FOIA Guide, 2004 Edition: Exemption 1

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Freedom of Information Act Guide, May 2004


Exemption 1

Beginning with President Harry S. Truman in 1951, (1) the uniform policy of the
executive branch concerning the protection of national security information
traditionally has been set by the President with the issuance of a new or revised
national security classification executive order. (2) Exemption 1 of the FOIA integrates
the national security protections provided by this executive order with the FOIA's
disclosure mandate by protecting from disclosure all national security information
concerning the national defense or foreign policy that has been properly classified in
accordance with the substantive and procedural requirements of the current such
order. (3) The executive order currently in effect is Executive Order 12,958, as
amended, which was signed by President George W. Bush on March 25, 2003. (4) This
amend-ed order replaced the original version of Executive Order 12,958, which was
issued in 1995 by President William J. Clinton. (5) The provisions of this amended
executive order are discussed below.

The issuance of each classification executive order, or the amendment of an
existing executive order, raises the question of the applicability of successive
executive orders to records that were in various stages of administrative or litigative
handling as of the current executive order's effective date. (6) The appropriate
executive order to apply, with its particular procedural and substantive standards,
depends upon when the responsible agency official takes the final classification
action on the record in question. (7)

Under the precedents established by the Court of Appeals for the District of
Columbia Circuit, the accepted rule is that a reviewing court will assess the
propriety of Exemption 1 withholdings under the executive order in effect when "the
agency's ultimate classification decision is actually made." (8) Only when "a reviewing
court contemplates remanding the case to the agency to correct a deficiency in its
classification determination is it necessary" to comply with a superseding executive
order. (9) It also is important to note that agencies may, as a matter of discretion, re-examine their classification decisions under a newly issued or amended executive
order in order to take into account "changed international and domestic
circumstances." (10) This type of re-examination allows federal agencies to apply
current executive branch national security policies in the protection of national
security information. (11) For example, agencies may find it particularly beneficial to re-examine some classification decisions under amended Executive Order 12,958, as it
provides additional protections for information related to weapons of mass
destruction and the threat of transnational terrorism through provisions that did not
exist in the original version of the order. (12)

Before examining the principles that courts apply in Exemption 1 cases, it is
useful to review briefly the early decisions construing this exemption, as well as its
legislative history. In 1973, the Supreme Court in EPA v. Mink (13) held that records
classified under proper procedures were exempt from disclosure per se, without any
further judicial review, thereby obviating the need for in camera review of
information withheld under this exemption. (14) Responding in large part to the thrust
of that decision, Congress amended the FOIA in 1974 to provide expressly for de
novo review by the courts and for in camera review of documents, including
classified documents, where appropriate. (15) In so doing, Congress sought to ensure
that agencies properly classify national security records and that reviewing courts
remain cognizant of their authority to verify the correctness of agency classification
determinations. (16)


Standard of Review

After Congress amended the FOIA in 1974, numerous litigants challenged the
sufficiency of agency affidavits in Exemption 1 cases, requesting in camera review by
the courts and hoping to obtain disclosure of challenged documents. Nevertheless,
courts initially upheld agency classification decisions in reliance upon agency
affidavits, as a matter of routine, in the absence of evidence of bad faith on the part
of an agency. (17) In 1978, however, the Court of Appeals for the District of Columbia
Circuit departed somewhat from such routine reliance on agency affidavits,
prescribing in camera review to facilitate full de novo adjudication of Exemption 1
issues, even when there is no showing of bad faith on the part of the agency. (18) This
decision nevertheless recognized that the courts should "first 'accord substantial
weight to an agency's affidavit concerning the details of the classified status of the
disputed record.'" (19)

The D.C. Circuit further refined the appropriate standard for judicial review of
national security claims under Exemption 1 (or under Exemption 3, in conjunction
with certain national security protection statutes), finding that summary judgment is
entirely proper if an agency's affidavits are reasonably specific and there is no
evidence of bad faith. (20) Rather than conduct a detailed inquiry, the court deferred to
the expert opinion of the agency, noting that judges "lack the expertise necessary to
second-guess such agency opinions in the typical national security FOIA case." (21)
This review standard has been reaffirmed by the D.C. Circuit on a number of
occasions, (22) and it has been adopted by other circuit courts as well. (23) Of course,
where agency affidavits have been found to be insufficiently detailed, courts have
withheld summary judgment in Exemption 1 cases on procedural grounds. (24)

