IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________ STEVEN AFTERGOOD ) on behalf of the ) FEDERATION OF AMERICAN SCIENTISTS ) ) Plaintiff, ) ) v. ) Case No. 1:98CV02107(TFH) ) CENTRAL INTELLIGENCE AGENCY ) ) Defendant. ) ___________________________________)
MEMORANDUM OPINION Pending before the Court is Defendant Central Intelligence Agency ("CIA")'s Motion for Summary Judgment. After careful consideration of Defendant's Motion, Plaintiff's Memorandum in Opposition, Defendant's reply, the arguments presented at the November 1 hearing, and upon a second review of both classified affidavits1 as well as the unclassified affidavit filed by Defendant in this case, the Court will grant Defendant's Motion for Summary Judgment.
1 So the record is clear, I have initialed the classified affidavits which were reviewed in this case.
Background Plaintiff Steven Aftergood, on behalf of the Federation of American Scientists, seeks disclosure under the Freedom of Information Act ("FOIA"), 5 U.S.C. §552, of the Administration's total budget request for fiscal year 1999 for all intelligence and intelligence-related activities. Defendant, the United States Central Intelligence Agency ("CIA"), denied plaintiff's request on the basis that the information is exempt from FOIA's disclosure requirements because it is properly classified under Executive Order 12958 in the interest of national defense or foreign policy (Exemption 1) and because release of this figure would tend to reveal intelligence sources and methods that are specifically exempted from disclosure by statute (Exemption 3). On December 11, 1998, the Defendant moved for summary judgment on the basis of three declarations from George J. Tenet, Director of Central Intelligence ("DCI"), one unclassified filed as an exhibit to Defendant's Motion for Summary Judgment, and two classified which were filed under seal and ex parte for the Court's in camera review. These declarations explain why DCI Tenet believes the release of the figure requested by Plaintiff could reasonably be expected to cause damage to the national security and would tend to reveal intelligence methods and sources.
Discussion I. FOIA Exemption 1
Exemption 1 of FOIA exempts from mandatory disclosure records that are: (A) specifically authorized under criteria established by 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). The Executive Order currently in effect is Executive Order ("E.O.") 12958, "Classified National Security Information."
Courts have prescribed a two-part test, part substantive and part procedural, to be applied in determining whether material has been properly withheld under Exemption 1. Substantively, the agency must show that the records at issue logically fall within the exemption, i.e., that an Executive Order authorizes that the particular information sought be kept secret in the interest of national defense or foreign policy. Procedurally, the agency must show that it followed the proper procedures in classifying the information. Salisbury v. United States, 690 F.2d 966, 970-72 (D.C. Cir. 1982). If the agency meets both tests, it is then entitled to summary judgment. See, e.g., Abbotts v. NRC, 766 F.2d 604, 606 (D.C. Cir. 1985); Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984).
A. The Procedural Requirements of Exemption 1
Based on the unclassified Declaration of DCI Tenet, the CIA has demonstrated that it has followed the proper procedures in classifying the total budget request for intelligence activities. Proper classification must be made by an original classification authority who determines that the information is owned by, produced by or for, or is under the control of the United States Government; that it falls within one or more categories of information set forth in section 1.5 of the Executive Order; and that the information's unauthorized disclosure reasonably could be expected to result in damage to the national security that the original classification authority can identify or describe. See E.O. 12958, §1.2(a); see also 32 C.F.R., §2001.10(b) (Information Security Oversight Office directive explaining that agency classifier must be able to identify and describe damage to national security potentially caused by unauthorized disclosure).DCI Tenet is an official authorized to exercise original TOP SECRET classification authority. Tenet Declaration ¶13; see Presidential Order of 13 October 1995, "National Security Information," 3 C.F.R. §513 (1996); E.O. 12958 §1.4(a)(2). Further DCI Tenet has determined that the amount of the budget request for all intelligence activities is owned by the United States Government, see Tenet Declaration, ¶12; that it falls within the category of information listed at section 1.5(c) of the Executive Order, described as "intelligence activities (including special activities), intelligence sources or methods, or cryptology," see Id.; and that its disclosure reasonably could be expected to cause damage to the national security, see Id. at ¶¶13 et seq.
Plaintiff contends that DCI's determination is at odds with that of the President of the United States and that this conflict renders DCI determination invalid. However, although the President clearly has the authority to do so, the President has never released or ordered the release of, the Administration's budget request or the total appropriated amount for intelligence activities for fiscal year 1999. Therefore, the statement of a Presidential spokesman, made three years earlier, that, as a general matter, the President believed "that disclosure of the annual amount appropriated for intelligence purposes will not, in itself, harm intelligence activities," is neither on point nor in any way legally binding. Plaintiff has offered this Court no evidence that the President has ever addressed the impact of disclosure of the Administration's budget request or the total amount appropriated for intelligence activities for fiscal year 1999. The fact that the President encouraged release of similar information in earlier years is not determinative here. Unless or until the President explicitly orders the release of this information or withdraws his authorization of DCI Tenet to make these classified determinations, and absent a finding by this Court that DCI Tenet was somehow acting in bad faith in refusing to release this information, the Court finds that DCI Tenet is authorized to make this highly fact-dependent classification determination at issue in this case, and that he has properly done so here.
