UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
____________________________________________ PAUL WOLF, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, et. al. Defendants. ____________________________________________ Civ. No. 01-00729 (PLF)REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT CIA'S
MOTION TO DISMISS, OR IN THE ALTERNATIVE FOR SUMMARY IUDGMENT,
AND OPPOSITION TO PLAINTIFF'S CROSS MOTION FOR SUMMARY JUDGMENT
Introduction This is an action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. On September 9, 2000, Plaintiff submitted a request to the Defendant Central Intelligence Agency ("CIA" or "Agency") seeking records pertaining to Jorge Eliecer Gaitan, a Colombian presidential candidate who was assassinated in 1948. Pursuant to FOIA Exemptions (b)(1) and (3), CIA responded that it can neither confirm nor deny whether it maintains documents responsive to plaintiff's FOIA request. On April 4, 2000, plaintiff filed a Complaint (the "Complaint") for Declaratory and Injunctive relief under the FOIA seeking to compel the defendant to produce documents responsive to his FOIA request.
On May 18, 2001, CIA filed its motion to dismiss, or in the alternative, for summary judgment and accompanying declaration of Kathryn I. Dyer, Chief of the CIA Information and Release Division of the Office of Information Management setting forth a full explanation and justification for defendant's invocation of FOIA Exemption (b)(1) and (3). Plaintiff filed an opposition to defendant's motion to dismiss and cross-motion for summary judgment [hereinafter Plaintiff's Memorandum] and accompanying exhibits, including a transcript of the 1948 congressional testimony of former Director of CIA, Rear Admiral R. K. Hillenkoetter, copies of several news reports that detail Hillenkoetter's testimony, and a copy of a declassified 1969 CIA article entitled "The Bogotazo."
The CIA submits this memorandum, which provides additional clarifying information, in further support of its motion to dismiss or in the alternative for summary judgment, in reply to plaintiff's opposition to CIA's motion to dismiss, or in the alternative for or summary judgment, and in opposition to plaintiff's cross-motion for summary judgment. For the following reasons, for the reasons previously set forth in CIA's motion, and on the basis of the entire record before the Court, the CIA respectfully submits that its motion to dismiss or its motion for summary judgment should be granted and plaintiff's cross-motion should be denied.
Argument Plaintiff raises two arguments: (1) that information he requested has been previously publicly released by the defendant, and therefore must be released to Plaintiff; and (2) that CIA has not demonstrated that the requested information is subject to classification and properly classified pursuant to Executive Order 12958. Both of plaintiff's arguments are without merit.
I. THE PREVIOUS PUBLIC RELEASES OF INFORMATION DO NOT CONSTITUTE AN OFFICIAL ACKNOWLEDGMENT THAT THE CIA MAINTAINS RECORDS RESPONSIVE TO PLAINTIFF'S FOIA REQUESTPlaintiff's first argument focuses on two public releases of information that refer to political unrest in Colombia in 1948. The plaintiff attached to his memorandum a copy of the transcript of the 1948 testimony of former CIA Director, Rear Admiral R.K. Hillenkoetter, who testified before the Congressional Special Subcommittee of the Committee on Expenditures. The plaintiff also attached to his memorandum several news articles that report on Hillenkoetter's testimony and a copy of a declassified CIA Studies In Intelligence article entitled "The Bogotazo." The article reports on the 1948 political unrest in Colombia; the U.S. reaction to the communist party activities that precipitated the unrest; and the resulting congressional investigation of a potential CIA failure to predict and report these events. Both the congressional testimony and the "Bogotazo" article make incidental reference to Jorge Eliecer Gaitan, who was a leading Colombian presidential candidate in 1948 and who was assassinated that same year in Bogota.
None of the exhibits attached to plaintiff's memorandum demonstrate that the CIA made previous public releases of information that specifically focus on Jorge Eliecer Gaitan nor do they amount to an official acknowledgment that confirms or denies that the CIA maintains records on Gaitan.
A. The information released by the CIA does not constitute an official acknowledgment that it maintains files on the subject of plaintiff's FOIA request.