If an agency affidavit passes muster under this standard, though, in camera
review may be inappropriate because substantial weight must be accorded that
affidavit. (25) In a 1996 decision, the D.C. Circuit stated that in a national security case,
a district court exercises "wise discretion" when it limits the number of documents it
reviews in camera. (26) In upholding the district court's decision not to review certain
documents in camera, the D.C. Circuit opined that limiting the number of documents
examined by a court "makes it less likely that sensitive information will be disclosed"
and, if there is an unauthorized disclosure of classified information, "makes it easier
to pinpoint the source of the leak." (27)

In another case, the Court of Appeals for the Seventh Circuit analyzed the
legislative history of the 1974 FOIA amendments and went so far as to conclude that
"Congress did not intend that the courts would make a true de novo review of
classified documents, that is, a fresh determination of the legitimacy of each
classified document." (28) It also is noteworthy that the only Exemption 1 FOIA
decision to find agency "bad faith," (29) one in which an appellate court initially held
that certain CIA procedural shortcomings amounted to "bad faith," was
subsequently vacated on panel rehearing. (30)


Deference to Agency Expertise

While the standard of judicial review often is expressed in different ways,
courts generally have heavily deferred to agency expertise in national security
cases. (31) Such deference is based upon the "magnitude of the national security
interests and potential risks at stake," (32) and it is extended by courts because
national security officials are uniquely positioned to view "the whole picture" and
"weigh the variety of subtle and complex factors" in order to determine whether the
disclosure of information would damage the national security. (33) Indeed, courts
ordinarily are very reluctant to substitute their judgment in place of the agency's
"unique insights" (34) in the areas of national defense and foreign relations. (35) This is
because courts have recognized that national security is a "uniquely executive
purview" (36) and that "the judiciary is in an extremely poor position to second-guess
the executive's judgment" on national security issues. (37) The tragic events of
September 11, 2001, and their aftermath, have served to make courts more aware of
the need for deference when considering issues related to national security, with
one court observing that "America faces an enemy just as real as its former Cold War
foes, with capabilities beyond the capacity of the judiciary to explore." (38)

Courts have demonstrated this deference to agency expertise also by
according little or no weight to opinions of persons other than the agency
classification authority when reviewing the propriety of agency classification
determinations. (39) Persons whose opinions have been rejected by the courts in this
context include a former ambassador who had personally prepared some of the
records at issue, (40) a retired admiral, (41) a former CIA agent, (42) and a retired CIA staff
historian. (43) And in a further example of deference to agency expertise, a court
considering the sensitivity of CIA budget information not long ago concluded that it
"must defer to . . . [the agency's] decision that release . . . amidst the information
already publicly-available, provides too much trend information and too great a
basis for comparison and analysis for our adversaries." (44)

Nevertheless, while judicial deference to agency expertise is the norm in
Exemption 1 litigation, in some cases courts have rejected an agency's classification
decision. (45) The most recent example of this occurred in Weatherhead v. United
States
, (46) a case decided under the original version of Executive Order 12,958 in which
a district court initially ordered the disclosure of a letter sent by the British Home
Office to the Department of Justice, which was not classified until after receipt of the
FOIA request. (47) On a motion for reconsideration, the district court rejected the
government's arguments that the court had failed to give the agency's determination
of harm sufficient deference. (48) The court "reluctantly" agreed to review the letter in
camera because "of the danger that highly sensitive . . . material might be released
only because [the agency was] unable to articulate a factual basis for their concerns
without giving away the information itself." (49) When this proved to be the case upon
the court's in camera review of the document, the court granted the motion for
reconsideration and upheld the letter's classification. (50)

On appeal, however, the Court of Appeals for the Ninth Circuit, in a two-to-one decision, flatly refused to defer to the State Department's judgment of foreign
relations harm and ordered the letter disclosed. (51) The Solicitor General then
petitioned the Supreme Court to grant certiorari review of the Ninth Circuit's ruling,
which it did, and the case was scheduled for Supreme Court argument. (52) During the
briefing of the case, however, the requester suddenly revealed that he was in
possession of a subsequent letter from a local British Consul that addressed the
same subject. (53) In response to this revelation, the State Department brought this
new information to the attention of the British Government, which then decided to
no longer insist on confidentiality for the letter. (54) Accordingly, and on an expedited
basis, the letter was declassified and disclosed to the requester. (55) The Solicitor
General then successfully moved to have the Supreme Court nullify the Ninth
Circuit's adverse precedent on the ground that it no longer could be appealed. (56)


In Camera Submissions and an Adequate Public Record

There are numerous instances in which courts have permitted agencies to
submit explanatory in camera affidavits in order to protect certain national security
information that could not be discussed in a public affidavit. (57) It is entirely clear,
though, that agencies taking such a special step are under a duty to "create as
complete a public record as is possible" before doing so. (58) This public record
provides a meaningful and fair opportunity for a plaintiff to challenge, and an
adequate evidentiary basis for a court to rule on, an agency's invocation of
Exemption 1. (59)

