The FOUNDING CHURCH OF SCIENTOLOGY OF WASHINGTON, D. C., INC., Appellant,
v.
NATIONAL SECURITY AGENCY et al.
No. 77-1975.
United States Court of Appeals,
District of Columbia Circuit.
Argued March 27, 1978.
Decided May 15, 1979.
A church brought suit against the National Security Agency, alleging that it
improperly refused to release documents requested by the church under the
Freedom of Information Act. The United States District Court for the District
of Columbia, 434 F.Supp. 632, John Lewis Smith, Jr., J., entered summary
judgment in favor of the NSA, and the church appealed. The Court of Appeals,
Spottswood W. Robinson, III, Circuit Judge, held that the NSA had failed to
establish its entitlement to a summary disposition of the litigation.
Reversed and remanded for additional proceedings.
[1] RECORDS
Statute stating that no law shall be construed to require disclosure of
organization or function of National Security Agency or of any information with
respect to its activities or names, titles, salaries or number of persons
employed by it was statute which qualified under exemption of Freedom of
Information Act for information "specifically exempted from disclosure by
statute." 5 U.S.C.A. s 552(b)(3), (b)(3)(A, B); 5 U.S.C. (1958 Ed.) s
654; Federal Aviation Act of 1958, s 1104, 49 U.S.C.A. s 1504; National
Security Act of 1947, ss 6, 102(d)(3) as amended 49 U.S.C.A. ss 402
note, 403(d)(3); Central Intelligence Agency Act of 1949, s 7, 50
U.S.C.A. s 403g.
See publication Words and Phrases for other judicial constructions and
definitions.
[2] FEDERAL CIVIL PROCEDURE
Affidavit of information officer of National Security Agency, submitted in suit
under Freedom of Information Act to support NSA's position that its records
sought by church were exempt from disclosure under Act, was too conclusory to
support trial court's action in entering summary judgment for NSA where it
furnished little that would enable determination as to whether materials
withheld actually bore on Agency's organization, functions or faculty for
intelligence operations and, instead, merely stated that compliance with
church's demand would reveal "certain functions and activities" protected from
mandatory disclosure by statute and would "jeopardize national security
functions the Agency was established to perform." 5 U.S.C.A. s
552(a)(4)(B), (b)(1, 3), (b)(7)(E).
[3] FEDERAL CIVIL PROCEDURE
National Security Agency, as defendant in suit by church under Freedom of
Information Act to require production of records concerning NSA's alleged
investigation of church, failed to establish absence of triable issues of fact
on issue whether searches which it made of its files were adequate to support
its statement that other materials sought by church were unavailable. 5
U.S.C.A. ss 552, 552(b)(3); 28 U.S.C.A. s 2106; National Security Act
of 1947, s 6 as amended 50 U.S.C.A. s 402 note; Fed.Rules Civ.Proc.
Rule 60(b), 28 U.S.C.A.
*824 **305 Appeal from the United States District Court for the District
of Columbia (D.C. Civil Action No. 76-1494).
William A. Dobrovir, Washington, D. C., for appellant.
Michael F. Hertz, Atty., Dept. of Justice, Washington, D. C., with whom Earl
J. Silbert, U. S. Atty., Barbara Allen Babcock, Asst. Atty. Gen., and Robert E.
Kopp, Atty., Dept. of Justice, Washington, D. C., were on the brief, for
appellee. Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., also
entered an appearance for appellee.
*825 **306 Before TAMM and ROBINSON, Circuit Judges, and OBERDORFER,[FN*]
United States District Judge, United States District Court for the District of
Columbia.
FN* Sitting by designation pursuant to 28 U.S.C. s 292(a) (1976).
Opinion for the Court filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.
SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
The Founding Church of Scientology of Washington, D.C., Inc., the appellant,
complained in the District Court of the refusal of the National Security
Agency (NSA), the appellee, to release documents requested by appellant under
the Freedom of Information Act.[FN1] The court, relying upon an affidavit
submitted by the agency, ruled that the materials solicited were protected from
disclosure by joint operation of Exemption 3 of the Act [FN2] and Section 6
of Public Law No. 86-36,[FN3] and granted summary judgment in favor of NSA.
[FN4] We find that NSA failed to establish its entitlement to a summary
disposition of the litigation. Accordingly, we reverse the judgment appealed
from and remand the case for additional proceedings before the District Court.
FN1. Pub.L.No.89-487, 80 Stat. 251 (1966), codified by Pub.L. No.90-23, 81
Stat. 55 (1967), as amended by Government in the Sunshine Act, Pub.L. No.
94-409, s 5(b)(3), 90 Stat. 1247 (1976), codified at 5 U.S.C. s
552 (1976) (hereinafter cited as codified).
FN2. 5 U.S.C. s 552(b)(3) (1976).
FN3. Pub.L.No.86-36, s 6, 73 Stat. 63 (1959), codified at 50
U.S.C. s 402 note (1976), quoted in text Infra at note 25.
FN4. Founding Church of Scientology v. NSA, 434 F.Supp. 632
(D.D.C.1977).
I
NSA was created by order of the President in 1952 [FN5] and endowed with a
twofold mission. Its first major task is shielding the Nation's coded
communications from interception by foreign governments. Its second principal
function, implicated by appellant's document request, entails acquisition of
information from electromagnetic signals and distillation of that information
for assimilation by the intelligence community and national policymakers. As a
part of the latter activity, NSA surreptitiously intercepts international
communications by a variety of means.
FN5. Memorandum from President Harry S. Truman to the Secretary of State
and the Secretary of Defense, "Communications Intelligence Activities"
(Oct. 24, 1952). See S.Rep.No.755, 94th Cong., 2d Sess. 736 (1976). NSA is
a separately organized agency within the Department of Defense, and is
controlled by the Secretary of Defense.
In December, 1974, appellant sought access, pursuant to the Freedom of
Information Act, to all records maintained by the Agency on appellant and the
philosophy it espouses, as well as records reflecting dissemination of
information about appellant to domestic agencies or foreign governments.
Subsequently, appellant's request was enlarged to embrace all references
touching on L. Ron Hubbard, founder of the doctrine of Scientology. NSA's reply
was that it had not established any file pertaining either to appellant or
Hubbard, and that it had transmitted no information regarding either to the
entities specified in the demand. In March, 1975, appellant enumerated other
Scientology organizations with respect to which pertinent records might exist.
NSA again denied possession of any of the data sought.
In the course of Freedom of Information Act proceedings against the Department
of State and the Central Intelligence Agency (CIA), appellant learned that NSA
had at least sixteen documents concerning Scientology, appellant and related
organizations. So advised, and armed with details solicited from CIA, NSA
succeeded in locating fifteen of those items in warehouse storage, and obtained
a copy of the sixteenth from CIA. Release of these materials was resisted,
however, on grounds that they were protected from disclosure by provisos of the
*826 **307 Act relating to national security matters [FN6] and to
confidentiality specifically imparted by other statutes.[FN7]
FN6. Exemption 1, 5 U.S.C. s 553(b)(1) (1976), immunizes from
compulsory disclosure information that is
(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(.)
