substantive propriety of the classification or go behind an agency affidavit stating that the requested documents had been duly classified pursuant to Executive order.⁸ The Court said that “Congress chose to follow the Executive’s determination in these matters,” and in camera inspection to test the propriety of the classification was not authorized. 410 U.S. at 81, 93 S.Ct. at 833.

In 1974 Congress overrode a presidential veto and amended the FOIA for the express purpose of changing this aspect of the Mink case.⁹ Exemption 1 was modified to exempt only matters that are “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1) (1976).

Furthermore, the 1974 revision changed the FOIA language describing the role of a reviewing court considering any claim of exemption. It provided that “the court shall determine the matter de novo, and 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) of this section, and the burden is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B) (1976). The Conference Report accompanying the amendments explained that “[w]hile in camera examination need not be automatic, in many situations it will plainly be necessary and appropriate.” S.Rep. No. 93-1200, 93d Cong., 2d Sess. 9 (1974), U.S.Code Cong. & Admin.News 1974, p. 6287.

Exemption 3 originally exempted matters “specifically exempted from disclosure by statute.” 5 U.S.C. § 552(b)(3) (1970). In FA A Administrator v. Robertson, 422 U.S. 255, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975), the Court held that a statute could “specifically exempt” matters from disclosure even if the statute gave an agency broad discretion to determine whether the information should be withheld.¹⁰ Concerned about excessive agency discretion, Congress in 1976 passed an amendment to change the result reached in Robertson. Exemption 3 now authorizes nondisclosure of matters “specifically exempted from disclosure by statute 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 withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3) (1976).

B. The Nature of De Novo Review.

Procedures to be observed

In Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820 (1973) cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974), this court sought to cope with the difficulty of providing de novo review of exemptions claimed by the government. It initiated procedures designed to mitigate the administrative burden on the courts and ensure that the burden of justifying claimed exemptions would in fact be borne by the agencies to whom it had been assigned by Congress.

The court took its cue from a portion of the Supreme Court’s Mink opinion that was not overruled by Congress — the portion discussing how a court should proceed when there is a factual dispute concerning the nature of the materials being withheld.¹¹ “Expanding” on the Supreme Court’s “outline,” the court established the following procedures: (1) A requirement that the agency submit a “relatively detailed analysis [of the material withheld] in manageable segments.” “[C]onclusory and generalized allegations of exemptions” would no longer be accepted by reviewing courts. 157 U.S. App.D.C. at 346, 484 F.2d at 826. (2) “[A]n indexing system [that] would subdivide the document under consideration into manageable parts cross-referenced to the relevant portion of the Government’s justification.” Id. 157 U.S.App.D.C. at 347, 484 F.2d at 827. This index would allow the district court and opposing counsel to locate specific areas of dispute for further examination and would be an indispensible aid to the court of appeals reviewing the district court’s decision. (3) “[A]dequate adversary testing” would be ensured by opposing counsel's access to the information included in the agency’s detailed and indexed justification and by in camera inspection, guided by the detailed affidavit and using special masters appointed by the court whenever the burden proved to be especially onerous. Id. 157 U.S.App.D.C. at 348, 484 F.2d at 828.¹²

In proposing the 1974 amendments, the Senate Committee outlined the ruling in Vaughn and added, “The committee supports this approach. . . . ”¹³

The judicial function as emphasized by 1974 amendments

In some of the decisions involving national security issues, there has been confusion about the nature of the evidentiary burdens and the scope of the district judge’s discretion. This uncertainty is due to a misunderstanding of the’ legislative history of the 1974 amendments.¹⁴ There were differences in 1974 between the Senate Committee and the House, between the Senate and its Committee, and between the Legislative and Executive Branches. For an authoritative exposition of the purpose and effect of the 1974 amendments, it suffices for present purposes to quote a few key paragraphs of the Conference Committee report: ¹⁵

The conference substitute follows the Senate amendment, providing that in determining de novo whether agency records have been properly withheld, the court may examine records in camera in making its determination under any of the nine categories of exemptions under section 552(b) of the law. In Environmental Protection Agency v. Mink, et al., 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), the Supreme Court ruled that in camera inspection of documents withheld under section 552(b)(1) of the law, authorizing the withholding of classified information, would ordinarily be precluded in Freedom of Information cases, unless Congress directed otherwise. H.R. 12471 amends the present law to permit such in camera examination at the discretion of the court. While in camera examination need not be automatic, in many situations it will plainly be necessary and appropriate. Before the court orders in camera inspection, the Government should be given the opportunity to establish by means of testimony or detailed affidavits that the documents are clearly exempt from disclosure. The burden remains on the Government under this law.

