Document Type: 
Document Number (FOIA) /ESDN (CREST): 
Release Decision: 
Original Classification: 
Document Page Count: 
Document Creation Date: 
December 15, 2016
Document Release Date: 
October 24, 2003
Sequence Number: 
Case Number: 
Publication Date: 
February 3, 1981
Content Type: 
PDF icon CIA-RDP84-00933R000400130009-7.pdf2.13 MB
Approved For Release 2003/12/09 : CIA-RDP84-00933R000400130009-7 MEMORANDUM FOR: General Counsel ODP-81-157 3 FEB 1981 O FROM: Bruce T. Johnson Director of Data Processing SUBJECT: Impact of SIMS Decision REFERENCE: Memo from C/IPD/OIS/DDA, dated 31 Dec 1984, same subject The Office of Data Processing maintains no contacts with non-governmental personnel or organizations whose identities should not be disclosed under the FOIA. i.S'o ark /s/cruse, Bruce T. Johnson cc: C/IPD/OIS/DDA O/D/ODP Original - Addresse 2 - O/D/ODP 2 - ODP Registry 3 Feb. 81 Approved For Release 2003/12/09 : CIA-RDP84-00933R000400130009-7 Approv-A6jW!MA 2j at O 0400130009-7 31DEC1980 MEMORANDUM FOR: See Distribution STAT FROM: Chief, Information and Privacy Division, OIS SUBJECT: Impact of Sims Decision 1. A meeting was held in OGC on 22 December 1980 to discuss measures that should be taken to ensure the confidentiality of relationships between the CIA and its "sources" in light of the opinion of the U.S. Court of Appeals for the District of Columbia Circuit in the case of John Cary Sims et al. v. Central Intelligence Agency et al. A copy of this opinion is attached, along with a memo from OGC to the NFAC/FOIO on the same subject. 2. Consideration is being given to promulgating an Agencywide notice, but, before taking such a step, it would be helpful to have a comprehensive list of the various categories of Agency contacts requiring protection whose identities might be difficult to deny under exemption (b)(3) in view of the narrowly construed definition of "source" provided in the Sims decision. 3. OGC is of the opinion that there should be no problem with respect ontractors. OGC also believes inorman- would be adequately protected un er the current procedures, whereby they are routinely asked whether they wish to have their identities protected. u. If your component maintains contacts with nongovernmental per- sonnel or organizations whose identities should not be disclosed under the FOIA, and it is uncertain whether the courts would regard them as legiti- mate intelligence sources, please describe the nature of these contacts in a memorandum to OGC, to the attention of IPD would appre- ciate receiving an information copy of any such memoranda. Attachments: a/s Approved For Release 2003/12/09 : CIA-RDP84-00933R000400130009-7 Y ADMINISTRATIVE. INTERNAL DSE ONU Approved For Release 2003/12/09 : CIA-RDP84-00933R000400130009-7 Approved For Release 2003/12/09 : CIA-RDP84-00933R000400130009-7 Approved Foelease 2003/12/09 CIA-RDP84-0093GR000400130009-7 OGC 80-09258 18 November 1980 MEMORANDUM FOR: Freedom of Information Officer, NFAC STAT FROM Office of General Counsel Sources of Information or Analysis : Impact of John Cary Sims v. Central Intelligence Agency on NFAC Analysts' Contacts with Academics and Other Human 1. As you know, on 29 September 1980, the United States Court of Appeals for the District of Columbia Circuit decided Sims v. Central Intelligence Agency, a Freedom of Information -Act case. The decision contains a new definition of "intelligence source," which indicates that NFAC analysts should elicit certain statements from academic or other .human source contacts to try to ensure protection of their identities from exposure in any FOIA litigation which might arise. The case also affects what NFAC analysts may tell ..contacts about how protectable from disclosure their identities are. 'While the Appeals Court's decision is binding authority only upon lower federal courts in its Circuit, federal district courts elsewhere are apt to follow Sims as at least persuasive authority.- 2. Under the FOIA, this Agency need 'not disclose to a requester any portions of files or records that would reveal intelligence sources or methods. According to Sims, "an 'intelligence source' is a person or institution that provides, has provided, or has been engaged to provide the CIA with information of a kind the Agency needs to perform its intelli- gence function effectively, yet could not reasonably expect to obtain without guaranteeing the confidentiality of those who provide it." [Emphasis added.] 3. From the legal and evidentiary standpoint, the best method for safeguarding identities thus is to elicit where possible from the academic contact or researcher a signed, written statement that he or she is supplying analysis or information only upon the express understanding and condition that the NFAC analyst and this Agency. have promised to keep his or her identity confidential and in the expectation that Approved For Release 20.03/12/09 : CIA-RDP84-00933R000400130009-7 4 Approved Flease 2003/12/09: CIA-RDP84-0099000400130009-7 his or her privacy will be respected. If operational, security, or other considerations make it impossible to obtain such a written statement, then the NFAC analyst should elicit a substantively identical oral statement from the contact, and draft and sign a contemporaneous memorandum recording the substance, date, and time of the statement and indicating explicitly that statement and memorandum were made at essen- tially the same juncture. Although obtaining a written statement signed by the contact would be legally preferable, this Office believes that preparation of such a memorandum would also probably satisfy Sims. in either event, the elicited statement should be made a matter of record in NFAC If the analyst is already engaged in an ongoing relationship with a contact, he or she should obtain a similar statement with respect to any further information or analysis to be provided in the future.. It might also be helpful to obtain a statement that the relationship has proceeded from the outset on such a confidential footing -- although whether this would have the desired legal effecti s not certain. If the relationship with the academic is on a formal contractual basis, the contract used should contain a clause promising that confidentiality will be protected. 4. Elementary fairness requires that the analyst tell his or her contacts that this Agency cannot absolute guarantee utterly unassailable confidentiality, because the law is not precisely settled. Sims indicates very, very strongly that the approaches advocated in paragraph 3 would- suffice to immunize identities against FOIA disclosure, but the case does not-explicitly and directly so hold in so many words. 5. This Office recommends that NFAC develop and adopt systematic procedures for eliciting, recording and filing the written or oral contact statements described above, rather than simply distributing this memorandum to the NFAC analysts themselves-and allowing each to interpret and implement it according to his or her own individual lights. Approved For Release 2003/12/09 : CIA-RDP84-00933R0004001.30009-7 2 - Approved For Release 2003/12/09 : CIA-RDP84-00933R000400130009-7 ~~.e.~r G GL 3i.tttttri O#utru t!uurt of Apiruhi Nos. 79-2203 & 79-2554 Appeals from the United States District Court for the District of Columbia (D.C. Civil Action No. 78-2251) Argued May 28, 1980 Notices This opinion is subject to formal revision before publication in the Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify the Clerk of any formal errors in order that corrections may be made before the bound volumes go to press. FOR THE .DISTRICT OF COLUMBIA CIRCUIT JOHN CARY SIMS et at. V. CENTRAL INTELLIGENCE AGENCY et al., APPELLANTS Decided September 29, 1980 Michael Kimmel, Attorney, Department of Justice, with whom Alice Daniel, Assistant Attorney General, Charlec F. C. Ruff, United States Attorney, and Robert F. Kopp, Attorney, Department of Justice, were on the brief, for appellants. Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time. -',Approved For Release'2003/12/09 :.CIA-RDP84-0 Approved For Release 2003/12/09 : CIA-RDP84-00933R000400130009-7 !Paid :ilau Levy, with whom David C. Vladeck and :Alan B. illq,rrisun were on the brief, for appellees. lic(ure WUIGIIT, Chief Judge, MIKVA, Circuit Judge, and AIAui< y,' Chief Judge, United States Court of Cus- tunis and Patent Appeals. Opinion for the court filed by Chief Judge WRIGHT. Opinion dissenting in part filed by Chief Judge MAUKEY. WRIGWT, Chief Judge: This appeal presents two issues concerning the obligations of the Central Intelligence Agency (CIA) under the Freedom of Information Act (FOIA).' In response to a citizen request for the names of persons and institutions who conducted scientific and behavioral research under contracts with or funded by the CIA, the Agency asserts two statutory exemptions from the disclosure requirements' of the FOIA. Invoking Exemption 3,2. the Agency claims that the requested ma- terial is "specifically exempted from disclosure" by the terms of the. National Security Act.' The Agency also ? Sitting by designation pursuant to 28 U.S.C. ? 