In this regard, it is reasonably well settled that counsel for plaintiffs are not
entitled to participate in such in camera proceedings. (60) Several years ago, though,
one court took the unprecedented step of appointing a special master to review and
categorize a large volume of classified records. (61) In other instances involving
voluminous records, courts have on occasion ordered agencies to submit samples of
the documents at issue for in camera review. (62)

In a decision that highlights some of the difficulties of Exemption 1 litigation
practice, the Court of Appeals for the Fourth Circuit issued a writ of mandamus that
required court personnel who would have access to classified materials submitted
in camera in an Exemption 1 case to obtain security clearances prior to the
submission of any such materials to the court. (63) On remand, the district court judge
reviewed the disputed documents entirely on his own. (64) Consistent with the special
precautions taken by courts in Exemption 1 cases, the government also has been
ordered to provide a court reporter with the requisite security clearances to
transcribe in camera proceedings, in order "to establish a complete record for
meaningful appellate review." (65)

In other cases, courts have compelled agencies to submit in camera affidavits
when disclosure in a public affidavit would vitiate the very protection afforded by
Exemption 1. (66) Affidavits -- whether public, in camera, or a combination of the two --
have been employed when even the confirmation or denial of the existence of
records at issue would pose a threat to national security, which is the so-called
"Glomar" situation. (67) (For a further discussion of in camera review, see Litigation Considerations, In
Camera Inspection, below.)


"Public Domain" Information

Several courts have had occasion to consider whether agencies have a duty to
disclose classified information that purportedly has found its way into the public
domain. (68) In this regard, courts have held that, in asserting a claim of prior public
disclosure, a FOIA plaintiff bears "the initial burden of pointing to specific
information in the public domain that appears to duplicate that being withheld." (69) Accordingly, Exemption 1 claims should not be undermined by generalized
allegations that classified information has been leaked to the press or otherwise
made available to members of the public. (70) Courts have carefully distinguished
between a bona fide declassification action or official release on the one hand and
unsubstantiated speculation lacking official confirmation on the other, refusing to
consider classified information to be in the public domain unless it has been officially disclosed. (71)
Indeed, this judicial axiom comports with the amended Executive Order 12,958,
which allows agencies to classify or reclassify information following an access
request if it "has not previously been disclosed to the public under proper
authority." (72) (For a discussion of the requirements for such belated classification, see
Exemption 1, Executive Order 12,958, as Amended, below.)

A recurring issue in the waiver arena is whether public statements by former
government officials constitute such an "official disclosure," and thus prevent an
agency from invoking Exemption 1 to withhold information that it determines still
warrants national security protection. In this regard, the Court of Appeals for the
Second Circuit has rejected the argument that a retired admiral's statements
constituted an authoritative disclosure by the government. (73) It pointedly stated:
"Officials no longer serving with an executive branch department cannot continue to
disclose official agency policy, and certainly they cannot establish what is agency
policy through speculation, no matter how reasonable it may appear to be." (74)
Additionally, the Second Circuit affirmed the decision of the district court in holding
that the congressional testimony of high-ranking Navy officials did not constitute
official disclosure because it did not concern the specific information being sought. (75)

Similarly, courts have rejected the view that widespread reports in the media
about the general subject matter involved are sufficient to overcome an agency's
Exemption 1 claim for related records. Indeed, in one case, the court went so far as
to hold that 180,000 pages of CIA records concerning Guatemala were properly
classified despite the fact that the public domain contained significant information
and speculation about CIA involvement in the 1954 coup in Guatemala: "CIA
clearance of books and articles, books written by former CIA officials, and general
discussions in [c]ongressional publications do not constitute official disclosures." (76) In
a subsequent case, one court went even further, holding that documents were
properly withheld under Exemption 1 even though they previously had been
disclosed "involuntarily as a result of [a] tragic accident such as an aborted rescue
mission [in Iran], or used in evidence to prosecute espionage." (77)

In a 1990 decision, the Court of Appeals for the District of Columbia Circuit
held that for information to be "officially acknowledged" in the context of Exemption
1, it must: (1) be as "specific" as the information previously released; (2) "match" the
information previously disclosed; and (3) have been made public through an "official
and documented" disclosure. (78) Applying these criteria, the D.C. Circuit reversed the
lower court's disclosure order and held that information published in a congressional
report did not constitute "official acknowledgment" of the purported location of a
CIA station, because the information sought related to an earlier time period than
that discussed in the report. (79) In so ruling, it did not address the broader question of
whether congressional release of the identical information relating to intelligence
sources and methods could ever constitute "official acknowledgment," thus requiring
disclosure under the FOIA. (80) However, the D.C. Circuit had previously considered
this broader question and had concluded that congressional publications do not
constitute "official acknowledgment" for purposes of the FOIA. (81)