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When linked with the authority conferred upon the Federal courts in this conference substitute for in camera examination of contested records as part of their de novo determination in Freedom of Information cases, this clarifies Congressional intent to override the Supreme Court’s holding in the ease of E.P.A. v. Mink, et al., supra, with respect to in camera review of classified documents.

However, the conferees recognize that the Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects might occur as a result of public disclosure of a particular classified 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 substantial weight to an agency’s affidavit concerning the details of the classified status of the disputed record.

The legislative history underscores that the intent of Congress regarding de novo review stood in contrast to, and was a rejection of, the alternative suggestion proposed by the Administration and supported by some Senators: that in the national security context the court should be limited to determining whether there was a reasonable basis for the decision by the appropriate official to withhold the document.¹⁶ In proposing a “reasonable basis” standard, the Administration and supporting legislators argued that de novo responsibility and in camera inspection could not properly be assigned to judges, in part because of logistical problems, and in part because of their lack of relevant experience and meaningful appreciation of the implications of the material involved.¹⁷ Those who prevailed in the legislature both resisted the Administration proposal on first consideration and voted to override President Ford’s veto of the bill containing the provision for de novo review and in camera inspection. They stressed the need for an objective, independent judicial determination, and insisted that judges could be trusted to approach the national security determinations with common sense, and without jeopardy to national security.¹⁸ They 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 re-suit of public disclosure of a particular classified record.”¹⁹

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 exemption. (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 classified status of the disputed record.” ²⁰ (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.²¹ 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 procedures have been followed, and that by its sufficient description the contested document logically falls into the category of the exemption indicated.”²²

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 furtherance of national security interests.

In camera inspection

In the case at bar, the district court observed: “With respect to documents withheld under exemption 3, in camera inspection is seldom, if ever, necessary or appropriate.”²³ The legislative history does not support that conclusion. Congress left the matter of in camera inspection to the discretion of the district court, without any indication of the extent of its proper use. The ultimate criterion is simply this: Whether the district judge believes that in camera inspection is needed in order to make a responsible de novo determination on the claims of exemption.

In camera inspection requires effort and resources and therefore a court should not resort to it routinely on the theory that “it can’t hurt.” When an agency affidavit or other showing is specific, there may be no need for in camera inspection.

On the other hand, when the district judge is concerned that he is not prepared to make a responsible de novo determination in the absence of in camera inspection, he may proceed in camera without anxiety that the law interposes an extraordinary hurdle to such inspection. The government would presumably prefer in camera inspection to a ruling that the case stands in doubt or equipoise and hence must be resolved by a ruling that the government has not sustained its burden.

The issue of bad faith merits a word. The memorandum of the district court noted that there was no evidence of bad faith on the part of the Agency’s officials. Where the record contains a showing of bad faith, the district court would likely require in camera inspection. But the government’s burden does not mean that all assertions in a government affidavit must routinely be verified by audit. Reasonable specificity in affidavits connotes a quality of reliability. When an affidavit or showing is reasonably specific and demonstrates, if accepted, that the documents are exempt, these exemptions are not to be undercut by mere assertion of claims of bad faith or misrepresentation.

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 responsibility for a de novo determination. Government officials who would not stoop to misrepresentation may reflect an inherent tendency to resist disclosure, and judges may take this natural inclination into account.

III. RULINGS FOR THE CASE AT BAR

Two affidavits were executed by Eloise Page, Chief, Operations Staff of the Directorate of Operations of the CIA. The first is a general statement about the dangers at large of disclosure, background and local color rather than any attempt to link these concerns with specific documents. It is of little aid in the task of deciding whether the nine specific documents now sought come within the claimed exemptions.