293(a) (1976). 15 U.S.C.? 552 (1976). 25 U.S.C. ? 552 (b) (3) (1976). Exemption 3 authorizes withholding of documents that concern matters "specifically exempted by statute" from the disclosure requirements of the FOIA. See text at note 30 infra (quoting provision in full). ' National Security Act of 1947, ch. 343, 61 STAT. 496 (1947) (codified in scattered sections of 5 & 50 U.S.C.). The Agency relies on ? 102(d) (3) of the Act, 50 U.S.C. ?403(d) (3) (1976), which authorizes the Director of Central Intel- ligence to protect "intelligence sources and methods from un- authorized disclosure[.]" The CIA argues that the persons and institutions who conducted the research involved in this case are "intelligence sources" within the meaning of the statute. cites Exemption 6, which shields "personnel and medical files and similar files the disclosure of which would con- stitute a clearly unwarranted invasion of personal pri- vacy[.]" I The District Court denied the applicability of either exemption to the facts in issue and granted sum- mary judgment to the appellees who requested the docu- ments.0 In reviewing the District Court's analysis of the j,-sue presented under Exemption 3, we are unable to conclude that the court reached its decision through ap- plication of the proper legal standard. We therefore ~^ mand the case for additional proceedings. With reg to Exemption 6, the decision of the District Court is affirmed, although, as explained below, we differ with the court's analysis of the issue presented. 1. FACTS AND PROCEDURAL BACKGROUND A. Facts Between 1953 and ' 1966 the CIA sponsored extensive research concerning "chemical, biological, and radiologi- cal materials capable of employment in clandestine operations to control human behavior."' Code-named MKULTRA, the CIA's research program included 149 subprojects undertaken on a contract basis. CIA records document the participation of at least 80 institutions arr 185 researchers.' Because the CIA funded MKULT1 . largely through a front organization, many of the par- 4 5 U.S.C. ? 552(b) (6) (1976). 6 The opinion of the District Court, as amended August 13, 1979, is reported at 479 F.Supp. 84 (D. D.C. 1979). 'Final Report of the Select Committee to Study Govern- mental Operations with Respect to Intelligence Activities, S. Rep. No. 94-755, 94th Cong., 2d Sags., Book I at 389 (197G) (footnote omitted) (hereinafter cited as "Church Committee Final Report"). I Brief for appellants at 10. oved For Release 2003/12/09 : CIA-RDP84-00933R000400130009-7 4 Approved For Release 2003/12/09 : CIA-RDP84-00933R000400130009-7 5 ticipating individuals and institutions apparently had no knowledge of their involvement with the Agency.a On the basis of available documents, it appears that the CIA originally conceived MKULTRA as a defensive response to possible use by the Soviets and the Chinese of chemical and biological agents as instruments of in- terrogation and brainwashing.' Later, however, the agency expanded the scope of the program to include efforts to develop chemical and biological agents for use by the CIA. At least some of the subprojects tested chemical and biological substances by administering them to human subjects. Some of the subjects volunteered for their experimental role. Others were unwitting partici- pants, who may never have known what happened to them. At least two persons died as the result of MKULTRA experiments. The extent of possible damage to the health of others remains unknown, becauso CIA records fall to disclose the identities of all experimental subjects. The abuses associated with MKULTRA achieved broad publicity as a result of investigations and published re- ports by an executive commission chaired by Vice Presi- dent Nelson Rockefeller 1? and a congressional committee s Brief for appellants at 10. ' For an account of MKULTRA research and abuses, see generally Church Committee Final Report, supra note 6, at 385-422, 471-472, reprinted in Addendum to Brief for Appel- lant at 12-51; Joint Hearings Before the Senate Committee on Intelligence and the Subcommittee on Health and Scien- tific Research of the Senate Committee on Human Resources, "Project MKULTRA, The CIA's Program of Research in Behavioral Modification," 95th Cong., 1st Sens. (Aug. 3, 1977) (hereinafter cited as "Joint Hearings") ; Report to the President by the Commission on CIA Activities Within the United States 226-228 (1975) (hereinafter cited as "Rockefeller Commission Report"). 10 The Rockefeller Commission Report, supra note 9, was completed in 1975. led by Senator Frank Church." Nonetheless, the details of the project's history remain mysterious. At the direc- tion of then Director Richard Helms, the CIA destroyed most of its substantive records pertaining to the project in 1973. Investigative efforts therefore depended largely on oral testimony. In 1977, however, the Agency located some 8,000 pages of previously undisclosed documents related to the project." Consisting mostly of fiscal and financial records, the new material had escaped the search of the archivists who conducted the earlier purge. '' addition to general descriptions of 149 subprojects, . , new documents contained the names of persons and in- stitutions who had contracted to undertake research. Upon discovery of the project data, CIA Director Stansfield Turner notified the Senate Select Committee on Intelligence, and he testified at a joint hearing of the Select Committee on Intelligence and the Subcommittee on Health and Scientific Research of the Senate Com- mittee on Human Resources. The CIA subsequently pro- vided the Joint Committee first with summary reports and then with copies of the documents themselves. Al- though the CIA's records listed participating researchers and institutions, Admiral Turner requested that the Com- mittee treat the names as confidential. The Committee has honored this request. ,,, 11 The Church Committee Final Report, supra note 6, was compiled prior to the discovery by the CIA of the documents that are the subject of the present FOIA request. Those docu- ments were, however, made available to the Joint Senate Committee comprised of the Senate Select Committee on Intelligence and the Subcommittee on Health and Scientific Research of the Senate Committee on Human Resources. See Joint Hearings, supra note 9. 12 Brief for appellants at 12. Approved For Release 2003/12/09 : CIA-RDP84-00933R000400130009-7 B,. F01A Request and Litigation In a letter dated August 22, 1977, following the con- clusion of congressional hearings, John C. Sims and Dr. Sidney M. Wolfe-respectively an attorney and a phy- sician employed by the Nader group Public Citizen- filed a request under the Freedom of Information Act for a list of the names of institutions and researchers who had conducted research under the MKIII4TI(A. program, as revealed in any existing MKULTRA documents." Ac- cording to submissions filed with the court by the CIA, the documents within the scope of the appellees' re- quest contain a total of 265 names: the names of 80 institutions and 185 individual researchers. Upon re- ceipt of the document request, the CIA contacted each of the 80 institutions to ask if they would consent to disclosure of their identities. The Agency made no parallel effort to communicate with the individual re- searchers. Of the 80 institutions, 59 agreed to disclos- ure. Their names were revealed to appellees on June 13, 1978. The Agency has also permitted appellees to ex- amine the surviving financial records for the MKULTRA subprojects undertaken by the other persons and institu- tions, but with their names deleted. In other words, the CIA continues to withhold the names of the 21 research institutions that declined to authorize release of their identities as well as the names of all of the 185 in- dividual researchers listed in MKULTRA files. Dissatis- fied with the extent of the Information provided to them, "Although the FOIA Imposes no burden of justification, appellees Stets and Wolfe have argued that only by Identi- fying and approaching Individual researchers would it be pos- sible to discover information of groat public interest: the scope of MKULTRA experim ntation, the substantive find- ings of the research, the aide effects of various drugs, and the identities of expcrbne-tai subjects, Brief for appellees at 26.28. 7 appellees brought this FOIA action on November 30, 1978. In a memorandum opinion dated April 12, 197914 the District Court held that the institutions and researchers did not, as asserted by the CIA. qualify for withholding under Exemption 3 because they did not constitute "in- telligence sources" within the meaning of 50 U.S.C. ? 