As the District Court did not predicate the summary judgment on this
exemption, we do not consider its applicability here. See text Infra at
notes 9-10.
FN7. Exemption 3, 5 U.S.C. s 552(b)(3) (1976), quoted in text Infra at
note 19.
In August, 1976, appellant commenced suit in the District Court to compel NSA
to conduct a renewed search of its files and to enjoin any withholding of the
materials desired. Appellant served numerous interrogatories on NSA inquiring
into its efforts to locate responsive records, its classification of documents,
and its correspondence with CIA with respect to the items theretofore
uncovered. Purportedly to avoid revelation of functions and activities
assertedly insulated by the Act from public scrutiny,[FN8] NSA declined to
supply more than minimal information in answer to the interrogatories.
FN8. See notes 6-7 Supra.
Then, invoking Public Law No. 86-36 [FN9] and Exemption 3 [FN10] exclusively,
NSA moved for dismissal of the action or alternatively for summary judgment in
its favor. In support of the motion, NSA tendered the affidavit of Norman
Boardman, its information officer, and offered to furnish a more detailed but
classified affidavit for In camera inspection. Appellant vigorously opposed any
Ex parte submission and sought more extensive public airing of the issues. The
District Court was of the view that Section 6 of Public Law No. 86-36 was an
Exemption 3 statute foreclosing compulsory release of the sought-after data.
[FN11] In that light, and on the basis of Boardman's public affidavit, the
court ordered summary judgment for NSA.[FN12] From that action, this appeal was
taken.
FN9. Quoted in text Infra at note 25. Initially, NSA also advanced 18
U.S.C. s 798 (1976) and 50 U.S.C. s 403(d)(3) (1976) as Exemption 3
statutes. For a discussion of these provisions in the context of litigation
against NSA, see Baez v. NSA, 76-1921 (D.D.C. April 7, 1978). NSA's summary
judgment motion and the District Court's decision, however, rested only on
Pub.L. No. 86-36. We limit our consideration accordingly.
FN10. Quoted in text Infra at p. note 19.
FN11. Founding Church of Scientology v. NSA, supra note 4, 434 F.Supp.
at 633.
FN12. Id.
II
Appellant begins with a challenge to the District Court's holding that the
sixteen documents admittedly retained by NSA enjoy a protected status.[FN13]
Appellant then complains of the court's failure to probe more thoroughly NSA's
protestations respecting possession of other relevant material.[FN14] In
pressing the first point, appellant concedes that Section 6 of Public Law
No. 86-36 is a law bringing Exemption 3 into play but claims inadequacies in
the agency's showing, upon which the District Court awarded summary judgment.
More particularly, appellant contends that the Boardman affidavit lacked
sufficient detail to enable an informed determination as to whether disclosure
of any or all of the sixteen items would illuminate agency activities of which
the public was not already aware. We, too, believe that Section 6 is an
Exemption 3 statute and that NSA's affidavit did not furnish a satisfactory
basis for testing the exemption's applicability to the data appellant seeks.
FN13. See text Supra at note 6.
FN14. Discussed in Part III Infra.
A
[1] As originally enacted, Exemption 3 authorized the withholding of
information "specifically exempted from disclosure by statute." [FN15] The
exemption was amended in *827 **308 1976, however, "to overrule (a)
decision of the Supreme Court" [FN16] which had sanctioned rejection of a
records request on grounds that nondivulgence was authorized by a statute
conferring a "broad degree of discretion" [FN17] on an agency to conceal data
"in the interest of the public." [FN18] Under the exemption as amended,
materials are deemed "specifically exempted from disclosure by statute" only if
the "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." [FN19] Subsection (A) reaches only those laws that mandate
confidentiality "absolute(ly) and without exception"; [FN20] it condones no
decisionmaking at the agency level.[FN21] Subsection (B), on the other hand,
does contemplate some exercise of administrative discretion in closely
circumscribed situations, "but its unmistakeable thrust . . . is to assure that
basic policy decisions on governmental secrecy be made by the Legislative
rather than the Executive branch." [FN22]
FN15. 5 U.S.C. s 552(b)(3) (1976).
FN16. H.R.Rep.No.1441, 94th Cong., 2d Sess. 14 (1976) (conference report),
referring to Administrator v. Robertson, 422 U.S. 255, 95 S.Ct. 2140, 45
L.Ed.2d 164 (1975).
FN17. Administrator v. Robertson, supra note 16, 422 U.S. at 266, 95
S.Ct. at 2148, 45 L.Ed.2d at 174.
FN18. 49 U.S.C. s 1504 (1976), providing that, upon objection of any
person, agency officials "shall order such information withheld from public
disclosure when, 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."
FN19. 5 U.S.C. s 552(b)(3) (1976).
FN20. 122 Cong.Rec. H9260 (daily ed. Aug. 31, 1976) (remarks of
Representative Abzug).
FN21. American Jewish Congress v. Kreps, 187 U.S.App.D.C. 413, 415 &
n.33, 574 F.2d 624, 626 & n.33 (1978) (discussing legislative history).
FN22. Id. at 417, 574 F.2d at 628 (footnote omitted).
The provision on which NSA relies to trigger Exemption 3 into operation is
Section 6 of Public Law No. 86-36, which states that with exceptions
inapplicable in this case
nothing in this Act [FN23] or any other law (including, but not limited to,
the (Classification Act of 1949)) [FN24] shall be construed to require the
disclosure of the organization or any function of the National Security Agency,
of any information with respect to the activities thereof, or of names, titles,
salaries, or number of the persons employed by such agency.[FN25]
FN23. Pub.L.No.86-36, 73 Stat. 63 (1959) ("(t)o provide certain
administrative authorities for the National Security Agency"), as amended,
50 U.S.C. s 402 note (1976).
FN24. 5 U.S.C. s 654 (1958), repealed by Pub.L.No.86-626, 74 Stat. 427
(1960).
FN25. Pub.L.No.86-36, s 6, 73 Stat. 64 (1959), in 50 U.S.C. s 402
note (1976).
Plainly, Section 6 insulates the information specified from mandatory
divulgence though it does not purport to bar voluntary disclosure by NSA
itself. Since it countenances administrative discretion to publicize or
maintain secrecy, Section 6 lacks the rigor demanded by Subsection (A) of
Exemption 3. But appellant acknowledges, and the District Court ruled,[FN26]
that, within the meaning of Subsection (B), Section 6 "refers to particular
types of matters to be withheld." [FN27] More specifically, in material part
the provision protects information laying open "the organization or any
function of the National Security Agency, . . . (or) the activities thereof."
[FN28]
FN26. Founding Church of Scientology v. NSA, supra note 4, 434 F.Supp.
at 633.