Disclosure of agency information may be compelled over an otherwise valid FOIA exemption claim if the same information has been "officially acknowledged." Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990). Requested information is officially acknowledged if (1) the requested information has already been made public through an official and documented disclosure; (2) the requested information matches the previously released information; and (3) the requested information is as specific as the previously released information. Afshar v. Department of State, 702 F.2d 1125, 1133 (D.C. Cir. 1983), Public Citizen v. Department of State, 11 F.3d 198, 203 (D.C. Cir. 1993), Fitzgibbon, 911 F.2d at 765.
In the present case, the information released by the CIA neither matches nor specifically addresses the subject of the plaintiff's request. Plaintiff's exhibits merely demonstrate that the CIA was generally informed of Colombian political unrest in 1948, and, as Gaitan was a Colombian political figure during that period of time, he was incidentally mentioned in public disclosures by the CIA that relate to those events. None of the plaintiff's exhibits constitute an official acknowledgment confirming or denying whether the CIA maintains records specifically on Gaitan. Although Hillenkoetter's congressional testimony and the Studies in Intelligence article reveal some incidental facts about Gaitan, the references are general and describe Gaitan in the context of larger political events that took place in 1948 Colombia.
The D.C. Circuit has repeatedly held that an agency does not waive its FOIA exemptions by publicly discussing the general subject matter of documents. Afshar v. Department of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983); Public Citizen, 11 F.3d 198, 203 (D.C. Cir. 1993); Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990). As such, plaintiff's sources do not fulfill the second and third criteria set out by the D.C. Circuit, namely that "(2) the requested information matches the previously released information; and (3) the requested information is as specific as the previously released information." Afshar, 702 F.2d 1125, 1133, Fitzgibbon, 911 F.2d at 765.
Additionally, a refusal to release records under exemption 3 does not depend on the actual content of the documents, but instead depends on whether or not the information is protected by a statute and if the withheld material falls within the coverage of that statute. Fitzgibbon, 911 F.2d at 761, quoting Retired R.R. Workers v. United States R.R. Retirement Bd., 830 F.2d 331, 336 (D.C. Cir. 1987). The National Security Act of 1947 charges the Director of the CIA with "protecting intelligence sources and methods from unauthorized disclosure." 50 U.S.C. § 403-3(c)(6). In furtherance of that responsibility, the Central Intelligence Agency Information Act exempts operational files from searches in response to FOIA requests. 50 U.S.C. § 431. Since disclosure of operational information that would reveal intelligence sources and methods is prohibited by statute, under exemption (b) 3 of the FOIA, plaintiff is not entitled to confirmation or denial that the CIA possesses such records or any acknowledgment by the CIA that could reveal intelligence sources and methods, the precise type of information the statute was created to protect.
B. The CIA's release of information pursuant to a voluntary release program does not constitute a waiver of the FOIA operational file exemption.
The plaintiff also argues that the CIA's exemption from searching operational files was waived because the CIA's voluntary release Historical Review Program (HRP) declassified and released a Studies in Intelligence article entitled "Bogotazo" that relates to 1948 Colombian political unrest. Specifically, Plaintiff argues that "designating an event as part of the HRP removes the files in question from the protection of the CIA Information Act" (See Plaintiff's Memorandum at 8). The plaintiff cites to no authority to support this proposition.
The National Security Act provides for the only circumstances under which exempted operational files are subject to search and review. Those are requests for information concerning:
(1) United States citizens or aliens lawfully admitted for permanent residence who have requested information on themselves pursuant to the provisions of section 552 of Title 5 (Freedom of Information Act) or section 552a of Title 5 (Privacy Act of 1974);
(2) Any special activity the existence of which is not exempt from disclosure under the provisions of section 552 of Title 5 (Freedom of Information Act); or
(3) The specific subject matter of an investigation by the intelligence committees of the Congress, the Intelligence Oversight Board, the Department of Justice, the office of General Counsel of the Central Intelligence Agency, the office of Inspector General of the Central Intelligence Agency, or the Office of the Director of the Central Intelligence Agency for any impropriety, or violation of law, Executive order, or Presidential directive, in the conduct of an intelligence activity. 50 U.S.C. 431 (c)
There is no mention in the Act that releases of information pursuant to the HRP, or any other voluntary declassification effort, removes the relevant body of operational records from the search and review exemption. Additionally, the Studies in Intelligence article did not originate from an exempt operational file, but instead was written and published by the CIA's Directorate of Intelligence. Therefore, its declassification and release cannot, in itself, constitute a waiver of the operational file exemption.