403 (d) (3). With regard to the Exemption 6 argument, the court requested that the parties submit supplemental memoranda on the relevance of possible express or plied promises by the CIA to maintain the confidentia'ty of the researchers whose work it had funded." The court also asked the CIA to draft letters to the re- searchers and institutions soliciting their understandings of Agency obligations to maintain secrecy." On May 14, 1979 the CIA submitted a further memorandum, an affidavit by Admiral Turner," and a draft of a form letter suitable for mailing to individual researchers. But the Agency declined to assert reliance on a contract theory as its basis for withholding, and it reargued its position that the involved institutions and researchers should be considered "intelligence sources" as a matter of law. In an opinion of August 7, 1979 Judge Oberdorfer rejected both defenses.'S The court adhered to its prior holding that the institutions and researchers did not consti "intelligence sources" because the Agency had not sh k . that "its decision to treat the MK-ULTRA institutions and researchers as `intelligence sources' under ? 403 (d) (3) is not an overbroad application of the term, too sus- ' opinion is printed in the Appendix (App.) at 81-85. "App. 84. 18 Id. IT Reprinted in App, at 88-97. "Sims v. CIA, 479 F.Supp. 84 (D. D.C. 1979) (as amended Aug. 13, 1979). 8 Approved For Release 2003/12109 : CIA-RDP84-00933R000400130009-7 ceptible to administrative discretion to pass muster under [FOIA Exemption] (b) (3)."" Regarding Exemption 6, the court determined that it could not accept the position of the Agency without additional information as to whether "any researcher had any reasonable expectation that his or her participation would be anonymous, as to whether any researcher has any other privacy interests which might be compromsied by disclosure * * * or whether any researcher has any other objection or rea- son for objection to disclosure of his or her name." " Judge Oberdorfer again invited the CIA to communicate with the individual researchers and apprise the court of their responses by October 1, 1979. The court also gave the Agency additional time to reconsider its decision not to rely on Exemption 1 to the FOIA, which authorizes withholding of documents that are properly classified in order to protect national security interests in defense or foreign policy.21 The CIA chose not to pursue the sug- Id. at 87. 20 Id. at 89. Exemption 1, 5 U.S.C. ? 552(b) (1) (1976). immunizes from compulsory disclosure matters that are: (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact .properly classified pursuant to such Executive order[.] Executive Order 12065, 43 FED. REC. 28949 (July 3, 1978), currently permits classification of information within three categories: 1-102. "Top Secret" shall be applied only to informa- tion, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security. 1-103. "Secret" shall be applied only to information, the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national se- curity. 1-104. "Confidential" shall be applied to information, the unauthorized disclosure of which reasonably could gestions of the District Court. The Agency adhered to its view that its Exemption 6 claim required no com? munication with the individual researchers, and it filed no papers asserting that the names in issue could properly be classified to protect the national' security under Ex- emption 1.0 A final judgment ordering disclosure of the researchers' uamee was entered on November 30, 1979.=' This appeal ensued. be expected to cause identilt*ble damn to the national security. i 11 Id. at 28950, ?? 1-102-1-104. The court's invitation to tic CIA to cite Exemption 1 could scarcely have been more ex- plicit: The Court also notes that the policy objectives which concern the Director might very well be accommodated by classifying the lists of names of institutions and re- searchers pursuant to Executive Order 12065, so that the lists would be exempt from disclosure by 5 U.S.C. ?552(b)(1). In fact, the lists were once so classified, but the defendant has since elected to declassify them so that they are not now exempt under (b) (1). Nothing in the Court's ruling that (b) (3) is inapplicable to the lists here at issue is intended to foreclose (or approve) new classification of the lists and resort to section (b) (1) in order to protect any commitment to anonymity made by defendants to any institution or researchers. The ef- fective date of the accompanying order has been set forward to October 1, 1979 in order to permit the fendant to reexamine and act on the possibility of cl sifying the names of institutions and researchers which would otherwise be disclosable and to amend the motion and opposition to invoke (b) (1), if it should elect to do 80. Sims v. CIA, supra note 18, 479 F.Supp. at 88 (footnote omitted). 22 Defendant's Response to Plaintiffs' Motion for Issuance of a Final Order, App. at 113, 114-115 (Nov. 27, 197.9). 23 Reprinted in App. at 117. 10 Approved For Release 2003/12/09 : CIA-RDP84-00933R000400130009-7 11 II. FREEDOM OF INFORMATION ACT The Freedom of Information Act, under which this case arises, prescribes with unmistakable clarity the role of the courts in evaluating agency claims of exemption. The basic policy of the Act is to compel disclosure. The burden is always on the agency to support any claim of a right to withhold, b U.S.G. ? 552(a) (3) (1976), and the courts are authorized to undertake do navo review of agency constructions of applicable statutes and of agency determinations that particular records fall with- in exemption classifications. Id a4 In weighing claims asserted by an agency as intimately connected with national security as the CIA, courts may feel a natural disposition to proceed with some deference. Even in this delicate context, however, Congress has indicated that the basic FOIA policy of maximum dis- closure must be enforced in appropriate cases by the courts.25 Two amendments to the Freedom of Information Act, both adopted in response to deferential decisions by the Supreme Court, clearly signal congressional intent con- cerning the judicial role. The first amendment responded to EPA v. Mink, 410 U.S. 73, 81-84 (1973), in which the 24 Courts were given authority to review de nova any denial of access "in order that the ultimate decision as to the pro- priety of the agency's action is made by the court and [to] prevent [review] from becoming meaningless judicial sanc- tioning of agency discretion." S. Rep. No. 813, 89th Cong., 1st Sess. 8 (1965). 25 Congress specifically addressed this issue when it over- rode President Ford's veto to pass the 1974 Amendment au- thorizing de novo review of agency classification decisions in national security cases. The legislative history of this provi- sion, which became 5 U.S.C. ? 552(b) (1), is extensively re- hearsed in Ray v. Turner, 587 F.2d 1187, 1206-1214 (D.C. Cir. 1978) (Wright, C.J., concurring). Court affirmed nondisclosure under Exemption 1, the "national security" exemption to the FOIA, solely on the basis of an agency affidavit. Exemption 1 then covered matters "specifically required by Executive order to be. kept secret in the interest of the national defense or foreign policy," *4 and the Court construed the provision as withholding judicial authority to test the propriety of executive classifications. Within two years Congress re- versed Mink by legislation. As modified, Exemption 1 now requires that, in order to qualify for the exemption, information must "in fact [be] properly classified suant to ' * * Executive order." r Its terms thus -- mand judicial determination of the relation of various documents to the national security and, accordingly, re- view of agency records in order for courts to determine the propriety of classification.' Congress moved similarly to nullify the decision ren- dered by the Supreme Court in FAA Administrator v. Robertson, 422 U.S. 255 (1975). Exemption 3 originally applied to any "matters specifically exempted from dis- closure by statute." 29 After the Robertson Court held that this language encompassed a statute granting broad agency discretion- to determine whether information should be withheld, Congress, concerned that the Court's construction threatened the purposes of the FOIA, quickly amended the Act. Exemption 3 now authorizes non closure of matters "specifically exempted from disclos l- by statute" only where the exempting provision either "(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 with- 2G r, U.S.C. ? 552(b,` (1) (1970). 27 5 U.S.C. ? 552 (b) (1) (1976). 28 5 U.S.C. ? 552(a) (4) (B) (1976). 29 5 U.S.C. ? 552(b) (3) (1970). 