B. The Substantive Requirements of Exemption 1
To demonstrate that the budget request for intelligence falls within Exemption 1, the CIA must also explain why the information at issue properly falls within one or more of the categories of classifiable information, in this case "intelligence sources or methods," see E.O. 12958 § 1.5(c), and why its unauthorized disclosure could reasonably be expected to result in damage to the national security.
When determining whether the records at issue are properly within the scope of the exemption, this Court must "determine the matter de novo." 5 U.S.C. §552(a)(4)(B). In Exemption 1 cases, Congress has indicated and courts have consistently recognized, that an agency's determination as to potential adverse effects resulting from public disclosure of a classified record should be accorded substantial weight. See, e.g., Bowers v. Department of Justice, 930 F.2d 350, 357 (4th Cir. 1991) ("What fact or bit of information may compromise national security is best left to the intelligence experts."); Taylor v. Department of the Army, 684 F.2d 99, 109 (D.C. Cir. 1982) (the agency's determination should be accorded "utmost deference"); Washington Post v. DOD, 766 F.Supp. 1, 6-7 (D.D.C, 1991) (judicial review of agency classification decisions should be "quite deferential"). The agency's determination merits this deference because "[e]xecutive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects [sic] might occur as a result of public disclosure of a particular classified record." Salisbury, 690 F.2d at 970 (quoting S. Rep. No. 1200, 93rd Cong., 2d Sess. 12 (1974)). Thus, summary judgment for the government in an Exemption 1 FOIA action should be granted on the basis of agency affidavits if they simply contain "reasonable specificity" and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith. Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980).
DCI Tenet's Declarations meet this deferential standard. Essentially, DCI Tenet explains that disclosure of the budget request reasonably could be expected to cause damage to national security in several ways 2: (1) disclosure "reasonably could be expected to provide foreign governments with the United States' own assessment of its intelligence capabilities and weaknesses," Tenet Declaration ¶14; (2) disclosure "reasonably could be expected to assist foreign governments in correlating specific spending figures with particular intelligence programs," Tenet Declaration ¶16; and (3) official disclosure could be expected to free foreign governments' limited collection and analysis resources for other efforts targeted against the United States, Tenet Declaration ¶18.
2 Further bases for these determinations are included in the classified Tenet Declarations reviewed by this Court.
Obviously, DCI Tenet cannot be certain that damage to our national security would result from release of the total budget request for 1999, but the law does not require certainty or a showing of harm before allowing an agency to withhold classified information. Courts have recognized that an agency's articulation of the threatened harm must always be speculative to some extent, and that to require an actual showing of harm would be judicial "overstepping." See Halperin, 629 F.2d at 149. In the area of intelligence sources and methods, the D.C. Circuit has ruled that substantial deference is due to an agency's determination regarding threats to national security interests because this is "necessarily a region for forecasts in which the CIA's informed judgment as to potential future harm should be respected." Gardels v. CIA, 699 F.2d 1100, 1106 (D.C. Cir. 1982). Further, the Court noted that "the CIA has the right to assume that foreign intelligence agencies are zealous ferrets," Id.In this case, plaintiff has offered no contrary record evidence undermining the validity of DCI Tenet's highly fact-dependent determination. First, the Brown Commission's 1996 recommendations in favor of disclosure are not binding on this Court. The Brown Commission was a congressionally-chartered commission made up of private citizens who lacked classification authority and who made non-binding recommendations to Congress and the President on intelligence matters. Neither Congress nor the President ever enacted the Brown Commission's recommendation on public disclosure of the intelligence budget. Nor did the Brown Commission ever consider the precise issue of classification presented here: whether, in 1999, and under the circumstances described in DCI Tenet's unclassified and classified declarations, it would recommend disclosure of the budget figures for that particular year.
Second, the fact that DCI Tenet disclosed the total intelligence budget in prior years is not necessarily adverse record evidence. On the contrary, this Court finds that it indicates DCI Tenet's careful, case-by-case analysis of the impact of each disclosure and his willingness to accommodate budget requests whenever possible. When he made these prior disclosures, DCI Tenet emphasized that he would continue to make that case-by-case determination in future years. Tenet Declaration ¶7. Here, DCI Tenet has explained, in both his classified and unclassified declarations, the rationale underlying his predictive judgment that release of the figures for fiscal year 1999 could reasonably he expected to cause damage to national security. Therefore, the Court must defer to DCI Tenet's decision that release of a third consecutive year, amidst the information already publicly-available, provides too much trend information and too great a basis for comparison and analysis for our adversaries.