Documents 2-6

Page’s second affidavit, set out in the appendix, purports to link specific exemptions to specific documents. A glaring defect is that it lumps the exemptions together and fails to identify whether different exemptions are claimed as to different parts of each document. The statement for document 2 reads:

This document is a three-page memorandum the subject of which is “Rennie Davis and Friends.” It is essentially the debriefing report of a sensitive intelligence source. The majority of the information concerns individuals other than the plaintiffs.

This document has been denied in its entirety, primarily to protect intelligence sources and methods since the release of any meaningful portion would disclose the identity of the source, and further, to protect cryptonyms, names of CIA personnel and CIA organizational data. Thus exemptions (b)(1), (b)(3) and (b)(6) apply.

The statement for documents 3, 4 and 5 reads:

These documents are one-page cables from an overseas CIA installation which advise Headquarters of the receipt of documents and information from a foreign intelligence service and which concern the plaintiffs and other individuals. They are denied in their entirety pursuant to Freedom of Information Act exemptions (b)(1), (b)(3) and (b)(6).

In reviewing the judgment on documents 2-6, we encounter a complex of difficulties. Exemption 3 permits a withholding under the provisions of 50 U.S.C. § 403g (1970), which specifies that “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 intelligence sources and methods from unauthorized disclosure, the Agency shall be exempted from . . . the provisions of any . . . law which require the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency . . . .” Goland v. CIA, No. 76-1800, slip op. at 16-17 (D.C.Cir., May 23,1978); cf. Weissman v. CIA, 184 U.S.App.D.C. 117,119, 565 F.2d 692,694 (1977). However, in Goland, the affidavit demonstrated “in nonconclusory and detailed fashion” (slip op. at 21), that the deleted material disclosed intelligence sources and methods. The CIA’s affidavit as to documents 2-6 is not a specific presentation such as that in Goland. The statement that the release of any meaningful portion of document 2 would disclose the identity of a “sensitive intelligence source” has some particularity, but it runs into a failure to address specifically whether the disclosure of substantive information may be possible without the disclosure of source, and if not why not.

As to Exemption 1, the information that document 2 relates to “Rennie Davis and Friends,” might be some indication that it was reasonable for the official involved to have classified it in the first instance. But that mere reference is not enough information to permit a judge to make an independent ruling that the classification was proper.

Finally, what overhangs and in a sense pervades this case, more vivid as to document 2 but implicit as to the other documents, is the real possibility that what animates the CIA’s broadsword withholding is the fact that the documents contain commentary on a group of persons, with the CIA’s position being that Exemption 6 prohibits any revelation from its files about individuals other than appellants. We discuss Exemption 6 further below. It suffices here to say that we do not have any analysis of Exemption 6 by the district court, and the problem is complex.

Overall, we have a critical problem of segregability, that some portion of the document(s) may be exempt, but that the FOIA might contemplate disclosure in part. The difficulty arises from the CIA’s proffer of multiple exemptions for each withheld document, and is maintained by the district court’s conclusory rulings.

The reviewing court should not be required to speculate on the precise relationship between each exemption claim and the contents of the specific document. The district judge is not called upon to take on the role of censor — going through a line-by-line analysis for each document and removing particular words. If, however, the problematic material appears in a particular place or places that can be manageably identified, indexing is not to be bypassed because it is something of a chore.

Documents 7-9

Page’s affidavit describes document 7 as follows:

Document No. 7 is a three-page cable from CIA Headquarters to the Director, FBI, which provides information on an individual under investigation for the bombing of the United States Capitol on March 1, 1971. It is the report of a highly sensitive, foreign intelligence source.

Page’s affidavit identifies documents 8 and 9 as intra-agency cables concerning the same matter. It continues: “Each of these documents contains a single, peripheral and non-substantive reference to the Plaintiff Schaap. In each case, that portion has been provided to the plaintiff.”

Documents 7 — 9 identify a particular subject: information concerning an individual under investigation for the 1971 bombing of the Capitol. There are manifest disclosure problems under Exemption 6 in view of the privacy interests of that individual, as well as under Exemptions 1 and 3. However, the CIA affidavit does not specifically claim that all of the documents (7-9) are exempt under Exemption 6, and that there are no other portions that may be reasonably seg-regable. And the district court's ruling was solely on Exemptions 1 and 3.