12 Approved For Release 2003/12/09 : CIA-RDP84-00933R000400130009-7 13 holding or refers to particular types of matters to be withheld [.]11 " In the case at bar the CIA rests its claim of a right to withhold, as it must, on specific exemptions provided by I the FOIA. The CIA is not exempt from the FOIA. Con- gress has determined that the requirements of national security are satisfied by the specific structure of exemp- tions created by statute. Within the statutory framework the CIA is entitled to rely on any or all of the nine FOIA exemptions. In previous cases brought before this court the Agency has relied most frequently on Exemption 1, pertaining to mat- ters classified in order to protect the national security." But the CIA. Is not limited to that oxomption, or roquired to invoke it in a particular case. It has chosen not to invoke it in this one. Denial of protection claimed for documents under one exemption does not, of course, mean that the same or similar material would not be exempt from disclosure i. another exemption were invoked and its procedures prop- erly satisfied. But the burden is always on the agency to justify nondisclosure under the terms of the specific ex- emption or exemptions that it claims. In this case the CIA has based its claim on two exemptions from among the nine: the Exemption 3 exception for matters specifi- cally protected by statute and the Exemption 6 shield for personnel and similar files. III. EXEMPTION 3 A. Issue Presented This court has held consistently that Section 102(d) (3) of the National Security Act of 1947, 50 U.S.C. ? 403 20 5 U.S.C. ? 552(b) (3) (1976). u See, e.g., Ray v. Turner, supra note 25; Phillippi v. CIA, 546 F.2d 1109 (D.C. Cir. 1976). (d) (3) (1976), which authorizes the Director of Central Intelligence to protect "intelligence sources and methods" from unauthorized disclosure, "establishes particular cri- teria for withholding or refers to particular types of matters to be withheld" and thus qualifies as a withhold- ing statute under Exemption 3. E.g., Goland v. CIA, 607 F.2d 839, 360 (D.C. Cir. 1978), cert. denied, . U.S. , 48 U.S. L. WEEK 3602 (March 17, 1980) ; Marks v. CIA, 590 F.2d 997 (D.C. Cir. 1978). Our Section 403(d) (3) cases have mostly involved questions of the degree of factual specificity a CIA affidavit m attain in order to enable a court to determine that p _ ticular documents come within its terms. E.g., Goland v. 014, aupra, 607 P.2d at 361; lay *, 7'u r, 587 1r.2d 1187, I19G-1197 (D.C. Cir. 1978). Other cases have con- sidered the conditions under which a court should under- take de novo review of the accuracy of facts alleged in a CIA affidavit claiming a right to withhold under Exemp- tion 3. E.g., Ray v. Turner, supra, 387 F.2d at 1194- 1195; Weissman v. ' CIA, 565 F.2d 692 (D.C. Cir. 1977). Never, however, have we undertaken expressly to con- strue the term "intelligence sources and methods." We have simply assumed the phrase to have a plain meaning. The question of statutory construction presented by this case is therefore one of first impression, in which there is little precedent to guide us. We must determine, or provide guidelines for determining, whether the researe ers and institutions whose names the CIA seeks to wih - hold constitute "intelligence sources" within the mean: of Section 403(d) (3).3: Although we have never before been asked to construe this term, our cases make clear the guidelines within which construction of exempting statutes under Exesnp. a= The Agency makes no claim that any of the information here in issue must be withheld in order to protect intelligence "methods." ? 14 Approved For Release 2003/12/09 : CIA-RDP84-00933R000400130009-7 Lion 3 must proceed. "The words of the statute and the relevant precedents establish the kinds of matters that are exempt and any necessary procedural steps that are required for exemption." Ray v. Turner, supra, 587 F.2d at 1214 (Wright, C.J., concurring). Moreover, we must take care that terms susceptible of expansive interpreta- tion are construed "with sensitivity to the 'hazard [s] that Congress foresaw."' Founding Church of Scien- tology v. Nat'l Sccurit y Agency, 610 F.2d 824, 829 (D.C. Cir. 1979) (brackets in original), quoting American Jewish Congress v. Kreps, 574 F.2d 624, 629 (D.C. Cir. 1978). In order to carry out "Congress' intent to close the loophole created in Robertson," Founding Church of Scientology v. Nat'l Security. Agency, supra, 610 F.2d at 829, quoting Ray v. Turner, supra, 587 F.2d at 1220 (Wright, C.J., concurring), courts must guard against expansion of the "particular types of matters" Congress has exempted from disclosure in a way that would create broad agency discretion of the very type that Congress sought to eliminate. Because the term "intelligence methods and sources" appears in the text of the National Security Act, it is appropriate for us to begin our analysis with the con- struction proposed by the CIA, an agency chartered by that statute and charged with major responsibility for its administration. See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 431 (1975) ; Skidmore v. Swift, 323 U.S.' ? 134, 138-140 (1944). But we must not shrink from the responsibility vested in us by Congress. The question presented is one of law reserved ultimately to our de- termination. B. CIA Interpretation On this appeal the CIA argues for a standard under which the term "intelligence source" is defined to mean "any individual, entity or medium that is engaged to provide, or in- fact provides, the CIA with substantive information having a rational relation to the nation's external national security.""" The Agency candidly con- cedes that this is a broad definition, which would apply even to periodicals-including Pravda and the New York Times-from which it culls information that informs its view of foreign nations W )d their policy intentions.' The CIA supports its construction of the National Security Act primarily through an appeal to policy con- siderations.115 The Agency argues that the complexity of its mission makes necessary an expansive definition b ? i enough to encompass those who give assistance to clan s- tine agents and those who develop intelligence devices and techniques on which agents rely, even if they do not themselves provide the CIA directly with information about foreign governments. Noting that information about mind-altering drugs, like all research leading to development of investigative devices and technology, is rationally related to national security and threats there- to, the Agency worries that scientists may hesitate to undertake research for the Agency in the future, or that exposure of researchers' identities might expose them to foreign surveillance or interference. The Agency also argues that its responsibilities include analysis as well as collection of secret information, and that it should not, consistent with the demands of national security, be co`'- pelled to make public the names of those persons JL even those publications that it consults. Finally, the Agency insists that a standard weakening its power to withhold information in one area of its activities may cause persons associated with it in other areas to lose 's Brief for appellants at 24. a See reply brief for appellants at 5. Sb See generally brief for appellants at 25-28; reply brief for appellants at 3-9. 16 Approved For Release 2003/12/09 : CIA-RDP84-00933R000400130009-7 17 confidence in the Agency's promises and hence to break contact with it. C. The Statutory Context In assessing the arguments proffered by the CIA we must be mindful that the "unmistakable thrust" of the Robertson amendment to the FOIA "is to inaure that -basic policy decisions on governmental secrecy be made by the Legislative rather than the Executive branch," American Jewish Congress v. Kreps, supra, 574 F.2d at 628 & n.33; see Founding Church of Scientology v. Nat'l Security Agency, supra, 610 F.2d at 827-829, and that it is the responsibility of the courts under the FOIA "to insure that agencies do not impermissibly expand by unreviewed interpretations the `particular types of mat- ters' Congress has exempted from disclosure," Ray v. Turner, supra, 587 F.2d at 1221 (Wright, C.J., concur- ring). Taking seriously the responsibilities vested in us by the Congress, we are unable to agree with the CIA that Congress intended the term "intelligence sources" to refer so broadly. Although the legislative history is sparse, the mosaic of revelant statutory enactments re- flects Congress' sensitivity to the need for discrimination in identifying particular types of matters exempted from disclosure. This sensitivity can be seen, not only in the Freedom of Information Act,'" but also in the relation- ship between the National Security Act "t and the Central Intelligence Agency Act 38-a relationship that belies the suggestion that Congress intended the term "intelligence sources" to receive an elastic construction in order to s" 5 U.S.C. ? 552 (1976). 3T National Security Act of 1947, ch. 343, 61 STAT. 496 (1947) (codified in scattered sections of 5 & 50 U.S.C.). ""Central Intelligence Agency Act of 1949, ch. 227, ? 1, G3 STAT. 208 (1949) (codified at 50 U.S.C. ?? 403a-403j (1976). preserve vital secrets that would otherwise lack, pro tection. The principal purpose of Congress in enacting the National Security Act of 1947, in which Section 403(d) (3) appears, was to unify the armed forces under a single Secretary of Defense. As part of an overall effort "to provide for the establishment of integrated policies and procedures for the departments, agencies, and func- tions of the Government relating to national secur- ity[,]" "" the Act created the National Security ,'ncil and the Central Intelligence Agency. The statute , _4s in the CIA responsibility for correlating and evaluating in- telligence generated, not only through its own facilities, but also through those of other government agencies. It then states, without further elucidation or definition of terms, that "the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure[.]" fO National Security Act of 1947 ? 