FN27. See text Supra at note 19. Concurring in this view are Baez v.
NSA, supra note 9; Kruh v. GSA, 421 F.Supp. 965, 967-968
(E.D.N.Y.1976).
FN28. See text Supra at note 25.
Our examination of Section 6 and its legislative history confirms the view
that it manifests a "congressional appreciation of the dangers inherent in
airing particular *828 **309 data," [FN29] and thus satisfies the
strictures of Subsection (B). The section was enacted at the request of the
Department of Defense.[FN30] The Department's immediate aim was termination of
personnel oversight by the Civil Service Commission, which would subject highly
sensitive agency activities to inspection.[FN31] Exclusion from the
Classification Act, [FN32] administered by the Civil Service Commission, was
thought to be "consistent with the treatment . . . accorded other agencies
engaged in specialized or highly classified defense activities." [FN33] The
purpose and scope of the bill proposed was broader, however, for, as the
Department explained, "(t)he unique and highly sensitive activities of the
Agency require extreme security measures." [FN34] Accordingly, the bill
incorporated provisions "exempting the Agency from statutory requirements
involving disclosures of organizational . . . matters which should be protected
in the interest of national defense." [FN35]
FN29. American Jewish Congress v. Kreps, supra note 21, 187
U.S.App.D.C. at 417, 574 F.2d at 628.
FN30. Letter from Donald A. Quarles, Acting Secretary of Defense, to
Richard M. Nixon, President of the Senate (Jan. 2, 1959), included in
S.Rep.No.284, 86th Cong., 1st Sess. 2-3 (1959).
FN31. Id. at 3 (letter).
FN32. See note 24 Supra.
FN33. S.Rep.No.284, Supra note 30, at 3 (letter); see Id. at 2 (text
of report).
FN34. Id. at 3 (letter).
FN35. Id. (letter).
The Senate report focused on relieving NSA from the requirements of the
Classification Act.[FN36] But it also echoed the Department's concern over
publicity of NSA's "very highly classified functions vital to the national
security." [FN37] The statutory language similarly evinces a purpose to shield
the matters enumerated from indiscriminate public consumption. Section 6
ordains unequivocally that "nothing in this Act or any other law (including,
but not limited to, the (Classification Act)) shall be construed to
require . . . disclosure." [FN38]
FN36. Id. at 1-2 (text of report).
FN37. Id. at 1 (text of report).
FN38. See text Supra at note 25.
Thus, Section 6 embodies far more than "a vague apprehension that (the)
Agency might someday fall heir to sensitive information." [FN39] It reflects
instead a congressional judgment that, in order to preserve national security,
information elucidating the subjects specified ought to be safe from forced
exposure. The basic policy choice was made by Congress, not entrusted to
administrative discretion in the first instance. It follows that Section 6
is a statute qualifying under Exemption 3.[FN40]
FN39. American Jewish Congress v. Kreps, supra note 21, 187
U.S.App.D.C. at 417, 574 F.2d at 628.
FN40. Accord, Baez v. NSA, supra note 9; Kruh v. GSA, supra note 27,
421 F.Supp. at 967-968.
Even the most casual reading of Section 6 suggests, however, a potential
for unduly broad construction. On the one hand, the section embraces personnel
matters of a fairly restricted character and susceptible of little
interpretation.[FN41] Literal application of those terms might expectably honor
the congressional policy underlying Section 6 without doing violence to the
Freedom of Information Act's "overwhelming emphasis upon disclosure." [FN42] On
the other hand, *829 **310 Section 6 encompasses "any information with
respect to the Activities " of NSA,[FN43] and that implicates superficially the
gamut of agency affairs. To be sure, the legislation's scope must be broad in
light of the agency's highly delicate mission. But a term so elastic as
"activities" should be construed with sensitivity to the "hazard(s) that
Congress foresaw." [FN44] As we have observed in an analogous context, "(t)o
fulfill Congress' intent to close the loophole created in Robertson,[FN45]
courts must be particularly careful when scrutinizing claims of exemptions
based on such expansive terms." [FN46]
FN41. "(N)ames, titles, salaries, or number of the persons employed by
(the) agency." See text Supra at note 25.
FN42. Vaughn v. Rosen, 157 U.S.App.D.C. 340, 343, 484 F.2d 820, 823
(1973), Cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873
(1974). Compare Baker v. CIA, 188 U.S.App.D.C. 401, 580 F.2d 664 (1978),
in which we construed literally s 7 of the Central Intelligence Agency Act
of 1949, ch. 227, s 7, 63 Stat. 211 (1949), codified at 50 U.S.C. s
403g (1970), which exempted "from the provisions of section 654 of Title
5, and the provisions of any other law which requires the publication or
disclosure of the organization, functions, names, official titles,
salaries, or numbers of personnel employed by the Agency . . . ." We noted,
however, that to require that sought-after personnel material be in fact
linked with intelligence, security, sources or methods would render s
403g "mere surplusage, since such a showing would necessarily bring the
requested information within the purview of s 403(d)(3) (see note 46
Infra ) and thereby immunize it from disclosure without the need for a
separate statutory exemption." Baker v. CIA, supra, 188 U.S.App.D.C. at
405, 580 F.2d at 668. We observed, too, that "section 403g creates a
very narrow and explicit exception to the requirements of the" Freedom of
Information Act. Id. 188 U.S.App.D.C. at 407, 580 F.2d at 670.
FN43. See text Supra at note 25.
FN44. American Jewish Congress v. Kreps, supra note 21, 187
U.S.App.D.C. at 418, 574 F.2d at 629.
FN45. See note 16 Supra and accompanying text.
FN46. Ray v. Turner, 190 U.S.App.D.C. 290, 323, 587 F.2d 1187, 1220
(D.C.Cir. 1978) (concurring opinion). We spoke there of 50 U.S.C. s
403(d)(3) (1976), which instructs the Director of the Central Intelligence
Agency to protect "intelligence sources and methods from unauthorized
disclosure." We observed that, "while the 'particular types of matters'
listed in Section 403g (E. g., names, official titles, salaries) are
fairly specific, Section 403(d)(3)'s language of protecting
'intelligence sources and methods' is potentially quite expansive."
It may be that Congress intended to confer no greater protection to NSA's
"activities" by enacting Pub.L.No.86-36 than it did to CIA by complementary
operation of ss 403g and 403(d)(3). See Baez v. NSA, supra note 9.
The Senate Report discussing Pub.L.No.86-36 likened the secrecy afforded
NSA to that allowed other intelligence agencies exempted from the
Classification Act, which would include CIA. See S.Rep.No.284, Supra
note 30, at 2 ("(s)uch exemption would be consistent with legislation in
effect with respect to other agencies similarly engaged in highly
classified defense activities"). As NSA's defense in the instant case is
avowedly directed at safeguarding intelligence sources and methods, see
text Infra at notes 47-48, we need not consider whether the term
"activities" in Pub.L.No.86-36 might conceivably shield any more than that.