Apparently the only direct reference to Schaap in these three documents is the material that CIA has furnished to him, a bare mention of his name and address in document 7, plus the information in documents 8 and 9 that he is a partner in a law firm that has represented the Black Panther party.

The CIA does not take the position that the furnishing of these references is fully responsive to Schaap’s request. It has properly refrained from an approach whereby FOIA applications are read technically and narrowly, like a common law pleading.

However, the CIA again has not been responsive to the requirement that it provide specific affidavits that segregate each of its claims. The “exemption by document” approach has been rejected by our opinions, notably Vaughn, 157 U.S.App.D.C. at 345-46, 484 F.2d at 825-26, and Mead Data Central, Inc. v. Dept. of the Air Force, 184 U.S.App.D.C. 350, 367-70, 566 F.2d 242, 259-62 (1977). The agency may not rely on that approach even in a national security context. The agency must provide a reasonable segregation as to the portions of the document that are involved in each of its claims for exemption. As indicated in Mead, it is important that the affidavit indicate the extent to which each document would be claimed as exempt under each of the exemptions. The courts cannot meaningfully exercise their responsibility under the FOIA unless the government affidavits are as specific as possible.

Document 10

The withholding of document 10 cannot be disposed of on the basis of Exemptions 1 and 3, as the district court held. The government concedes that some of the information in that document is not within the ambit of those exemptions. It argues instead that there is justification for withholding under Exemptions 6 and 7. However, the district court did not rule on these exemptions. We think that their applicability should be considered in the first instance by the district court and remand for that purpose.

The applicability of Exemption 6 depends, as the Supreme Court, held in Department of Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976), on a particularized balancing of privacy interests and the “'public’s right to governmental information.’ ” Id. at 372, 96 S.Ct. 1592 (quoting S.Rep. No. 813 89th Cong., 1st Sess. 9 (1965)). An Exemption 6 claim was raised by the CIA for all the documents sought by plaintiffs and its position was set forth in a paragraph of the first Page affidavit.²⁴ The first sentence of that paragraph suggests that the CIA conducts its own balancing test to determine whether the disclosure of the names of others would involve a “clearly unwarranted invasion of privacy.” The remainder of the paragraph tends to indicate that the CIA has a broad policy that prohibits disclosures from CIA files of references to individuals other than the applicant as an invasion of privacy. The point is made that many of these references are innocent yet would reflect disparagingly on the individuals due to the climate of opinion concerning the CIA and its activities. This application of Exemption 6 would be more far-reaching than our conclusion that privacy interests protected by Exemption 6 are brought into play by a stigmatizing disclosure of another individual as linked to a bombing of the Capitol.

The problem requires a balancing analysis. Before the district court considers the matter on remand, it will be able to obtain clarification as to CIA policy and approach. * * * * * *

We remand for reconsideration of the CIA’s exemption claims in light of clarification of the affidavits and for further proceedings not inconsistent with this opinion.

So ordered.

APPENDIX

SUPPLEMENTAL AFFIDAVIT

Eloise Page, being first duly sworn, deposes and says:

1. I am Chief, Operations Staff of the Directorate of Operations of the Central Intelligence Agency (CIA). I have personal knowledge of the facts set forth herein, which were obtained by me in my official capacity.

2. Pursuant to the above-captioned litigation, I have again examined documents number 1 through 10 and make the following additional statements as to their contents, the information withheld and the reasons therefore.

Document Statement Number

1 This document is a one-page dispatch from an overseas CIA installation to Headquarters. It transmitted a United States Army report which has been referred to the Department of the Army for their action and direct response to the plaintiff.

This document has been provided to the plaintiffs with only minor deletions. The material deleted includes the location of CIA overseas installations, cryptonyms, a pseudonym and CIA organizational data. Thus exemptions (b)(1) and (b)(3) apply.

2 This document is a three-page memorandum the subject of which is “Rennie Davis and Friends.” It is essentially the debriefing report of a sensitive intelligence source. The majority of the information concerns individuals other than the plaintiffs.

This document has been denied in its entirety, primarily to protect intelligence sources and methods since the release of any meaningful portion would disclose the identity of the source, and further, to protect cryptonyms, names of CIA personnel and CIA organizational data. Thus exemptions (b)(1), (b)(3) and (b)(6) apply.