While the Director of Central Intelligence ("DCI") has the authority to create voluntary declassification programs, such as the HRP, and authorize the release of otherwise exempt operational files, the plaintiff presents no evidence that the DCI has done so in relation to documents responsive to plaintiff's FOIA request.
Furthermore, as discussed in detail in the attached Declaration of Lloyd D. Salvette, an article from the Studies in Intelligence does not constitute an official Agency acknowledgment.1As noted in the "disclaimer" carried on the first page of the Studies in Intelligence that contained the "Bogotazo" article, it is the Editorial Board's policy that articles contained in Studies in Intelligence do not reflect the official views of the Agency (Exhibit 1). Specifically, the disclaimer contained in the Studies in Intelligence volume at issue in this case states: "All opinions expressed in the Studies are those of the authors. They do not necessarily represent the official views of the Central Intelligence Agency or any other component of the intelligence community." Id.
C. The 1948 congressional investigation of CIA does not waive the defendant's operational file exemption.
The plaintiff argues that the CIA's operational file exemption was waived because the one of its congressional oversight committees conducted an "investigation" of CIA's performance in analyzing the political unrest of 1948 Bogota, Colombia. The CIA Information Act provides that exempted operational files are subject to search and review for information concerning "the specific subject matter of any investigation by the intelligence committees of the Congress . . . for any impropriety or violation of law, Executive order, or Presidential directive in the conduct of an intelligence activity." 50 U.S.C. § 431(c). "A congressional investigation that touches on CIA conduct in a particular incident or region, standing alone, is not sufficient to warrant the release of all CIA documents anent that incident or region." Sullivan v. CIA, 992 F.2d 1249, 1255 (1st Cir. 1993) Further, the information requested must relate specifically to the subject matter of the investigation. Id.
The 1948 Congressional investigation at which former DCI Hillenkoetter testified was not an investigation of impropriety or violation of law by the CIA. Rather, it was an investigation by a special subcommittee of the Committee on Expenditures in the Executive Departments of an alleged intelligence failure, i.e., the CIA's failure to warn US policy makers that there could be violence in Colombia that might endanger a US government delegation attending a Bogota conference. The "specific subject matter" of the investigation was not Gaitan, but rather the broad subject of Colombian political unrest and CIA's performance of its mission to inform "top American officials of activities in foreign countries that might in any way affect or endanger the welfare of the nation" (See Plaintiff's Exhibit 1, page 2).
Moreover, the type of investigation conducted by this special subcommittee was not the kind of investigation Congress envisioned would cause a waiver of the operational files exemption. First, the statutory language is clear and unambiguous as 'to the conditions under which a congressional investigation will create a waiver of the operational file exemption. The Act, according to it explicit terms, requires that the investigation be conducted by the intelligence committees, the Intelligence Oversight Board, the Department of Justice, or certain internal CIA offices.
In the present case, the congressional investigation was conducted by a special subcommittee of the Committee on Expenditures in the Executive Departments, not by one of the bodies specified in the Act. What's more, the statutory language narrows the information subject to the FOIA to that which is "the specific subject matter of the investigation..." In describing the specificity requirement in this section of the Act, Member of the House Select Committee on Intelligence Boland, stated that the phrase "specific subject matter of the investigation" tailors "the scope of information remaining subject to the FOIA process to the scope of the specific subject matter of the investigation. This tailoring was intended to avoid the possibility of an unreasonably expansive interpretation of [431(c)] to include as subject to search and review information wholly unrelated to any question of illegality of impropriety." Rept. 98-726 Part 1, 98th Congress, May 1, 1984, page 31.