2, 50 U.S.C. ? 401 (1976). "National Security Act ? 102(d), 50 U.S.C. ?403(d) (1976), recites the powers and duties of the CIA as follows: For the purpose of coordinating the intelligence activi- ties of the several Government departments and agemies in the interest of national security, it shall be tho "ay of the Agency, under the direction of the Nationa cu- rity Council- (1) to advise the National Security Coui. 1 in matters concerning such intelligence activities .o. the Government departments and agencies as rela* t ; national security; (2) to make recommendations to the Natiox Se- curity Council for the coordination of such. i lli- gence activities of the departments and agencies of the Government as relate to the national seeur4:, (3) to correlate and evaluate intelligence relatigg to the national security, and provide for the ap,, priate dissemination of such intelligence within tlrs Approved For Release 2003/12/09 : CIA-RDP84-00933R000400130009-7 In the context, the, phrase "intelligence sources and methods" is ambiguous. It would support the CIA's con- struction that the identity of anyone providing informa- tion rationally related to national security is ipso facto cted o A nd th t f . &%.U k - e c .7 u o lying purpose o Sale- guarding national security gives equal plausibility to the inference that persons are intended to be regarded as protected intelligence sources only if nondisclosure of their identities would itself be justifiable on national security grounds-the construction probably most coin- patible with the position of appellees on this appeal. Against this background, the Central Intelligence Agency Act of 1949, and particularly Section 7 of that Act, 50 U.S.C. ? 403g (1976), assumes some significance. As it appears in the United States Code, Section 403g, "in order further to implement the [protection of intel- ligence sources] proviso of section 403(d) (3)," recites in greater detail specific kinds of information that are statutorily exempt from disclosure: "[T]he Agency shall Government using where appropriate existing agen- cies and facilities : Provided, That the Agency shall have no police, subpena, law-enforcement powers, or internal-security functions: Provided further, That the departments and other agencies of the Govern- ment shall continue to collect, evaluate, correlate, and disseminate departmental intelligence: And pro- vided further, That the Director of Central Intelli- gence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure; (4) to perform, for the benefit of the existing intelligence agencies, such additional services of common concern as the National Security Council determines can be more efficiently accomplished centrally ; (5) to perform such other functions and duties related to intelligence affecting the national security as the National Security Council may from time to time direct. be exempted from the provisions * * ? of any ; law[s] which require the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency[.]"41 We believe the specificity of Section 403g is important to this case for two reasons. First, it suggests that the par,lde of horribles feared by the CIA if its definition is not accepted would simply not occur. Section 403g pro- vides specific protection for most of the CIA activities and contractual relationships about which the Agency has expressed greatest concern. This conclusion is strength- ened by the fact that the Agency may always-though it has not chosen to do so in this case-invoke Exemption 1 to justify nondisclosure of any material it properly de- cides to classify in order to protect a specific interest in national security. Second, Section 403g evinces a con- gressional awareness that Section 403 (d) (3) as originally written is not and was not intended to be endlessly ex- pansive. Congress recognized that Section 403 (d) (3) would require construction and interpretation limiting executive discretion to withhold; otherwise it would have felt no need to "implement" the original proviso by listing the specific matters exempted from disclosure under Sec- tion 403g. As a result of congressional action the meaning of "intelligence sources" in Section 403 (d) (3) unambigu- ously encompasses all classes of persons and entities with- in the listing of Section 403g. In order to preserve, yet also to limit, the range of matters additionally protected, we must look, in the absence of clear legislative history, to the congressionally mandated and valid purposes of the Central Intelligence Agency, whose effective functioning Congress sought in Section 403(d) (3) to promote. 4150 U.S.C. ? 403g (1976). 20 Approved For Release 2003/12/09 : CIA-RDP84-00933R000400130009-7 In chartering the CIA Congress set out, not to protect secrecy as an end in itself, but to provide for effective collection and analysis of foreign intelligence pertinent to concerns of national security. Secrecy seems to have been a concern only insofar as it was pertinent to pro- tection of the national security. Analysis should there- fore focus on the practical necessity of secrecy. In order to avoid an overbroad discretionary standard, see Founul- ing Church of Scientology v. Nat'l Security Agency, supra, 610 F.2d at 829, yet at the same time to protect the underlying concerns of Congress, Section 403(d) (3) must be interpreted in functional terms: an "intelli- gence source" is a person or institution that provides, has provided, or has been engaged to provide the CIA with information of a kind the Agency needs to perform its intelligence function effectively, yet could not reasonably expect to obtain without guaranteeing the confidentiality of those who provide it. D. Issues on Remand Application of this standard will entail a number of complex determinations for which this case must be re- manded to the District Court. Conceptually distinct, yet implicating similar if not identical factual concerns, these include definition of the class or "kind" of information involved and assessment of the likelihood that disclosure would undermine CIA access to information of that kind. The inquiries requisite to these determinations will be heavily factual, and, as an opinion by Judge Wilkey re- cently emphasized, courts should accord "sub,tantial weight" to the factual allegations of the CIA in the area of national security. Halperin v. CIA, F.2d (D.C. Cir. No. 79-1849, decided July 11, 1980) (slip opinion at 7). Congress intended no less, but also no more. In amending the Freedom of Information At to re-', verse the Mink case and to provide for de novo review in the District Courts of agency decisions to classify in- formation under the national security exemption, Con- gress carefully considered the weight to which agency determinations were entitled. One proposal called for agency classifleations In the national security context to be subject only to minimal judicial scrutiny: courts would be limited to determining whether there was a "reasonable basis" for the agency decision to withhoP a document.42 Congress explicitly rejected this positio _ De novo review was provided in every case. 4 The bill reported by the Senate Judiciary Committee would have prescribed this standard. S. 2543, 93d Cong., 2d Sess. ? (b) (2), reprinted in Staffs of Senate Committee on the Judiciary and House Committee on Government Opera- tions, Freedom of Information Act and Amendments of 1974 (Pub. L. 93-502), Source Book: Legislative History, Texts, and Other Documents, at 282 (Committee Print 1975) (here- inafter cited as "Source Book"). " The "reasonable basis" language was deleted from the Senate bill pursuant to an amendment introduced by Senator Muskie. See 120 CoNG. REC. 17022-17032 (1974). Senator Ervin supported the Amendment with the following remarks : The [unamended] bill provides that a court cannot 41 verse an agency even though it finds it was wrong . classifying the document as being one affecting national security, unless it further finds that the agency was not only wrong, but also unreasonably wrong. Why not let the judge determine that question, because national security is information that affects national defense and our dealings with foreign countries? That is all it amounts to. If a judge does not have enough sense to make that kind of judgment, he ought not to be a judge * * *. 