In 1993, the D.C. Circuit had an opportunity to consider the issue of whether an
agency had "waived" its ability to properly withhold records pursuant to Exemption
1. The case involved the question of whether the public congressional testimony of
the U.S. Ambassador to Iraq constituted such a "waiver" so as to prevent the agency
from invoking the FOIA's national security exemption to withhold related records. (82)
The district court had held -- after reviewing the seven documents at issue in camera
-- that the public testimony had not "waived" Exemption 1 protection because the
"context" of the information in the documents was sufficiently "different" so as to not
"negate" their "confidentiality." (83) Terming this an "unusual FOIA case" because the
requester did not challenge the district court's conclusion that the documents were
properly exempt from disclosure under Exemption 1 and because the requester also
conceded that it could not meet the strict test for "waiver," the D.C. Circuit rejected
the requester's primary argument that the facts of this case distinguished it from the
court's prior decisions on this question. (84)

The requester contended first that the court's prior decisions concerned
attempts by FOIA requesters to compel agencies to confirm or deny the truth of
information that others had already publicly disclosed. (85) The plaintiff then argued
that the Ambassador's public statements about her meeting with the Iraqi leader
prior to the invasion of Kuwait were far more detailed than those that the D.C.
Circuit had found did not constitute "waiver" in previous cases. (86) The D.C. Circuit
repudiated both of the requester's points and, in affirming the district court's
decision, grounded its own decision in the fact that the requester "conceded" it
could not "meet [the] requirement that it show that [the Ambassador's] testimony
was 'as specific as' the documents it [sought] in this case, or that her testimony
'matche[d]' the information contained in the documents." (87) Acknowledging that such
a stringent standard is a "high hurdle for a FOIA plaintiff to clear," the D.C. Circuit
concluded that the government's "vital interest in information relating to the national
security and foreign affairs dictates that it must be." (88) To hold otherwise in a
situation where the government had affirmatively disclosed some information about
a classified matter would, in the court's view, give the agency "a strong disincentive
ever to provide the citizenry with briefings of any kind on sensitive topics." (89)

In a case decided nearly a decade later, the D.C. Circuit once again visited the
issue of claimed public disclosure of classified information. In Public Citizen v.
Department of State
, (90) it considered whether an Exemption 1 claim was defeated
because the requested documents were, prior to their classification, publicly
accessible upon request at the National Archives and Records Administration. (91) The
district court earlier had rejected the plaintiff's waiver argument because the
documents, while accessible, were not maintained in a public access area and were
not likely to have been accessed by a researcher. (92) The district court had explained
that such a "remote possibility of very limited disclosure" was not the type of
"widespread" official dissemination capable of defeating an Exemption 1 claim. (93)
Agreeing with this, the D.C. Circuit began its discussion of the issue by observing
that, as an initial matter, the party claiming prior disclosure must point to "'specific
information in the public domain that appears to duplicate that being withheld,'" (94)
lest the defendant agency unrealistically bear "the task of proving the negative." (95)
The D.C. Circuit concluded that the plaintiff had failed to meet this burden, and it
dismissed the public disclosure claim as nothing more than "speculation." (96) (For a
further discussion of this issue, see Discretionary Disclosure and Waiver, below.)

A final, seemingly obvious point -- but one nevertheless not accepted by all
FOIA requesters -- is that classified information will not be released under the FOIA
even to a requester of "unquestioned loyalty." (97) In a case decided in 1990, a
government employee with a current "Top Secret" security clearance was denied
access to classified records concerning himself because Exemption 1 protects
"information from disclosure based on the nature of the material, not on the nature of
the individual requester." (98)


Executive Order 12,958, as Amended

As is mentioned above, Executive Order 12,958, which was amended on March
25, 2003, (99) sets forth the standards governing national security classification and the
mechanisms for declassification. (100) As with prior executive orders, the amended
Executive Order 12,958 recognizes both the right of the public to be informed about
activities of its government and the need to protect national security information
from unauthorized or untimely disclosure. (101) Accordingly, information may not be
classified unless "the unauthorized disclosure of the information reasonably could be
expected to result in damage to the national security, which includes defense
against transnational terrorism." (102) Courts grappling with the degree of certainty
necessary to demonstrate the contemplated damage under this standard have
recognized that an agency's articulation of the threatened harm must always be
speculative to some extent and that to require a showing of actual harm would be
judicial "overstepping." (103) In the area of intelligence sources and methods, for
example, courts are strongly inclined to accept the agency's position that disclosure
of this type of information will cause damage to national security interests because
this is "necessarily a region for forecasts in which [the agency's] informed judgment
as to potential future harm should be respected." (104)