In the present case, the "specific subject matter" of the congressional investigation was the failure of CIA to report political unrest to a delegation of U.S. government officials, not Gaitan or his assassination. As such, an incidental mention of Gaitan in responding to congressional inquiry does not amount to a waiver of the operational exemption.
II. PLAINTIFF'S ARGUMENTS THAT ADDRESS PROPER CLASSIFICATION ARE FLAWED AND PREMATURE
Plaintiff argues that in order to invoke exemption (b)(1) of the FOIA, the defendant must demonstrate that documents in its possession are properly classified pursuant to Executive Order 12958. The Order, which regulates the protection of national security information through a mandatory scheme of required classification markings, provides that information shall be classified if it falls within one or more defined categories and if release could be expected to cause identifiable damage to national security. Additionally, the order provides that, in response to a FOIA request, an agency may refuse to confirm or deny the existence or nonexistence of requested information whenever the fact of its existence or nonexistence is itself classified pursuant to the Executive order. E.O. 12958 at 3.7(a).
In this case, the fact of the existence or nonexistence of records is properly classified under two sections of the Order: section 1.5(c), which deals with intelligence activities and intelligence sources, and 1.5(d), which deals with foreign relations. Both sections permit classification of information that, if disclosed, could be expected to cause serious and identifiable damage to the national security. As described in the Declaration of Kathryn I. Dyer, which was previously submitted to this Court, the confirmation of the existence of records might reveal an intelligence activity, source and or method, the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security (See Dyer Declaration at ¶¶ 23-26). Additionally, the official acknowledgment that the CIA maintains files on a certain foreign national could adversely affect U.S. foreign relations (See Dyer Declaration ¶¶ 27 & 28). Such disclosures could harm the intelligence gathering capability of the United States and compromise ongoing intelligence activities. The Supreme Court in Sims v. CIA, 471 U.S. 159, 175 (1985) emphasized the importance "of providing intelligence sources with an assurance of confidentiality that is as absolute as possible. . ." and to that end, acknowledged CIA's broad statutory authority to protect its intelligence sources and methods. Id. at 169. Therefore, in accordance with its authority under the CIA Information Act, the CIA neither confirmed nor denied the existence of records, and as such, cannot respond to plaintiff's arguments that begin with the premise that defendant maintains responsive records.
The plaintiff makes two additional arguments that 1) the CIA was required to show that files were reviewed to determine if certain portions were reasonably segregable and 2) that records more than 25 years old must be automatically declassified.
Plaintiff bases his segregability argument on the FOIA section that provides "any reasonably segregable portion of a record shall be provided to any person requesting such records after deletion of the portions which are exempt . . . 5 U.S.C. §552(b). Plaintiff bases his automatic declassification argument on Section 3.4 of E.O. 12958, which provides that records more than 25 years old shall be automatically declassified.
Neither argument has merit. Again, plaintiff's arguments are premised on an assumption that defendant maintains responsive documents. Because the existence or nonexistence of records was not acknowledged, to address whether files that may or may not exist can be reasonably segregated, or should be declassified, is illogical, or at the very least, premature.
CONCLUSION For the foregoing reasons, and the reasons stated in CIA's motion to dismiss, or in the alternative motion for summary judgment, CIA respectfully requests that the Court dismiss plaintiff's Complaint in its entirety and with prejudice.
1 The defendant has attached a copy of the executed Declaration to this reply. The original Declaration will be filed with the Court immediately upon receipt.
Respectfully Submitted,
KENNETH L. WAINSTEIN, D.C. Bar #358637
United States Attorney
MARK E. NAGLE, D.C. Bar #416364
Assistant United States Attorney
DIANE M. SULLIVAN, D.C. #12765
Assistant United States Attornev
Judiciary Center Building
555 4th Street, N.W.,
Of Counsel:
Stephanie Krawczyk
Office of General Counsel
Central Intelligence Agency
Exhibit 1