22 Approved For Release 2003/12/09 : CIA-RDP84-00933R000400130009-7 Congressional intent emerges clearly from the report of the Conference Committee to which the "substantial weight" standard can be traced'' The report recognized that "the Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects [sic] might occur as a result of public exposure of a particular classified record." Ac- cordingly, it was "expect[ed I that Federal courts, in making de novo determinations in section 652(b)(1) cases under the Freedom of Information law, will accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record."U But the Conference Committee reiterated its intention to authorize de novo judicial decisions. And it specified that "[t]he burden remains on the Government under this law." 46 As the Halperin case illustrates, the "substantial weight" formula is most likely to assist the Government in meeting its burden when answering questions about the future effects of document disclosure on national security. As the court stated, a predictive statement "will always be speculative to some extent[.]" Halperin v. CIA, supra, F.2d at , slip opinion at 10. In holding the Government to the burden of justification imposed on it by Congress, courts should not require the impossible. On the other hand, there are other inquiries in which the CIA must stand on essentially the same footing as any other litigant. For example, final resolution of FOIA " S. Rep. No. 93-1200, 93d Cong., 2d Sess. 9 (1974). The Conference Committee explicitly rejected a proposal by Presi- dent Ford to return to the "reasonable basis" standard of review. See letter from President Gerald R. Ford to Honor- able William S. Moorehead, August 20, 1974, reprinted in Source Book, supra note 42, at 380. 45 S. Rep. No. 93-1200, supra note 44, at 12. 44 Id. at 9. cases typically demands an application of law to fact. Once the facts are found, it may remain to be determined whether they fall within the exempting ambit of one or another statute. Construction of statutes is an area of special judicial competence. Agency interpretations should, not, in this context, receive any more "substantial weight" than their intrinsic merit commands. The Halperin case is again illustrative. One section of the court's opinion settled the narrow point of law that private attorneys who work under contract for the CIA in matters pertaining to necessarily clandestine activities constitute "personnel employed by the Agency" whose names are exempt from disclosure under Exemp- tion 3 and Section 403g. See id., F.2d at , slip opinion at 13-16. Before reaching this narrow legal con- clusion the court, in other parts of its opinion, accorded substantial weight to the Agency's assertion that dis- closure of the names of such attorneys would lead to exposure of intelligence sources. Id., F.2d at - slip opinion at 6-11. But the court indicated no reliance on the Agency in determining the legal issue. It would be inappropriate for a court to abdicate any part of its responsibility to decide whether a factual showing of the likely- consequences of disclosure should suffice to bring a particular document within the protec- tive intent of a pertinent statute. IV. EXEMPTION 6 Exemption 6 to the Freedom of Information Act au- thorizes withholding of "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy [. ]" " 47 5 U.S.C. ? 552(b) (6) (1976). The CIA invokes Exemp- tion 6 to protect the names of individual researchers. but makes no claim that the names of the institutions participat- ing in MKULTRA could be withheld on that basis. Exemption 24 Approved For Release 2003/12/09 :.CIA-RDP84-00933R000400130009-7 25 In order for an agency to justify nondisclosure under this provision, the Government must carry each of three burdens. First, the agency must establish that the re- quested file is in fact appropriately classified as "per- sonnel," "medical,' 'or "similar." Second, it must demon- strate that release of the information would violate sub- stantial privacy interests of the person or persons in- volved. Finally, but only if the first two burdens fire met, the statute prescribes a balancing test on which the agency must also prevail. In order to resist disclosure, the agency must show that the substantial interest in personal privacy is not outweighed by the public interest in disclosure. Dept of Air Force v. Rose, 425 U.S. 352, 373 (1976) ; Getman v. NLRB, 450 F.2d 670, G74-677 (D.C. Cir. 1971). Although finding that a list of names of individual researchers comprised "similar files" under Exemption 6, the District Court rejected the Government's claimed right to withhold by determining that the CIA had failed to satisfy the third requirement of nondisclosure!' The court noted that the Agency had not supplied informa- tion the court deemed essential to accurate assessment 6 is applicable only to individuals. Nat'l Parks and Conserva- tion Ass'n v. Kleppe, 547 F.2d 673, 685 n.44 (D.C. Cir. 1976) ; Robertson v. Dep't of Defense, 402 F.Supp. 1342, 1348 (D. D.C. 1975). 48 Any ambiguity in the court's opinion arises because the second and third inquiries are so intimately connected. Al- though the court's conclusion that the public interest in dis- closure outweighs the privacy interest in nondisclosure clearly assumes some weighing of the relevant privacy interest, it is unclear whether the District Court in this case decided the second issue-whether there was an invasion of personal privacy sufficiently deep and severe to qualify under any cir- cumstances as "clearly unwarranted." The court might merely have assumed the existence of such an interest arguendo and then found that interest to be overridden. See Sims v. CIA, supra note 18, 479 F.Supp. at 89. of the privacy interests involved." 'And without such information the Government could not prevail on the balancing test. After the District Court rendered its decision in this case Judge Robinson's opinion for this court in Board of Trade of City of Chicago v. Commodity Futures Trading Comm'n, F.;r4 , - (D.C. Cir. No. 78- 1089, decided May 13, 1980) (slip opinion at 6-16), has analyzed and clarified the features that a document must possess to meet the threshold, definitional requirements of a "similar" file under Exemption 6. Had Judge Ober- dorfer had the benefit of this opinion, he might well have concluded, as we do, that the CIA records requested in this case cannot be considered "personnel and medical files [or] similar files" eligible for withholding. Exemption 6 was intended by Congress to protect in- dividuals from public disclosure of "intimate details of their lives, whether the disclosure be of personnel files, medical files, or other similar files." Board of Trade of City of Chicago v. Commodity Futures Trading *' Although the District Court held that the CIA had not provided adequate factual support for its claim to invoke Exemption 6, it invited the CIA to communicate with indi- vidual researchers to elicit "additional information as to whether any researcher has any reasonable expectation that his or her participation would be anonymous, as to whether any researcher has any other privacy interests which might be compromised by disclosure of participation in the project or whether any researcher has any other objection or reason for objection to disclosure of his or her name." Id. Believing it possible that the CIA might somehow justify its Exemption 6 claim on the basis of facts developed from the suggested communications, the District Court deferred the effective date of its order to disclose for nearly two months to give the CIA time to elicit more facts and develop legal arguments based thereon. The CIA, however, chose not to communicate with the researchers. It merely repeated the legal theories urged earlier. 26 Approved For Release 2003/12/09 : CIA-RDP84-00933R000400130009-7 27 Conam'n, supra, F.2d at , slip opinion at 13, quoting Rural Housing Alliance v. U.S. Dep't of Agri- culture, 498 F.2d 73, 77 (D.C. Cir. 1974) ; sec Robles v. EPA, 484 F.2d 843, 845 (4th Cir. 1973). Although the opinion in Rural Housing stated that the exemption "is phrased broadly to protect individuals from a wide range of embarrassing disclosures," 498 F.2d at 77, the context makes clear the court's recognition that the dis- closures with which the statute is concerned are those involving matters of an intimate personal nature. Be- cause of its intimate personal nature, information re- garding "marital status, legitimacy of children, identity of fathers of children, medical condition, welfare pay- ments, alcoholic consumption, family fights; reputation, and so on" falls within the ambit of Exemption 6 Id, By contrast, as Judge Stobinaon stated to the Chieauo Board of Trade case, F.2d at , slip opinion at 14, the decisions of this court have established that in- formation connected with professional relationships does not qualify for the exemption. In Getman v. NLRB, supra, for example, we ordered disclosure of a list of names and addresses of persons eligible to vote in union representation elections, despite assertions that their privacy would be compromised.," Although holding explicitly only that release would not constitute a clearly unwarranted invasion of privacy, we G? In Getman we held that the law professors conducting an NLRB voting study were entitled to compel the NLRB to provide them with the names and addresses of employees eligible to vote in certain union elections. Because the avowed purpose of the professors was to telephone selected employees and ask them to submit to interviews, the court recognized that "disclosure does involve some invasion of privacy[.]" Getman v. NLRB, 450 F.2d 670, 675 (D.C. Cir. 1971). But we stressed that disclosure of the business connection between union and employee bared no intimately personal facts and left "any disclosure of information [that is] more personal * * *. wholly consensual and within the control of the employee." Id. strongly suggested that the requested lists of names and addresses failed to qualify as "similar files." "[ T j he real thrust of Exemption (6)," we wrote, "is to guard against unnecessary disclosure of files of such agencies. as the Veterans Administration or the Welfare Depart- ment or Selective Service or Bureau of Prisons * * *. The giving of names and addresses is a very much lower degree of disclosure[.]" 