NSA has not based its repulsion of appellant's informational request upon an
illusory need to safeguard "secrets" either familiar to all or unrelated to its
operational modes. In the agency's words, its "claim . . . . is not made with
respect to its general functions or activities"; [FN47] it seeks instead to
halt any divulgence of "information in such detail so as to let potential
adversaries know which specific communications circuits are not secure, and
which communications, depending on the circuits through which they were
transmitted, the Agency is likely to possess or not possess." [FN48] That
position, if substantiated, would undercut appellant's reliance on the Senate's
far-ranging disclosure of NSA's operations in the course of recent
investigations of gross illegalities on the part of intelligence agencies,
[FN49] for the Senate inquiries seemingly stopped short of revealing specifics
about the agency's intelligence capabilities,[FN50] which still warrant
stringent *830 **311 protection from compulsory exposure. With this
background, then, we proceed to examine whether the District Court adequately
undertook to adjudicate the applicability of Section 6 to the materials
appellant seeks.
FN47. Brief for Appellees at 14.
FN48. Id. at 13 n.5; see Id. at 12-13.
FN49. See Final Report of the Select Comm. to Study Governmental
Operations with Respect to Intelligence Activities, S.Rep.No.755, 94th
Cong., 2d Sess. (1976) (especially Book III, at 733-786). Although NSA
would have no protectable interest in suppressing information simply
because its release might uncloak an illegal operation, it may properly
withhold records gathered illegally if divulgence would reveal currently
viable information channels, albeit ones that were abused in the past.
Compare Halkin v. Helms, 194 U.S.App.D.C. 82, 90-91, 598 F.2d 1, 9-10
(D.C.Cir. 1978). Of course, every effort should be made to segregate for
ultimate disclosure aspects of the records that would not implicate
legitimate intelligence operations, however embarrassing to the agency.
FN50. See S.Rep.No.755, Supra note 49, Book III, at 735-736 ("(t)he
Committee recognizes that NSA's vast Technological capability is a
sensitive national asset which ought to be zealously protected for its
value to our common defense" (emphasis supplied)); Id. at 736-783. See
also Hearings Before the Select Comm. to Study Governmental Operations with
Respect to Intelligence Activities, 94th Cong., 1st Sess. 36, Vol. 5
(1975) (remarks of Senator Church, Chairman) ("(t)o make sure this
Committee does not interfere with ongoing intelligence activities, we have
had to be exceedingly careful for the Techniques of the NSA are of the most
sensitive and fragile character" (emphasis supplied)). Compare Halkin v.
Helms, supra note 49, 194 U.S.App.D.C. at 90-91, 598 F.2d at 9-10.
B
[2] Congress has directed that in reviewing agency rejections of Freedom of
Information Act requests, "the court shall determine the matter de novo, and
may examine the contents of . . . 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)." [FN51] Very importantly, "the burden is on the
agency to sustain its action." [FN52] The legislative history of the Act
explains that "the Government should be given the opportunity to establish by
means of testimony or Detailed affidavit that the documents are Clearly exempt
from disclosure," [FN53] and that the court should "accord substantial weight
to an agency's affidavit." [FN54] But, as in the recent past we have noted,
"conclusory and generalized allegations of exemptions" are unacceptable; [FN55]
if the court is unable to sustain nondivulgence on the basis of affidavits, In
camera inspection may well be in order. As Congress has declared, "in many
situations" review of requested materials in chambers "will plainly be
necessary and appropriate." [FN56]
FN51. 5 U.S.C. s 552(a)(4)(B) (1976).
FN52. Id.
FN53. S.Rep.No.1200, 93d Cong., 2d Sess. 9 (1974), Reprinted in (1974)
U.S.Code Cong. & Ad.News 6267, 6287 (conference report) (emphasis
supplied). See Ray v. Turner, supra note 46, 190 U.S.App.D.C. at 303-
305, 587 F.2d at 1210-1212 (concurring opinion); Weissman v. CIA, 184
U.S.App.D.C. 117, 121-122, 565 F.2d 692, 696-697 (1977). See also EPA v.
Mink, 410 U.S. 73, 92-93, 93 S.Ct. 827, 838-839, 35 L.Ed.2d 119, 134-136
(1973).
FN54. S.Rep.No.1200, Supra note 53, at 12, Reprinted In (1974) U.S.Code
Cong. & Ad.News 6290. Though these remarks were made in the context of
Exemption 1, they would seem equally pertinent to Exemption 3 claims
involving national security. See Ray v. Turner, supra note 46, 190
U.S.App.D.C. at 315, 587 F.2d at 1211; Goland v. CIA, 197 U.S.App.D.C.
25, 49 n.64, 607 F.2d 339, 363 n.64 (D.C.Cir. 1978).
FN55. Vaughn v. Rosen, supra note 42, 157 U.S.App.D.C. at 346, 484
F.2d at 826. See Ray v. Turner, supra note 46, 190 U.S.App.D.C. at
321, 587 F.2d at 1218 (concurring opinion); Goland v. CIA, supra note
54, 197 U.S.App.D.C. at 49 n.64, 607 F.2d at 363 n.64; Brandon v.
Eckard, 187 U.S.App.D.C. 28, 33-34, 569 F.2d 683, 688-689 (1977);
National Cable Television Ass'n v. FCC, 156 U.S.App.D.C. 91, 98, 479
F.2d 183, 190 (1973).
FN56. S.Rep.No.1200, Supra note 53, at 9, Reprinted in (1974) U.S.Code
Cong. & Ad.News 6287. See Ray v. Turner, supra note 46, 190
U.S.App.D.C. at 311, 587 F.2d at 1208 (concurring opinion).
We think the District Court failed in this litigation to conduct a true de
novo review consonant with the foregoing principles, and that summary judgment
was precipitously entered. The showing made by NSA consisted wholly in the
public affidavit of Norman Boardman, its information officer.[FN57] Boardman
avowed that the materials requested "were acquired in the course of conducting
lawful signals intelligence activities," and that "(r)elease of any record or
portion thereof would disclose information about the nature of NSA's activities
including its functions." [FN58] He further explained:
FN57. Joint Appendix (J.App.) 83.
FN58. J.App. 89-90.
I have determined that the records involved in this case and specific informa
*831 tion **312 about those records such as numbers, dates, and type of
information contained therein cannot be disclosed, because to do so would
jeopardize national security functions the Agency was established to
perform. . . . Disclosure of specific information which may be related to a
specific individual or organization . . . in the context of (the agency's)
singular mission would reveal certain functions and activities of the NSA which
are protected from mandatory disclosure by Section 6 of Public Law 86-36.
[FN59]
FN59. J.App. 90.