This standard is elaborated upon in section 1.4 of the amended order, which
specifies the types of information that may be considered for classification. The
information categories identified as proper bases for classification in the amended
Executive Order 12,958 consist of: foreign government information; (105) vulnerabilities
or capabilities of systems, installations, proj-ects, or plans relating to national
security; (106) intelligence activities, sources or methods, (107) or cryptology; (108) foreign
relations or foreign activities, including confidential sources; (109) military plans,
weapons, or operations; (110) scientific, technological, or economic matters relating to
national security; (111) and government programs for safeguarding nuclear materials
and facilities. (112) The amendment of Executive Order 12,958 added a new
classification category protecting information concerning "weapons of mass
destruction," (113) and it further expanded two previously existing categories to include
information regarding "defense against transnational terrorism." (114)

Under the original version of Executive Order 12,958, there was no
presumption that disclosure of information in any of the above categories could
harm national security; hence, there was no presumption that such information is
classified. (115) However, Executive Order 12,958, as amended, established a
presumption of harm to national security from the release of information provided
by or related to foreign governments. (116)

The addition of this presumption of harm may help to resolve a conflict
between two decisions in the District Court for the District of Columbia, in which two
judges took opposing views as to what agencies must demonstrate to protect
national security-related information exchanged with foreign governments. (117) In the
first case, in which the agency's Vaughn Index contained no indication of an explicit
promise of confidentiality between the agency and the foreign government, the
court ordered the FBI to "disclose the circumstances from which it deduces, and
from which the court might as well, that the information was shared in
confidence." (118) Using the relatively stringent standard for the protection of foreign
government information that is applied to the protection of confidential informants in
the law enforcement context, (119) the court required the government to fully explain
the circumstances from which confidentiality is inferred. (120) It imposed this burden
despite the fact that this case was decided under Executive Order 12,356, which, like
the amended Executive Order 12,958, instructed agencies to presume harm to the
national security in releasing foreign government information. (121) The court
subsequently granted the FBI's motion for summary judgment based upon the
agency's supplemental affidavit -- which demonstrated that the FBI's relationship
with the foreign government was based on an express understanding of
confidentiality. (122)

In the second case, the court specifically rejected the requester's argument
that, in order to qualify for Exemption 1 protection, the agency's affidavit must
demonstrate that there were explicit understandings of confidentiality between the
agency and the foreign government regarding the information at issue. (123) In the
court's view, "to compel the agency to supply more information would muddle the
purpose of the exemption." (124) The court found no similarity between the protection
of foreign government information for national security reasons and the protection of
confidential informants in the law enforcement context. (125) It ruled that the
government was not required to provide evidence of either an explicit or implicit
confidentiality understanding with the foreign government, despite the fact that the
information was classified under the original version of Executive Order 12,958,
which did not permit agencies to presume harm to national security from the release
of foreign government information. (126)

With the addition of a presumption of harm in the amended Executive Order
12,958, it now can be anticipated that future such decisions will adopt the latter
court's view for the protection of foreign government information. This latter view
also corresponds more closely to the deferential approach that courts ordinarily take
when reviewing cases involving Exemption 1. (For further discussions of the
appropriate judicial standard in evaluating Exemption 1 claims, see Exemption 1,
Standard of Review, above, and Exemption 1, Deference to Agency Expertise,
above.)

As with prior orders, amended Executive Order 12,958 contains a number of
distinct limitations on classification. (127) Specifically, information may not be classified
in order to conceal violations of law, inefficiency, or administrative error, (128) to prevent
embarrassment to a person, organization, or agency, (129) to restrain competition, (130) to
prevent or delay the disclosure of information that does not require national security
protection, (131) or to classify basic scientific research not clearly related to the national
security. (132) Additionally, the amendment of Executive Order 12,958 removed the
requirement in the original version of the order that agencies not classify information
if there is "significant doubt" about the national security harm. (133)

Following the amendment of Executive Order 12,958, and subject to strict
conditions, agencies may reclassify information after it has been declassified and
released to the public. (134) The action must be taken under the "personal authority of
the agency head or deputy agency head," who must determine in writing that the
reclassification is necessary to protect national security. (135) Further, the information
previously declassified and released must be "reasonably recovered" by the agency
from all public holders, and it must be withdrawn from public access in archives and
reading rooms. (136) Finally, the agency head or deputy agency head must report any
agency reclassification action to the Director of the Information Security Oversight
Office within thirty days, along with a description of the agency's recovery efforts,
the number of public holders of the information, and the agency's efforts to brief any
such public holders. (137) Similarly, the amended Executive Order 12,958 also authorizes
the classification of a record after an agency has received a FOIA request for it,
although such belated classification is permitted only through the "personal
participation" of designated high-level officials and only on a "document-by-document basis." (138) (For a further discussion of official disclosure, see Exemption 1,
"Public Domain" Information, above.)