450 F.2d at 675. Board of Trade of City of Chicago v. Commodity Fu- tures Trading Comm'n, supra, provides more direct au- thority. That case arose from an investigation by the Commodity Futdres Trading Commission of the Board of Trade's contract to operate a commodity futures.mar- ket in Chicago.*' As part of its inquiry into the plywood fut ras oontraet the Corrtmll ion solicited em lt+ioisms and suggestions frcmn parots trading under the contract, at least some of whom responded with the understanding that their identities would be kept confidential. The Commission therefore asked the Board to respond to com- plaints and suggestions that it identified only as issuing from "trade sources." Arguing that it could not assess the criticisms and suggestions without knowing their sources, the Board refused to respond until the names in question were released. The Commission still declined to reveal the names of its informants, and an FOIA action ensued. In an opinion by Judge Robinson this court concluded that Exemption 6 did not apply to the chal- b' The Commodity Futures Trading Commission is an inde- pendent regulatory agency created by the Commodity Futurs Trading Act of 1974. Commodity Exchange Act, 42 STAT. 998 (1922), as amended by the Commodity Futures Trading Commission Act of 1974, Pub. L. No. 93-463, 88 STAT. 1389, 7 D.S.C. ? 1 et seq. (1976). To function lawfully as a futures contract market, a Board of Trade must meet certain stand- ards as well as comply with Commission quid lin s. e Commission periodically conducts investigations to determine whether all requirements are being satisfied. 28 Approved For Release 2003/12/09 : CIA-RDP84-00933R000400130009-7 29 lengecl records, due to their essentially business nature. There was present in the case a privacy interest, impli- cated "insofar as release of identifying details would expose the occupations of these sources, their relation- ship to the Board, and how they perceive the workings of the market enterprise from which they derive at least part of their livelihood." F.2d at , slip opinion at 15. "But," the court continued, "the fact re#nains that the withheld information associates these individuals with business of the Board, and not with any aspect of their personal lives. The interest in nondisclosure thus i rarms-led is not In continued privacy of parson it attere but in anonymity on purely commercial matters." Id. We adhere to the analysis of Exemption 6 developed in the Chicago Board of Trade case. Exemption 6 was developed to protect intimate details of personal and family life, not business judgments and relationships. Surely it was not intended to shield matters of such clear public concern as the names of those entering into con- tracts with. the federal government. To support its claim to invoke Exemption 6 the CIA relies principally on Dep't of Air Force v. Rose, supra, a case in which the Supreme Court ordered release of files summarizing disciplinary proceedings against cadets at the Air Force Academy but approved deletion of in- dividual names therein. In holding that records of dis- ciplinary proceedings triggered the "similar files" pro- vision of Exemption 6, the Court noted, among other factors, the possibility of "lifelong embarrassment" en- suing from disclosure. The CIA argues that the possi- bility of embarrassment to CIA researchers brings the records requested in the present case within the holding of Rose. We cannot agree. Although the threat of embarrassment was a signifi- cant factor in Rose, see 425 U.S. at 376-377, the Court was also at pains to note that the records of the panels, at the Air Force Academy involved judgments about matters that are intimate and personal in the. highest degrees-judgments of ethical propriety and individual. honor. There was no implication that "embarrassment" alone . would have sufficed to justify nondisclosure. Clearly Exemption 6 could not be invoked, under Rose, to protect the concerns of a contractor who would be embarrassed by disclosure of his responsibility for shoddy work. No more should it reach the names of those em- barrassed by the nature of contract work they have lortakea , Moreover, even it we were to reach the stage of weigh- ing the privacy interest in nondisclosure and ultimately that of balancing,63 we would be compelled to agree with the District Court that the CIA has failed to justify non- disclosure. Eschewing suggestions by the District Court: that it communicate with the individual researchers, the Agency has failed to particularize their objections to disclosure or to establish the likely consequences of dis- closure in individual cases. In the absence of a more de- tailed and conclusive factual showing, we could hardly find that the Agency had shown an invasion of personal privacy so deep -and severe as to count as "clearly un- warranted" when measured against the countervailing public interest in full disclosure. And in applying a statute whose language "instructs the court to tilt the balance in favor of disclosure," Getman v. NLRB, supra, 450 F.2d at 674, we have to accord substantial weight to the claims of possible public profit. These include 62 The fact that an embarrassing disclosure might have costly business consequences was implicitly held to be irrele- vent in Board of Trade of City of Chicago v. Commodity Futures Trading Comm'n, --G F.2d (D.C. Cir. No. 78-1089, decided May 13, 1980) (slip op. at 15-16). 03 See text following note 47 supra. 30 Approved For Release 2003/12/09 CIA-RDP84-00933R000400130009-7 1 possible increases in public knowledge of specific experi- mental projects and possible identification of additional victims of drug testing. V. CONCLUSION For the reasons stated herein, the judgment of the District Court must be vacated and the case remanded for further action not Inconsistent with this opinion. Vacated and remanded. MARKEY, Chief Judge, dissenting in part: I join Chief Judge Wright's typically lucid opinion for the court, dis- senting, with utmost respect, only from the conclusion that a remand in respect of Exemption 3 is either neces- sary or advisable. Three years is enough. Plaintiffs filed their request in August, 1977, After more than a year of delay, they filed suit in November, 1978. After a year of litigation, they prevailed in 1979. It is now September, 1980. The information sought is at least 14 years old. Absent some imperative, plaintiffs should not be forced to return for further litigation in the district court. I agree that courts, while shirking none of their statu- tory responsibilities under FOIA, should approach with sheathed swords when our nation's security is involved. The CIA is not the EPA or the FAA. Here, however, the Agency has specifically declined to refuse disclosure on_ national security grounds. Indeed, the Agency has declined and 'disdained the deference-in-depth shown it by the district court. It has elected to confront the courts with a broad interpretation of Exemption 3, declining the district court's grant of additional time to consider Exemption 1, to assert a con- tract theory, to contact the researchers, and to show facts indicating that its interpretation of "intelligence sources" as here applied is not so overbroad as to amount to un- trammeled agency discretion. Before us, the Agency presents policy questions more properly presented to the Congress. The resulting impression is one of noblesse oblige. It does the Agency no injustice to remark that one who appears to have brown down a gauntlet should not be surprised when it appears to have been picked up. The Agency's implicit invitation to supply a usable definition of "intelligence source," as that phrase is em- ployed in Section 403(d) (3), has been well met in Chief Judge Wright's opinion. 