Boardman additionally maintained that his averments were as detailed as
security constraints allowed:
It is not possible to describe in a publicly filed affidavit the material in
and dates of the documents held by NSA, because this would . . . enable a
knowledgeable person to determine the nature of the documents . . . and thus
disclose intelligence sources and methods . . . . In short, any further factual
public description of material would compromise the secret nature of the
information and would compromise intelligence sources and methods.[FN60]
FN60. J.App. 91. The affidavit also averred that "(t)he NSA is in a
dilemma because it is in possession of evidence which would fully justify
the withholding of the records at issue under a statute that must be cited
for the protection of the records, but it cannot disclose this evidence
without revealing information which itself requires the same protection."
On this issue, see text Infra at notes 73-77.
In our view, the Boardman affidavit was far too conclusory to support the
summary judgment awarded NSA. The agency acknowledged to the District Court,
and has represented to us on appeal, that the documents in issue have been
suppressed, not on account of their "substantive content," but because release
to appellant would reveal "vital national security information concerning the
organization, function and communication intelligence capabilities of the
NSA." [FN61] But the Boardman affidavit furnishes precious little that would
enable a determination as to whether the materials withheld actually do bear on
the agency's organization, functions or faculty for intelligence operations.
Rather, it merely states, without any elucidation whatever, that compliance
with appellant's demand would reveal "certain functions and activities . . .
protected from mandatory disclosure by Section 6," [FN62] and would
"jeopardize national security functions the agency was established to
perform." [FN63] Barren assertions that an exempting statute has been met
cannot suffice to establish that fact,[FN64] yet one will search the Boardman
affidavit in vain for anything more.
FN61. Memorandum in Support of Defendants' Motion to Dismiss or, in the
Alternative, for Summary Judgment, at 9 n.5, Record on Appeal (docket entry
12).
FN62. See text Supra at note 59.
FN63. See text Supra at note 59.
FN64. See note 55 Supra and accompanying text.
Not only does the Boardman statement fail to indicate even in the slightest
How agency functions might be unveiled, but it also lacks so much as guarded
specificity as to the "certain functions and activities" [FN65] that might be
revealed. From aught that appears, the sixteen documents may implicate aspects
of the agency's operations already *832 **313 well publicized.[FN66]
Suppression of information of that sort would frustrate the pressing policies
of the Act without even arguably advancing countervailing considerations.[FN67]
FN65. See text Supra at note 59. In contrast, an affidavit supplied by
the Central Intelligence Agency in Goland v. CIA, supra note 54,
indicated that the substantive content of withheld information pertained to
protected matters, and was sufficiently detailed to support their
nondisclosure pursuant to Exemption 3:
(T)he deleted portions of the (requested document) contain detailed
descriptions of (1) "intelligence collection and operational devices . . .
still utilized"; (2) "methods of procurement and supply . . . unique to the
Intelligence Community" which "are currently utilized"; (3) "basic concepts
of intelligence methodology" of which "the essential elements remain
viable"; (4) specific clandestine intelligence operations," including the "
names (of) the foreign countries involved"; and (5) "certain intelligence
methodologies of a friendly foreign government."
197 U.S.App.D.C. at 37, 607 F.2d at 351.
FN66. See note 49 Supra and accompanying text.
FN67. See Ray v. Turner, supra note 46, 190 U.S.App.D.C. at 324
n.89, 587 F.2d at 1221 n.89 (concurring opinion); Halperin v. CIA, 446
F.Supp. 661, 664, 666-667 (D.D.C.1978) (50 U.S.C. s 403(d)(3) (1976)
properly invoked to protect data not compromised by prior disclosure); Cf.
H.R.Rep.No.1380, 93d Cong., 2d Sess. 12 (1974), Reprinted in (1974) U.S.
Code.Cong. & Ad.News, 6272 (Exemption 7(E), regarding "investigative
techniques and procedures," 5 U.S.C. s 552(b) (7)(E) (1976), "should not
be interpreted to include routine techniques and procedures already well
known to the public"); 120 Cong.Rec. 17034 (1974) (remarks of Senator
Hart) (protection of investigative techniques and procedures applicable
when "such techniques and procedures are not generally known outside the
Government"). See also 120 Cong.Rec. 36626 (1974) (remarks of
Representative Reid) ("(t)he courts, in my view, have a duty to look behind
any claim of exemption, which all too often in the past has been used to
cover up inefficiency or embarrassment even in foreign policy matters
which, many times, are fully known by other countries but not printable in
our own supposedly the most democratic and most open in the world").
Before this court, NSA has endeavored to remedy the deficiencies of its
presentation in the District Court. As we have noted, the agency has identified
as the subject of its concern the publication of information in such detail
that its interception capabilities with respect to particular communications
circuits might be exposed.[FN68] Were NSA able to establish its claim in that
regard, immunization by Section 6 at least to that extent would be assured.
[FN69] But the appropriate occasion for such an undertaking was during the
proceedings before the District Court, in the context of de novo consideration
of appellant's demand.[FN70]
FN68. See text Supra at note 48.
FN69. Partial disclosure still might be possible if the compromising
sections of the requested documents were susceptible of deletion. See 5
U.S.C. s 552(b) (1976); Ray v. Turner, supra note 46, 190
U.S.App.D.C. at 293 & n.7, 587 F.2d at 1190 & n.7 (concurring opinion);
Irons v. Gottschalk, 179 U.S.App.D.C. 37, 41, 548 F.2d 992, 996 (1976),
Cert. denied, 434 U.S. 965, 98 S.Ct. 505, 54 L.Ed.2d 451 (1977);
Vaughn v. Rosen, supra note 42, 157 U.S.App.D.C. at 343-345, 484 F.2d
at 823-825. Significantly, NSA indicated in response to interrogatories
that no review had been made to identify segregable elements of the
records. J.App. 48.
FN70. See text Supra at notes 51-56.
Aside from their bearing on the substantive decision ultimately to be made,
NSA's averments on appeal have significant ramifications for the conduct of the
litigation. In particular, they compellingly evince the feasibility of further
elaboration of the agency's public affidavit. We acknowledge, of course, that
public explanations of a determination to withhold need not "contain factual
descriptions that . . . would compromise the secret nature of the
information," [FN71] but we see no reason why NSA's open and informative
representations to this court could not have been encouched in the initial
affidavit.[FN72] And we suspect that the public record can be developed further
still without untoward risk to the agency's statutory mission were it to
exercise sufficient ingenuity.
FN71. Vaughn v. Rosen, supra note 42, 157 U.S.App.D.C. at 346, 484
F.2d at 826.
FN72. At oral argument, counsel for NSA suggested that the agency must
necessarily be vague until it learns precisely what the requester's
arguments will be when the agency can sharpen its claim accordingly. At
most, this position buttresses the need for supplementation of conclusory
affidavits during the course of trial-court proceedings; it certainly does
not justify a prompting of unnecessary appeals and consequent remands. In
any event, we firmly reject the notion that an agency should advance just
so much as it deems essential to establish the applicability of a claimed
exemption when it is able, without endangering activity that should remain
secret, to supply publicly further details that well might aid the de novo
determination on disclosability or nondisclosability of the desired
documents. The one argument an agency may confidently anticipate is lack of
specificity in its supporting papers.