Executive Order 12,958, as amended, also contains a provision establishing a
mechanism through which classification determinations can be challenged within
the federal government. (139) Under this provision, "authorized holders of information" -- individuals who are authorized to have access to such information -- who, in good
faith, believe that its classification is improper are "encouraged and expected" to
challenge that classification. (140) Furthermore, agencies are required to set up internal
procedures to implement this program, in order to ensure that holders are able to
make such challenges without fear of retribution and that the information in question
is reviewed by an impartial official or panel. (141) Additionally, an agency head or
designee may authorize an "emergency" disclosure of information to individuals who
are not eligible for access to classified information, as may be necessary under
exceptional circumstances "to respond to an imminent threat to life or in defense of
the homeland." (142)

In addition to satisfying the substantive criteria outlined in the appli-cable
executive order, information also must adhere to the order's procedural
requirements to qualify for Exemption 1 protection. (143) Executive Order 12,958, as
amended, prescribes the current procedural requirements that agencies must
employ. (144) These requirements include such matters as the proper markings to be
applied to classified documents, (145) as well as the manner in which agencies
designate officials to classify information in the first instance. (146)

Regarding proper national security markings, Executive Order 12,958, as
amended, requires that each classified document be marked with the appropriate
classification level, (147) the identity of the original classification authority, (148) the identity
of the agency and office classifying the document, (149) as well as with "a concise
reason for classification" that cites the applicable classification category or
categories. (150) It also requires that a date or event for declassification be specified on
the document. (151) In addition, amended Executive Order 12,958 requires agencies to
use portion markings to indicate levels of classification within documents, (152) and it
advocates the use of classified addenda in cases in which classified information
comprises only "a small portion of an otherwise unclassified document." (153) The
Information Security Oversight Office (ISOO) has issued governmentwide guidelines
on these marking requirements. (154)

Executive Order 12,958 also establishes a government entity to provide
oversight of agencies' classification determinations and their implementation of the
order. The Interagency Security Classification Appeals Panel consists of senior-level
representatives of the Secretaries of State and Defense, the Attorney General, the
Director of Central Intelligence, the Archivist of the United States, and the Assistant
to the President for National Security Affairs. (155) Among other things, this body
adjudicates classification challenges filed by agency employees and decides
appeals from persons who have filed requests under the mandatory declassification
review pro-visions of the order. (156)

Agencies with questions about the proper implementation of the substantive
or procedural requirements of Executive Order 12,958, as amended, may consult with
the Information Security Oversight Office, located within the National Archives and
Records Administration, at (202) 219-5250, which holds governmentwide oversight
responsibility for classification matters under the executive order. (157)


Duration of Classification and Declassification

Other important provisions of amended Executive Order 12,958 are those that
establish (1) limitations on the length of time information may remain classified, (158)
and (2) procedures for the declassification of older government information. (159) The
order requires agencies to "attempt to establish a specific date or event for
declassification based upon the duration of the national security sensitivity." (160) The
order also limits the duration of classification to no longer than is necessary in order
to protect national security. (161) If the agency is unable to determine a date or event
that will trigger declassification, however, then amended Executive Order 12,958
instructs the original classification authority to set a ten-year limit on new
classification actions. (162) The classification authority alternatively may determine that
the sensitivity of the information justifies classification for a period of twenty-five
years. (163)

The amendment of Executive Order 12,958 continues the automatic
declassification mechanism that was established by the original version of the order
in 1995. (164) It requires the automatic declassification of information that is more than
twenty-five years old, (165) with exceptions limited to especially sensitive information
designated as such by the heads of agencies. (166) This declassification mechanism did
not exist under previous orders, and its implementation has taken longer than was
originally anticipated. (167)

The original effective date for the automatic declassification mechanism
under the original version of Executive Order 12,958 was October 17, 2001. (168) For
certain identified records, however, the effective date for automatic declassification
was extended to April 17, 2003 by Executive Order 13,142. (169) The amended Executive
Order 12,958 further extends the deadline for automatic declassification to
December 31, 2006, in order to allow government agencies additional time to
properly review millions of pages of classified materials. (170) The amended Executive
Order provides that on that date, all classified records that are more than twenty-five years old, and have been determined to have permanent historical value, are to
be automatically declassified even if those records have not yet been reviewed for
declassification. (171) In addressing automatic declassification, courts have refused to
order disclosure of information more than twenty-five years old until the automatic
disclosure provisions take effect. (172)