2 Approved For Release 2003/12/09 The clarity and applicability of that definition to the facts of record, coupled with the conduct of the Agency, prompt my view that remand is unnecessary and inadvisable. It is true that neither the Agency in 1977, nor the district court in 1978, had the present definition avail- able. Nonetheless, the differences between the definition here established and that employed by the Agency are not, in light of the record, such as to compel remand. The present definition is broader in some senses and narrower in others.' It is broader in substituting "pro- vides, has provided, or has been engaged to provide" for the Agency's "is engaged to provide, or in fact provides." It is narrower in eliminating "medium," and in sup- planting the broad terms "substantive information" and "having a rational relation to the nation's external na- tional security" with a more usable "information of a kind the Agency needs to perform its intelligence func- tion effectively." It is narrower also in adding the emi- nently appropriate requirement that the information be of a kind the CIA "could not reasonably expect to obtain For convenience, the definitions are juxtaposed: Present definition: "(A] n 'intelligence source' is a person or institu- tion that provides, has provided, or has been engaged to provide the CIA with information of a kind the Agency needs to perform its intelligence function effectively, yet could not reasonably expect to obtain without guaranteeing the confidentiality of those who provide it." The Agency's definition: "An 'intelligence source' generally is any individual, entity or medium that is engaged to provide, or in fact provides, the CIA with substantive informa- tion having a rational relation to the nation's ex- ternal national security." CIA-RDP84-00933R000400130009-7 3 without guaranteeing the confidentiality of those who provide it." The Agency's definition effectively reads "intelligence source" as "information source," requiring protection of all sources of all information "rationally related" to na- tional security? As the majority opinion makes clear, that sucits into secrecy's maw too many sources of too many kinds of information. That the Agency's defini- tion is unacceptable, however, is not alone sufficient basis for remand here. Application of the standard, that is, the majority's definition, does not in my view require determinations "conceptuall distinct" from those made b or foreclosed y y, by the Agency to, the district court. Further, I find the implicated factual concerns identical. Presumably, remand is thought necessary to allow the Agency to show that the 21 institutions and 185 re- searchers provided "information of a kind the Agency needs to perform its intelligence function effectively, yet could not reasonably expect to obtain without guarantee- ing the confidentiality of those who provide it." But, as the record shows, the Agency has already established the "kind" of information here involved (research data on behavior modifying drugs). It has established its claimed need for the information, that is, to counter use of such drugs by potential adversaries and to develop its own capacity for their use. Whatever may be said of the wisdom or morality of the MKULTRA program and its z We deal here only with Exemption 3, not with Exemption Considerations of national security may go beyond inquir- ies on whether a potential adversary may already have certain information, and may encompass inquiries on whether the adversary knows the Agency knows, whether the adversary may learn the Agency is interested in knowing, and, of course, whether the adversary may learn of the Agency's source or sources of that certain information. 4 Approved For Release 2003/12/09 : 41A-RDP84-00933R000400130009-7 operation, the Agency's need for the research data "to perform its intelligence function effectively" has not been challenged on this record. Hence, a remand is unneces- sary to prove that element of the standard. That leaves only the question of whether the informa- tion was of a kind the Agency "could not reasonably expect to obtain without guaranteeing the confidentiality of those who provide it." Yet proof of the answer to that question is precisely what the Agency has adamantly refused to seek or present, though the district court twice invited it to do so. The Agency effectively refused the district court's request for evidence of express or implied confidentiality promises by the Agency. It declined the district court's suggestion that it ask the researchers, in connection with Exemption. 6, whether they even ex- pected confidentiality. A remand to enable a party to do what it had specifically refused to do when initially before the district court, thereby allowing that party to force the conduct of piecemeal litigation, is in my view entirely inappropriate. Further, what there is in the record on the subject indicates that the Agency had good reason for not at- tempting to prove the information unobtainable without a guarantee of confidentiality. From all that appears, the information was obtained without that guarantee, express or implied. The Agency dealt primarily through a front organization. If the Agency had promised con- fidentiality, explicitly or implicitly, it could have so es- tablished in the court below. That it did not, even in response to the court's invitation, should be taken as evidence that it could not and cannot do so on remand' ' Similarly, reclassification of the names, reliance on Ex- emption 1, or similar post-appeal actions in avoidance of disclosure by the Agency, would create an impression of play- ing fast and loose with the judicial process. With three years to consider reclassification, and more than two years to con- Though the "substantial weight" standard was initially phrased in relation to classified records and those here, are declassified, it is not necessary to base a present refusal to remand on that ground. That the court in Halperin gave substantial weight to the Agency's asser- tion respecting the effect of disclosure of the names of attorneys under contract for the CIA might have rele- vance if we were considering a "factual showing" of the effect of disclosure here 4 The district court and this court have here been denied that showing, though the Agency has had more than ample opportunity to ma it and to rely on a "substantial weight" standard. If, the majority correctly says, it would be "inappropriate for a court to abdicate any part of its responsibility to decide" when presented with such a factual showing, even in the face of a substantial weight standard, it would appear even more inappropriate for an appellate court to remand when the district court was specifically and unequivocally denied that showing.6 eider reliance before the courts on Exemption 1, the Agency may be presumed to have no sound basis for those actions. A contrary view would make the Agency appear to have en- gaged in judicial gamesmanship, holding back some defenses while it tries out others through an appeal, a practice not re- quired to obtain a judicial pronouncement on the defensa asserted. The courts' treatment here of two defenses could have easily included a third. ' The Agency has not here asserted that the instituUoms or researchers were working under a contract with the Aggtn4 or were otherwise "employees" under 50 U.S.G. ?464 (1976). 6It is true that courts should not require the impossil-lr, and that predictions of what others might do if the nanuo here sought were disclosed are necessarily specututlve, L t the time for those considerations is in my view p& L 1ior'" over, nothing of record remotely hints that the Agency wD1140 able to do any more than repeat the bald assertions .already made, namely, that disclosure of these names will IMPO'k Approved For Release 2003/12109 : CIA-RDP84-00933R000400130409-7 i~. Approved For Release 2003/12 Hence I cannot join the conclusion that the district* court applied an improper legal standard to the Exemp- tion 3 defense. That defense rested on the Agency's definition of "intelligence sources." The district court, viewing that definition as overbroad (a proper legal standard), held the defense inadequate. We do the same, on the same ground. That we also "provide guidelines" will be helpful to the Agency, to others, and to the in- terests of judicial economy in future cases. Where, how- ever, as here, the Agency cannot meet, those guidelines, indeed, declined to even try meeting them when the district court (in different words) invited that effort, I would not remand. I would affirm the district court's judgment respecting Exemption S. willingness of others to work with the Agency. Whether the public today perceives the Agency as a pariah is not estab- lished on the record, but the disclosure of the names of insti- tutions and researchers who were under the impression that they were not working for the Agency cannot be assumed to impede a willingness of others to work for the Agency when asked to do so. Presumably, also, those employing the FOIA to obtain the names here sought do not intend to risk con- tinued viability of the statute by unnecessarily exposing those institutions ahd researchers to public ridicule solely on the ground that they were caught up without their knowledge in MKULTRA. Approved For Release 2003/12/09 : CIA-RDP84-00933R000400130009-7 Approved For Release 2003/12/09 : CIA-RDP84-00933R000400130009-7