The importance of maximizing adversary procedures in suits such as this cannot
be *833 **314 gainsaid.[FN73] Participation of the information-requesters
to the fullest extent feasible is essential to the efficacy of de novo re-
examination of the agency's action.[FN74] Not insignificantly, the parties and
the court, if sufficiently informed, may discern a means of liberating withheld
documents without compromising the agency's legitimate interests. To that end,
discovery may be employed to develop more fully the basis of nondisclosure or
the lack of it.[FN75] As we have also said, "(t)he court may . . . require the
agency to submit under protective seal affidavits that are more detailed than
those made available to the plaintiff," [FN76] and after scrutiny thereof "the
court may order release of any portions of these In camera affidavits that it
determines will present no danger of unauthorized disclosure." [FN77] These
salutary devices were abruptly aborted in the case at bar by unquestioning
reliance upon the conclusory Boardman affidavit.
FN73. See Ray v. Turner, supra note 46, 190 U.S.App.D.C. at 307,
314-316, 587 F.2d at 1204, 1210-1212 (concurring opinion); Phillippi v.
CIA, 178 U.S.App.D.C. 243, 247, 546 F.2d 1009, 1013 (1976); Vaughn v.
Rosen, supra note 42, 157 U.S.App.D.C. at 344-345, 484 F.2d at 824-825.
FN74. See 120 Cong.Rec. 17019 (1974) (remarks of Senator Kennedy) (ex
parte showing by agency should occur only "where the court determines that
involvement of plaintiff's counsel in that aspect of the case would itself
pose a threat to national security"). Compare Halkin v. Helms, supra
note 49, 194 U.S.App.D.C., at 88 & n.5, 598 F.2d at 7 & n.5.
FN75. See Ray v. Turner, supra note 46, 190 U.S.App.D.C. at 321
n.81, 587 F.2d at 1218 n.81 ("(i)nterrogatories and depositions are
especially important in a case where one party has an effective monopoly on
the relevant information").
FN76. Ray v. Turner, supra note 46, 190 U.S.App.D.C. at 321 n.61,
587 F.2d at 1218 n.61. See Phillippi v. CIA, supra note 75, 178
U.S.App.D.C. at 247, 546 F.2d at 1013. Compare Halkin v. Helms, supra
note 49, 194 U.S.App.D.C. at 90, 598 F.2d at 9.
FN77. Ray v. Turner, supra note 46, 190 U.S.App.D.C. at 321 n.61,
587 F.2d at 1218 n.61.
It is much too soon to tell whether NSA can establish its claims by more
detailed public or classified affidavits, or whether In camera review of the
controverted documents themselves will become essential to the resolution
proper.[FN78] What is clear, however, is that the Boardman affidavit was
inadequate to discharge the burden firmly placed by Congress on agencies that
would withhold records in the face of proper Freedom of Information Act
requests.[FN79] Indeed, the District Court's uncritical acceptance of the
affidavit deprived appellant of the full de novo consideration of its records-
request to which it is statutorily entitled.[FN80] Insofar as the sixteen
documents admittedly withheld are concerned, this litigation must return to the
District Court.
FN78. See Id. at 311-315, 587 F.2d at 1208-1212; text Supra at notes
52-56.
FN79. See text Supra at notes 52-56.
FN80. The District Court's failure to take the " 'hard look' necessary to
assure adherence to congressional purpose," Ray v. Turner, supra note
46, 190 U.S.App.D.C., at 323, 587 F.2d at 1220, is apparent from its
opinion. Noting simply that "Mr. Boardman insists that '(r)elease of any
record or portion thereof would disclose information about the nature of
NSA's activities including its functions,' " and that Pub.L.No.86-36 is an
Exemption 3 statute, the District Court entered summary judgment for NSA
without further ado. Founding Church of Scientology v. NSA, supra note
4, 434 F.Supp. at 633.
III
[3] Appellant raises a second issue on this appeal. It concerns NSA's
claimed inability to locate pertinent documents in addition to the sixteen it
is known to now have in hand. More precisely, appellant argues that under the
circumstances the agency's single affidavit and limited interrogatories-
responses claiming thoroughness in its searches did not suffice to meet its
burden in that regard; additional discovery was imperative, we are told, to
ensure that all relevant records have been unearthed. We agree that NSA did not
demonstrate the *834 **315 unavailability of other materials sufficiently
to entitle it to summary judgment.
Appellant's first request, made in December, 1974, extended to all documents
bearing on its activities and on transmission of information about appellant to
other agencies, governments and individuals. That demand was soon broadened to
include items relating to appellant's founder. In January, 1975, NSA informed
appellant that it had neither established a file or record on these subjects
nor passed on any information of either sort. This response, according to the
Boardman affidavit, was largely "based on negative results of searches
conducted at my request by the NSA organizations having files that may
reasonably have contained information or records of the kinds requested."
[FN81] On five subsequent occasions appellant specified additional subjects and
submitted further details that might aid in locating pertinent materials. In
each instance, Boardman reported, agency units "that could be reasonably
expected to contain records of the kind described" were instructed to search
their files,[FN82] and supposedly "thorough searches" repeatedly failed to
ferret out data of the kind demanded.[FN83]
FN81. J.App. 85.
FN82. J.App. 85, 87-88. On one other occasion, NSA was advised that
appellant possessed a State Department airgram, dated several years
earlier, that had been forwarded to NSA. Appellant sought clarification
with respect to disposition of the airgram; and with information obtained
from the Department of State the airgram was located. Boardman avows that
"since the airgram was not directly required in the conduct of NSA
business, it was not located in any operational file where a reasonable
search . . . might have located it." J.App. 86. It seems ironic that a
document more likely to be releasable because of unimportance to "NSA
business" is one that probably will not be found during a "reasonable"
search. Indeed, it raises some question, to say the least, about the
agency's understanding of "reasonableness."
FN83. J.App. 86-88.
Subsequently, appellant learned in the course of discovery in a Freedom of
Information Act proceeding against the Department of State and the Central
Intelligence Agency that sixteen documents encompassed by appellant's request
had been provided to CIA by NSA and that NSA had advised against their release.
Once informed of that development, NSA contacted CIA to obtain identifying
details; and an ensuing search uncovered fifteen of the sixteen which, Boardman
said, "were found in warehouse storage, not retrievable on the basis of subject
matter content." [FN84] NSA later obtained a copy of the sixteenth from CIA.
FN84. J.App. 89.