The automatic declassification mechanism applies to information currently
classified under any predecessor executive order (173) and will lead to creation of a
governmentwide declassification database. (174) For records that fall within any
exception to amended Executive Order 12,958's automatic declassification
mechanism, agencies are required to establish "a program for systematic
declassification review" that focuses on any need for continued classification of such
records. (175)

As did prior executive orders, amended Executive Order 12,958 provides for a
"mandatory declassification review" program. (176) This mechanism allows any person -- entirely apart from the FOIA context -- to request that an agency review its national
security records for declassification. (177) Traditionally, the mandatory review program
has been used by researchers interested in gaining access to papers maintained by
presidential libraries, which are not accessible under the FOIA; under this provision,
however, any person may submit a mandatory review request to an agency. (178)
Unlike under the FOIA, though, such requesters do not have the right to judicial
review of the agency's action. (179) Instead, amended Executive Order 12,958
authorizes persons to appeal an agency's final decision under this program to the
Interagency Security Classification Appeals Panel. (180) To alleviate some of the
burden of this program, Executive Order 12,958 contains a provision that allows an
agency to deny a mandatory review request if it has already reviewed the
information for declassification within the past two years. (181)

For declassification decisions, amended Executive Order 12,958 authorizes
agencies to apply a balancing test -- i.e., to determine "whether the public interest in
disclosure outweighs the damage to national security that might reasonably be
expected from disclosure." (182) Though Executive Order 12,958, as amended, specifies
that this provision is implemented solely as a matter of administrative discretion and
creates no new right of judicial review, it is significant that no such provision existed
under prior orders. (183) Courts have held that national security officials are responsible
for applying this balancing test at the time of the original classification decision, and
that these officials logically are in the best position to weigh the public interest in
disclosure against the threat to national security. (184)


Additional Considerations

Two additional considerations addressed initially by the original version of
Executive Order 12,958, and then continued in the amended version, have already
been recognized by the courts. First, the "Glomar" response is explicitly
incorporated into the order: "An agency may refuse to confirm or deny the existence
or nonexistence of requested records whenever the very fact of their existence or
nonexistence is itself classified under this order." (185) (For a further discussion of this
point, see Exemption 1, In Camera Submissions, above.)

Second, the "mosaic" or "compilation" approach -- the concept that apparently
harmless pieces of information, when assembled together, could reveal a damaging
picture -- is recognized in amended Executive Order 12,958. (186) Compilations of
otherwise unclassified information may be classified if the "compiled information
reveals an additional association or relationship that: (1) meets the [order's
classification] standards, and (2) is not otherwise revealed in the individual items of
information." (187) This "mosaic" approach was presaged by a decision of the Court of
Appeals for the District of Columbia Circuit in 1980 (188) and has been endorsed by
other courts. (189) The D.C. Circuit has also reaffirmed that even if there is other
information that if released "would pose a greater threat to the national security,"
Exemption 1 "'bars the government from prying loose even the smallest bit of
information that is properly classified.'" (190)

Another aspect of invoking Exemption 1 is the FOIA's general requirement
that agencies segregate and release nonexempt information, unless the segregated
information would have no meaning. (191) The duty to release information that is
"reasonably segregable" (192) applies in cases involving classified information as well as
those involving nonclassified information. (193) In recent years, the D.C. Circuit has
reemphasized the FOIA's segregation requirement in a series of decisions, (194) two of
which involved records with-held pursuant to Exemption 1. (195) In the first of these
two decisions, the D.C. Circuit, although upholding the district court's substantive
determination that the records contained information qualifying for Exemption 1
protection, nonetheless remanded the case to the district court because it had failed
to "make specific findings of segregability for each of the withheld documents." (196) In
the second decision, the D.C. Circuit observed that although the agency might have
been "aware of its duties under FOIA to disclose all nonsegregable information," it
did not provide the court with an "adequate explanation" on which to base such a
finding. (197) Accordingly, the D.C. Circuit also remanded the case to the district court
for a more detailed description of the information withheld. (198) (For a further
discussion of this point, see Litigation Considerations, "Reasonably Segregable
Requirements," below.)

Additionally, agencies should also be aware of the FOIA's "(c)(3) exclusion." (199)
This special records exclusion applies to certain especially sensitive records
maintained by the Federal Bureau of Investigation, which concern foreign
intelligence, counterintelligence or international terrorism matters: Where the
existence of such records is itself a classified fact, the FBI may, so long as the
existence of the records remains classified, treat the records as not subject to the
requirements of the FOIA. (200) (See the discussion of this provision under Exclusions,
below.)