Document Statement Number

3, 4, 5 These documents are one-page cables from an overseas CIA installation which advise Headquarters of the receipt of documents and information from a foreign intelligence service and which concern the plaintiffs and other individuals.

They are denied in their entirety pursuant to Freedom of Information Act exemptions (b)(1), (b)(3) and (b)(6).

6 This document is a one-page dispatch which transmits to Headquarters the above-described matter received from a foreign intelligence service.

It is denied in its entirety pursuant to Freedom of Information Act exemptions (b)(1), (bX8) and (b)(6).

7, 8, 9 Document No. 7 is a three-page cable from CIA Headquarters to the Director, FBI, which provides information on an individual under investigation for the bombing of the United States Capitol on March 1, 1971. It is the report of a high sensitive, foreign intelligence source.

Document No. 8 is a two-page cable from an overseas CIA installation to CIA Headquarters concerning the same matter.

Document No. 9 is a two-page cable from CIA Headquarters to the same overseas CIA installation concerning the same matter.

Each of these documents contains a single, peripheral and non-substantive reference to the Plaintiff Schaap. In each case, that portion has been provided to the plaintiff. The remainder of each document may not be released pursuant to Freedom of Information Act exemptions (b)(1), (b)(3) and (b)(6).

10 This document consists of a one-page memorandum which transmits a copy of a notebook containing a list of names. This list was secured by the United States Customs Service from an individual at a border checkpoint in a search incident to his arrest for importation of narcotics into the United States. The memorandum was provided to the Plaintiff Schaap with only minor deletions (names of CIA employees, organizational data concerning the CIA, name of a United States Customs Agent). Only that portion of the list containing plaintiff’s name was provided. Thus exemptions (b)(1), (b)(3), (b)(6) and (b)(7)(F) apply.

/s/ Eloise Page Eloise Page

1 . The affidavit states that document 1 has been provided to plaintiffs with only minor deletions that include location of CIA overseas installations, cryptonyms [words used as a substitute for the identity of a person or activity], a pseudonym and CIA organizational data. Plaintiffs do not appeal from the district court’s refusal to order the CIA to release the remainder of document 1. This appeal involves documents 2-10.

2 . Memorandum Opinion, filed January 25, 1977, Appendix at 65.

3 . 5 U.S.C. § 552(b)(1) (1976) provides:

(b) This section 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

4 . 5 U.S.C. § 552(b)(3) (1976) provides:

(b) This section does not apply to matters that are—

* * * * *

(3) 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 withholding or refers to particular types of matters to be withheld ....

5 . The government acknowledges an exception for two items in document 10 that it claims are exempt under Exemptions 6 and 7(F). On remand, the district court is to make rulings with regard to these exemptions.

6 . 5 U.S.C. § 552(c) (1976); EPA v. Mink, 410 U.S. 73, 79, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973).

7 . 5 U.S.C. § 552(a)(3) (1976). Courts were given authority to review de novo any denial of access “in order that the ultimate decision as to the propriety of the agency’s action is made by the court and [to] prevent [review] from becoming meaningless judicial sanctioning of agency discretion.” S.Rep. No. 813, 89th Cong., 1st Sess. 8 (1965).

8 . Mink involved a request for documents prepared by various government officials for the President in connection with a scheduled nuclear test. The documents were withheld under Exemptions 1 and 5. Those seeking the information had not disputed the government’s claim that proper classification procedures had been followed, 410 U.S. at 84, 93 S.Ct. 827, and the Court held that the substantive propriety of the classification had been committed by Congress to Executive discretion. The Court therefore reversed the order of the court of appeals that the district court examine the documents in camera and release any segregable nonsecret portions. With regard to Exemption 5 the Court held that a reviewing court should allow an agency the opportunity to prove by detailed affidavits and other evidence that material withheld is exempt before requiring in camera inspection. The Court accordingly modified the “unnecessarily rigid” remand ordered by the court of appeals in order to provide the government a chance to meet its burden. Id. at 92-93, 93 S.Ct. 827.

9 . S.Rep. No. 93-1200, 93d Cong., 2d Sess. 11-12 (1974), U.S.Code Cong. & Admin.News 1974, p. 6267; see Pub.L. 93-502, §§ 1-3, 88 Stat. 1561 (1974).