Beyond revelations affording this much light, the Boardman affidavit contained
little else material to the processing of appellant's several requests, and
NSA's replies to appellant's interrogatories were almost totally uninformative
in that respect.[FN85] They do explain that searches were made by departments
in which sought-after materials expectably might repose, and that the
organization of the agency's files precluded retrieval on the basis of
information furnished by appellant; and averments superficially similar did
pass muster in the first of our recent Goland decisions.[FN86] However, the
competence of any records-search is a matter dependent upon the circumstances
of the case, and those appearing here give rise to substantial doubts about the
caliber of NSA's search endeavors. More specifically, they pose the question
whether further search procedures were available and within the agency's
ability to utilize without expending a whit more than reasonable effort.
Summary judgment, then, was improper because an issue of material fact
*835 **316 the adequacy of the search was apparent on the record.[FN87]
FN85. About the only bit of information relevant on this point is that set
forth in text Infra at note 90.
FN86. Goland v. CIA, supra note 54. See note 101 Infra.
FN87. See text Infra at notes 94-100.
The Boardman affidavit informs us that "(t)here is no central index to all of
the Agency's files. Some files have records in alphabetical order by name,
title, or subject matter. Other files are in chronological order; of these,
only some, not all, have indexes by name, title, or subject matter of the
records they contain." [FN88] In no way, however, did Boardman attempt to
relate these characteristics of NSA's general filing system to the particular
searches conducted for appellant. All the affidavit says, though over and over,
is that almost always the quests were in vain,[FN89] and that, we believe, does
not satisfactorily dispel the questions arising in the present situation. The
fact that nothing pertinent is found on a file search might suggest, of course,
that nothing pertinent was on file, but here there is a countervailing
circumstance arguing powerfully the other way.
FN88. J.App. 83-84.
FN89. J.App. 83-91.
Despite searches in some number, fifteen responsive documents concededly in
NSA's possession were passed by, and but for help from another intelligence
agency seemingly would never have come to light. NSA tells us that its
"files . . . are oriented to subjects of foreign intelligence interests and are
not structured to permit retrieval by subjects of the type included in
(appellant's) Freedom of Information Act request." [FN90] NSA adds that "(t) he
fifteen records found in warehouse storage (were) not retrievable on the basis
of subject matter content. Only the identifying data supplied by the CIA
enabled NSA to locate copies of the records here." [FN91] The difficulty with
this attempted explanation is that it generates more problems than it solves.
FN90. J.App. 42.
FN91. J.App. 89.
On the one hand NSA states that some of its files are indexed or
alphabetically arranged "by name, title, or subject matter" details appellant
supplied profusely and on the other hand it declares that its files "are not
structured to permit retrieval by subjects of the type included in
(appellant's) requests." And notwithstanding the latter representation, which
would appear to immediately doom any search whatsoever for appellant, NSA
professes to have conducted several, and to have done so "thoroughly." On a
broader scale, since NSA's prime mission is to acquire and disseminate
information to the intelligence community, it seems odd that it is without some
mechanism enabling location of materials of the type appellant asked for,
particularly with identifying details as extensive as those furnished. Even
absent other modes of subject-matter classification, it is not at all apparent
why NSA might not have searched on the basis of "subjects of foreign
intelligence interests" [FN92] likely to be involved. Presumably, CIA was able
to identify the fifteen documents on clues no different from those provided NSA
by appellant and, in turn, to identify them for NSA; just why NSA could not
have done that on its own is hardly evident from what NSA has offered thus far.
[FN93] If there was no other way, just why NSA did not resort to this process
of cross-communication with CIA with respect to other documents demanded by
appellant is not at all clear. NSA has never claimed that the search procedures
it employed were the only methodology *836 **317 feasible and, everything
considered, it has not yet eliminated an unavoidable inference that its
technique may have left something to be desired.
FN92. See text Supra at note 90.
FN93. The circumstances under which appellant learned of NSA's possession
of these documents could be taken as an indication that it was not truly
ignorant of the whereabouts of the documents. The Central Intelligence
Agency indicated in the course of discovery in other proceedings that not
only had it obtained these materials from NSA but also that NSA had
admonished CIA that release should be resisted on the basis of Exemption 1.
See Exhibit L to Complaint.
Lest we forget, the District Court disposed of this litigation by summary
judgment. It is well settled in Freedom of Information Act cases as in any
others that "(s)ummary judgment may be granted only if the moving party proves
that no substantial and material facts are in dispute and that he is entitled
to judgment as a matter of law." [FN94] It is equally settled in federal
procedural law that
FN94. National Cable Television Ass'n v. FCC, supra note 55, 156
U.S.App.D.C. at 94, 479 F.2d at 186 (footnotes omitted).
(t)he party seeking summary judgment has the burden of showing there is no
genuine issue of material fact, even on issues where the other party would have
the burden of proof at trial, and even if the opponent presents no conflicting
evidentiary matter. "(T)he inferences to be drawn from the underlying
facts . . . must be viewed in the light most favorable to the party opposing
the motion." [FN95]
FN95. United States v. General Motors Corp., 171 U.S.App.D.C. 27, 48,
518 F.2d 420, 441 (1975) (footnotes omitted), quoting United States v.
Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176, 177 (1962).
Accord, Adickes v. S. H. Kress & Co., 398 U.S. 144, 160, 90 S.Ct. 1598,
1609-1610, 26 L.Ed.2d 142, 155-156 (1970); Bouchard v. Washington, 168
U.S.App.D.C. 402, 405, 514 F.2d 824, 827 (1975); Bloomgarden v. Coyer,
156 U.S.App.D.C. 109, 114-116, 479 F.2d 201, 206-208 (1973); Nyhus v.
Travel Management Corp., 151 U.S.App.D.C. 269, 281, 466 F.2d 440, 442
(1972).
So, to prevail in a Freedom of Information Act suit, "the defending agency
must prove that each document that falls within the class requested either has
been produced, is unidentifiable, or is wholly exempt from the Act's inspection
requirements." [FN96]
FN96. National Cable Television Ass'n v. FCC, supra note 55, 156
U.S.App.D.C. at 94, 479 F.2d at 186 (footnotes omitted).
When the agency "has not previously segregated the requested class of records
production may be required only 'where the agency (can) identify that material
with reasonable effort.' " [FN97] And, of course, in adjudicating the adequacy
of the agency's identification and retrieval efforts, the trial court may be
warranted in relying upon agency affidavits, for these "are equally trustworthy
when they aver that all documents have been produced or are unidentifiable as
when they aver that identified documents are exempt." [FN98] To justify that
degree of confidence, however, supporting affidavits must be " 'relatively
detailed' and nonconclusory and must be submitted in good faith." [FN99] Even
if these conditions are met the requester may nonetheless produce
countervailing evidence, and if the sufficiency of the agency's identification
or retrieval procedure is genuinely in issue, summary judgment is not in order.