II. FOIA Exemption 3
The CIA is also entitled to summary judgment on the basis that the budget request is exempt from disclosure under FOIA Exemption 3. Exemption 3 excludes from mandatory disclosure information that is "specifically exempted from disclosure by statute... provided that such statute requires that the matters be withhold from the public in such a manner as to leave no discretion on the issue, or establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. §552(b)(3)(A) & (B).
In examining an Exemption 3 claim, a court must determine, first, whether the claimed statute is a statute of exemption under FOIA, and, second. whether the withheld material satisfied the criteria of the exemption statute. CIA v. Sims, 471 U.S. 159, 167 (1985); Fitzgibbon v. CIA, 911 F.2d 755, 761 (D.C. Cir. 1990). In this case, the CIA has withheld information from plaintiff because DCI Tenet has determined that the budget request falls within Section 103(c)(6) of the National Security Act of 1947, as amended, 50 U.S.C. §403-3(c)(6) (formerly section 403(d)(3)), which requires the DO to "protect intelligence sources and methods from unauthorized disclosure." It is well settled that section 403-3(c)(6) falls within Exemption 3. Sims, 471 U.S. at 167. Thus, the Court need only consider whether the Administration's budget request fails within that statute. Id.
There is no doubt that the scope of the statue is broad; as the Supreme Court has commented, "[p]lainly the broad sweep of this statutory language comports with the nature of the [CIA's] unique responsibilities." Sims, 471 U.S. at 169. The legislative history of §403-3(c)(6) also makes clear that Congress intended to give the [DCI] broad authority to protect the secrecy and integrity of the intelligence process." Id. at 170. To establish that the budget request is exempt under FOIA, therefore, the CIA need only demonstrate that the information "relates" to intelligence sources and methods. Fitzgibbon, 911 F.2d at 762. Like the DCI's determination under Exemption 1, the DCI's determination under Exemption 3 is entitled to "substantial weight and due consideration." Id.
One nexus between the Administration's budget request and "disclosure of intelligence sources and methods" is found in the special appropriations process used for intelligence activities. Disclosure of the budget request would tend to reveal "how and for what purposes intelligence appropriations are secretly transferred to and expended by intelligence agencies." Tenet Declaration ¶20.
There is no single, separate appropriation for the CIA. Appropriations for the CIA and other agencies in the intelligence community are hidden in the various appropriation acts. Id. ¶21. The locations are not publicly identified, both to protect the classified nature of the intelligence programs that are funded and to protect the classified intelligence methods used to transfer funds to and between intelligence agencies. Id. Sections 5(a) and 8(b) of the CIA Act of 1949, 50 U.S.C. §§403f, 403j, provide the legal authorizations for the secret transfer and spending of intelligence funds. Id. ¶23. DCI Tenet has asserted that since there are a finite number of places, where intelligence funds may be hidden in the federal budget, a budget analyst could construct a hypothetical intelligence budget by aggregating suspected intelligence line items from the publicly-disclosed appropriations and that repeated disclosures of either the budget request or the budget appropriation would provide more data with which to test and refine the hypothesis. Id. Plaintiff denies the viability of this argument but provides no conclusive evidence of its implausibility.
Several courts have held that information tending to reveal the secret transfer and spending of intelligence funds is exempt from disclosure under FOIA as an "intelligence method." See, e.g., Military Audit Project v. Casey, 656 F.2d 724, 745 (D.C. Cir, 1981). Therefore, because DCI Tenet has determined that release of the total budget request would tend to reveal secret budgeting mechanisms constituting "intelligence methods," it is also exempt from disclosure under FOIA Exemption 3.
Conclusion The Declarations of DCI Tenet logically establish that release of the Administration's budget request for fiscal year 1999 could reasonably be expected to result in harm to the national security and to reveal intelligence "sources and methods." On the basis of these declarations and the entire record in this case as well as the discussion above, this Court will grant the CIA's Motion for Summary Judgment. An order will accompany this Memorandum Opinion.
Thomas F. Hogan
November 12, 1999
United States District Judge
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________ STEVEN AFTERGOOD ) on behalf of the ) FEDERATION OF AMERICAN SCIENTISTS ) ) Plaintiff, ) ) v. ) Case No. 1:98CV02107(TFH) ) CENTRAL INTELLIGENCE AGENCY ) ) Defendant. ) ___________________________________)
ORDER In accordance with the accompanying memorandum opinion, it is hereby
ORDERED that Defendant Central Intelligence Agency's Motion for Summary Judgment is granted. It is further hereby
ORDERED that this case is dismissed with prejudice.
Thomas F. Hogan
November 12, 1999
United States District Judge