10 . The statute relied on by the government in Robertson empowered the Administrator or the Board of the Federal Aviation Administration, upon written application of “any person”, to withhold agency records if “in their judgment, a disclosure of such information would adversely affect the interests of such person and is not required in the interest of the public.” 49 U.S.C. § 1504 (1976).

11 . See ERA v. Mink, 410 U.S. at 92-94, 93 S.Ct. at 838-839. At the time this court decided Vaughan Congress had not yet enacted the 1974 amendments to the FOIA, and both aspects of the Mink case were still good law.

12 . A remaining problem noted by the court in Vaughn — the failure of the district court’s opinion to reveal the court’s reasoning — was dealt with in Schwartz v. IRS, 167 U.S.App. D.C. 301, 305, 511 F.2d 1303, 1307 (1975). Schwartz held that the district court had abused its discretion by not granting a plaintiff/appellant’s request for a clarification of the legal grounds of its opinion affirming the agency’s refusal to disclose information sought under the FOIA. See also Fisher v. Renegotiation Board, 153 U.S.App.D.C. 398, 401, 473 F.2d 109, 112 (1972); Bristoi-Meyers Co. v. FTC, 138 U.S.App.D.C. 22, 25, 424 F.2d 935, 938, cert. denied, 400 U.S. 824, 91 S.Ct. 46, 27 L.Ed.2d 52 (1970); Ackerly v. Ley, 137 U.S.App.D.C. 133, 138-39, 420 F.2d 1336, 1341-42 (1969).

13 . S.Rep. No. 93-854, 93d Cong., 2d Sess. 15 (1974).

14 . The original decision in Weissman v. CIA, 184 U.S.App.D.C. 117, 565 F.2d 692 (1977), contained views from the legislative history on the scope and methods of review in national security cases that had been expressly rejected in the actual statute passed over President Ford’s veto. See Weissman v. CIA, D.C.Cir. No. 76-1566, decided Jan. 6, 1977, slip op. at 10-11 & n.10. The opinion was corrected by amendment. See Order, D.C.Cir. No. 76-1566, April 4, 1977. Unfortunately, some courts, including the district court in this case, relied on the original version of Weissman before the amendments were published.

The original opinion in Weissman stated that Congress had recognized the lack of judicial expertise by indicating “that the court was not to substitute its judgment for that of the agency.” Weissman v. CIA, supra, slip op. at 10 (preamendment version). In fact, Congress expressly refused to approve such deference.

In Bell v. United States, 563 F.2d 484 (1st Cir. 1977), the First Circuit relied in part on a portion of a Senate Report, S.Rep. No. 93-854, 93d Cong., 2d Sess. 16 (1974), that describes a provision in the Senate Bill as reported from committee that was later deleted on the floor of the Senate because it was considered too deferential to the agencies. To the extent that any language in Bell is inconsistent with the approach outlined in this opinion, we must respectfully decline to depart from our understanding of the mandate of Congress.

The result in Bell may be justified on the particular circumstances of that case. It was a suit to release over 500,000 documents gathered by the Allied Intelligence Service during World War II under the ULTRA program. The Secretary of Defense had exempted these documents from the automatic declassification schedule pending completion of a specific program designed to review individually the classification of all the documents by 1980.

15 . S.Rep. No. 93-1200, 93d Cong., 2d Sess. 9, 12 (1974), U.S.Code Cong. & Admin.News 1974, pp. 6267, 6287, 6290.

16 . See, e. g., Message from President Gerald R. Ford Vetoing H.R. 12471, H.Doc. No. 93-383, 93d Cong., 2d Sess. (1974):

As the legislation now stands, a determination by the Secretary of Defense that disclosure of a document would endanger our national security would, even though reasonable, have to be overturned by a district judge who thought the plaintiffs position just as reasonable. Such a provision would violate constitutional principles, and give less weight before the courts to an executive determination involving the protection of our most vital national defense interests than is accorded determinations involving routine regulatory matters.

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 reasonable 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.