[FN100]
FN97. Goland v. CIA, supra note 54, 197 U.S.App.D.C. at 39.40,
607 F.2d at 353-354, quoting National Cable Television Ass'n v. FCC,
supra note 55, 156 U.S.App.D.C. at 100, 479 F.2d at 192. See
H.R.Rep.No.876, 93d Cong., 2d Sess. 5-6 (1974); S.Rep.No.854, 93d Cong., 2d
Sess. 9-10 (1974). But Cf. Vaughn v. Rosen, supra note 42, 157
U.S.App.D.C. at 348 & n.23, 484 F.2d at 828 & n.23 (encouraging agencies
"to create internal procedures that will assure that disclosable
information can be easily separated from that which is exempt").
FN98. Goland v. CIA, supra note 54, 197 U.S.App.D.C. at 38, 607 F.2d
at 352.
FN99. Id. (footnote omitted), quoting Vaughn v. Rosen, supra note
42, 157 U.S.App.D.C. at 346, 484 F.2d at 826.
FN100. See text Supra at notes 94-96.
NSA did not shoulder the burden cast upon summary-judgment movants by these
salutary principles. Giving appellant the benefit of the inferences favorable
to its cause, the record in its nebulous state simply does not establish the
absence of a triable issue of fact the adequacy of the searches NSA made.
[FN101] To accept its claim *837 **318 of inability to retrieve the
requested documents in the circumstances presented is to raise the specter of
easy circumvention of the Freedom of Information Act. Few if any requesters
will be better informed than appellant on the particulars of data that may have
been obtained clandestinely by a governmental intelligence agency.[FN102] To be
sure, an agency is not " 'required to reorganize its (files) in response to' "
a demand for information,[FN103] but it does have a firm statutory duty to make
reasonable efforts to satisfy it.[FN104] If the agency can lightly avoid its
responsibilities by laxity in identification or retrieval of desired materials,
the majestic goals of the Act will soon pass beyond reach. And if, in the face
of well-defined requests and positive indications of overlooked materials, an
agency can so easily avoid adversary scrutiny of its search techniques, the Act
will inevitably become nugatory. In the situation before us, undiscriminating
adoption of NSA's ill-elucidated assertions of thoroughness in its searches
would threaten to excuse it substantially from the operation of the Act.
FN101. The situation here is significantly variant from that presented in
Goland v. CIA, supra note 54, decided on rehearing, March 28, 1979. When
Goland was first considered by this court, the record on appeal
incorporated affidavit attesting to the reasonableness of the agency's
search, but relatively little to indicate the contrary. 197 U.S.App.D.C.
at 39-41, 607 F.2d at 353-355. The court thus found no error in the grant
of summary judgment for the agency, without awaiting discovery efforts by
the requesters in the bare hope of falling upon something that might impugn
the affidavits. Id. at 41, 607 F.2d at 355.
On rehearing, the court adhered to that holding notwithstanding the
emergence about a year and half after the District Court's judgment of
numerous materials theretofore sought by the requesters, and the agency's
delay of several months more in releasing them. Goland v. CIA, 197
U.S.App.D.C. 25, 53-58, 07 F.2d 339, 367-372 (D.C.Cir. 1979) (opinion on
rehearing). Additional unopposed affidavits filed by the agency on
rehearing explained that because these items were unindexed and largely in
storage among 84,000 cubic feet of inactive data at a retired-records
center, they were irretrievable by normal procedures; and that they were
located only because a law librarian had chanced upon them during the
course of independent research on unrelated projects. Id. at 53-54, 56,
607 F.2d at 367-368, 370. Very importantly, long before these materials
were unearthed the District Court's adjudication on the search issue had
achieved finality, and had passed beyond that court's power to alter on
account of after-discovered evidence. Fed.R.Civ.P. 60(b). Consequently,
whatever evidentiary reflections the sudden appearance of the newly-found
documents might normally have had on the caliber of the original search
were necessarily tempered by the deep-rooted policy fostering the stability
of judgments. See Id. at 56, 607 F.2d at 370.
Goland acknowledged that "the discovery of additional documents is more
probative that the search was not thorough than if no other documents were
found to exist," Id. at 56, 607 F.2d at 370, and that "the delay in
disclosing the documents at least arguably evidences a lack of vigor, if
not candor, in responding to Freedom of Information Act requests," Id.,
but concluded simply that these inferences provided too weak a basis for a
remand under 28 U.S.C. s 2106 (1976) for proceedings envisioning
possible reopening of the District Court's final judgment, even assuming
the propriety of that course of procedure. Id. at 57-58, 607 F.2d at
371-372. See Realty Acceptance Corp. v. Montgomery, 284 U.S. 547, 52
S.Ct. 215, 76 L.Ed. 476 (1932). In the case at bar, however, we encounter
none of these strictures, for unlike Goland there is no problem of evidence
outside the record on appeal. When the District Court ruled, it had before
it all of the vital information tending to indicate that NSA's search was
less than painstaking location of the fifteen documents after communication
with the Central Intelligence Agency, in the milieu of grave uncertainty as
to just what the prior searches had involved and faced. See text Supra at
notes 80-93. And we must remain advertent to the consideration that on
NSA's motion for summary judgment appellant was entitled to the benefit of
all favorable inferences to be drawn from those circumstances. See text
Supra at note 95. The difference between the two cases is thus that
there the court dealt with the portent of post-judgment evidence for
either Rule 60(b) or s 2106, and here the concern is rather with the
impact of record evidence and evidentiary gaps upon the availability of
summary judgment.
FN102. See also note 82 Supra.
FN103. Goland v. CIA (opinion on rehearing), Supra note 101, 197
U.S.App.D.C. at 56, 607 F.2d at 370.
FN104. See text Supra at note 97.
We conclude, then, that the case warranted a more exhaustive account of NSA's
search procedures than it advanced. That *838 **319 reckoning is now due,
and to the extent practicable it should be made on the public record.[FN105]
Following that, it may well become necessary for the District Court to
entertain In camera affidavits [FN106] in order to assess de novo whether NSA
has met its burden. The end result of that degree of attention to the problem
by the litigants and the court may be origination of search procedures at once
efficacious and reasonable. The Freedom of Information Act summons at least a
conscientious effort in that direction.[FN107]
FN105. See text Supra at notes 51-56.
FN106. See text Supra at note 56. In camera review of the sixteen known
documents may become an integral part of the effort to ascertain why they
might have been overlooked during the initial searches.
FN107. We repeat the admonition that "(a)gencies should continue to keep
in mind . . . that 'their superior knowledge of the contents of their files
should be used to further the philosophy of the act by facilitating, rather
than hindering the handling of requests for records.' " S.Rep.No.854,
Supra note 97, at 10, quoting Attorney General's Memorandum on the
Freedom of Information Act 24 (1969).
The summary judgment for NSA is reversed. The case is remanded to the District
Court for further proceedings consistent with this opinion.[FN108]
FN108. Our action is not to be taken as an instruction to the District
Court to Order NSA to canvass its files for responsive records. We remand
simply for fuller enlightenment on the agency's procedures to determine
whether they failed and, if so, to direct it to try anew, this time
utilizing reasonable search procedures that might more fully comport with
the fundamental purposes of the Act.
So ordered.