17 . See, e. g., 2 Freedom of Information, Executive Privilege, Secrecy in Government: Hearings before the Subcomm. on Administrative Practice and Procedure and Separation of Powers of the Senate Comm, on the Judiciary and the Subcomm. on Intergovernmental Relations of the Senate Comm, on Government Operations, 93d Cong., 1st Sess. 218-220 (1973) (testimony of Attorney General Richardson); letter from Malcolm D. Hawk, Acting Assistant Attorney General, to Hon. Chet Holifield, Chairman, House Comm, on Governmental Operations, Feb. 20, 1974, reprinted in Staffs of Senate Comm, on the Judiciary and House Comm, on Government Operations, Freedom of Information Act and Amendments of 1974 (P.L. 93-502); Source Book: Legislative History, Texts, and Other Documents (Comm. Print 1975) (hereinafter cited as Source Book); letter from L. Niederlehner, Acting General Counsel, Department of Defense, to Hon. Chet Holifield, Feb. 20, 1974, reprinted in Source Book, supra, at 143-144.

18 . See 120 Cong.Rec. 36870 (1974) (Sen. 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 arguments presented by both sides.

On the contrary, if we constrict the manner in which courts perform this vital review function, we make the classifiers themselves privileged officials, immune from the accountability necessary for Government to function smoothly.

Id. at 17030 (Sen. Ervin):

The court ought not to be required to find anything except that the matter affects or does not affect national security. If a judge does not have enough sense to make that kind of decision, he ought not to be a judge. We ought not to leave that decision to be made by the CIA or any other branch of the Government.

Id. at 17028 (Sen. Chiles):

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 mistake, 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.

19 . S.Rep. No. 93-1200, 93d Cong., 2d Sess. 12 (1974), U.S.Code Cong. & Admin.News 1974, p. 6290.

20 . Id.

21 . The Senate Committee Report on the 1974 amendments emphasizes the procedural flexibility available to a district judge.

In making this [exemption] determination, the court must first attempt to resolve the matter “on the basis of affidavits and other information submitted by the parties.” If it does decide to examine the contested records in camera, the court may consider further argument by both parties, may take further expert testimony, and may in some cases of a particularly sensitive nature decide to entertain an ex parte showing by the government.

S.Rep. No. 93-854, 93d Cong., 2d Sess. 15-16 (1974) (emphasis added).

During the House debates that led to an override of President Ford’s veto of the 1974 amendments, Representative William Moor-head, the cognizant Subcommittee Chairman, made the following observation on available court procedure under the bill.

[The court] can discuss the affidavit with Government attorneys in camera, or employ other similar means to obtain sufficient information needed to make a judgment. Only if such means cannot provide a clear justification for the classification markings would the court order an in camera inspection of the document itself. If the examination and subsequent discussions of the affidavit from the agency indicate that the classification assigned to the particular document is reasonable and proper under the Executive order and implementing regulations, the court would clearly rule for the Government and order the requested document withheld from the plaintiff. But if the examination and subsequent discussions of the affidavit from the agency could not resolve the issue, the court could then order the production of the document and examine it in camera to determine if the classification marking was properly authorized.

Source Book, note 17 supra, at 405-06.

22 . Weissman v. CIA, 184 U.S.App.D.C. 117, 122, 565 F.2d 692, 697 (1977). Whether there is a “sufficient description” to establish the exemptions is, of course, a key issue.

23 . Memorandum Opinion at 4.

24 . Appendix at 39: “Information concerning individuals other than the plaintiffs in these documents was withheld in those instances in which release of the information would result in a clearly unwarranted invasion of the personal privacy of persons named in the document. The fact that an individual is mentioned in a record maintained by the CIA, or is the subject of a CIA file, is easily misunderstood by the general public although the inclusion of such a person’s name in CIA records does not in any way necessarily imply that such individual is viewed in any negative context. Such record may be created because an individual may be a CIA employee applicant, furnished information to the, CIA and was thus an intelligence source or a potential intelligence source, etc. Accordingly, and particularly in view of the current publicity and controversy surrounding the CIA, the identity of individuals who are subjects of CIA files or are mentioned in CIA records is not disclosed under the authority of exemption (b)(6) of the Freedom of Information Act on the grounds that disclosure would constitute a clearly unwarranted invasion of an individual’s personal privacy.”