Homeland Security-Related Information

Due to the horrific events of September 11, 2001, and their aftermath
throughout the world, no discussion of national security would be complete without
emphasizing the efforts of the federal government to protect sensitive national
security information, particularly regarding matters of critical infrastructure,
weapons of mass destruction, and the general threat of terrorism. In response to
the attacks of September 11, 2001, the federal government has undergone its largest
and most wide-ranging reorganization in more than fifty years. (201) This
reorganization -- and the creation of the Department of Homeland Security, under
the Homeland Security Act of 2002, (202) in addition to the Homeland Security Council
within the White House (203) -- centralized the federal government's domestic national
security efforts in order to protect Americans from the ever-increasing threat of
terrorism. These changes have greatly impacted many aspects of the operation of
the federal government, including the administration of the FOIA. (204) Much greater
emphasis is now placed on the protection of information that could expose the
nation's critical infrastructure, military, government, and citizenry to an increased risk
of attack. (205) As a result of these changes, federal departments and agencies should
carefully consider the sensitivity of any information the disclosure of which could
reasonably be expected to cause national security harm. (206)

On March 19, 2002, the White House Chief of Staff issued a directive to the
heads of all federal departments and agencies addressing the need to safeguard
and wherever appropriate protect such information. (207) This directive is implemented
by an accompanying memorandum from the Acting Director of the Information
Security Oversight Office and the Co-Directors of the Department of Justice's Office
of Information and Privacy. (208) The implementing guidance contains two points that
are especially relevant to amended Executive Order 12,958, though it was issued
prior to the most recent amendment.

The first of these points concerns sensitive homeland security-related
information that is currently classified; the classified status of such information
should be maintained in accordance with applicable provisions of the amended
Executive Order 12,958. (209) This includes extending the duration of classification as
well as exempting such information from automatic declassification as
appropriate. (210) The second point concerns previously unclassified or declassified
information, (211) which may be classified or reclassified, as appropriate, pursuant to
the amended executive order. (212) In this regard, if the information has been the
subject of a previous access demand, such as a FOIA request, any such classification
or reclassification is subject to the special requirements of section 1.7(d) of amended
Executive Order 12,958. (213)

As a final note, agencies should be aware that although various government
agencies today might use newly created terms to refer to categories of homeland
security-related information -- such as "Sensitive Homeland Security Information"
(commonly referred to as "SHSI"), (214) "Sensitive But Unclassified Information"
(sometimes referred to as "SBU information"), (215) or "Critical Infrastructure
Information" (commonly referred to as "CII") (216) -- these categorical labels do not
indicate classification pursuant to Executive Order 12,958. (217) Terms such as "SHSI"
and "SBU" describe broad types of potentially sensitive information that might not
even fall within any of the FOIA exemptions. (218) It is significant to note that none of
these new homeland security-related terms is included in Executive Order 12,958, as
amended, and that the use of these labels alone does not provide for any protection
from disclosure under any exemption, let alone Exemption 1. (219) A separate statute
implements protections for "CII," and these protections are incorporated into the
FOIA through Exemption 3. (220) It is worth reiterating that the protections afforded
classified information under Exemption 1 can be applied only to information that has
been properly classified under Executive Order 12,958, as amended.

    1. See Exec. Order No. 10,290, 16 Fed. Reg.
    9795 (Sept. 24, 1951). But see also Exec. Order No. 8381, 5 Fed.
    Reg. 1147 (Mar. 22, 1940) (establishing initial classification structure
    within military to protect information related to "vital military installations
    and equipment").

    2. See, e.g., Exec. Order No. 10,501, 3 C.F.R.
    398 (1949-1953) (Eisenhower Administration Order); Exec. Order No. 10,985,
    27 Fed. Reg. 439 (Jan. 2, 1962) (Kennedy Administration Order); Exec. Order
    No. 11,652, 3 C.F.R. 678 (1971-1975) (Nixon Administration Order); Exec.
    Order 11,862, 40 Fed. Reg. 25,197 (June 11, 1975) (Ford Administration Amendment);
    Exec. Order No. 12,065, 3 C.F.R. 190 (1978) (Carter Administration Order);
    Exec. Order No. 12,356, 3 C.F.R. 166 (1983) (Reagan Administration Order),
    excerpted in FOIA Update, Vol. III, No. 3, at 6.

    3. 5 U.S.C. § 552(b)(1) (2000).

    4. See Exec. Order No. 13,292, 68 Fed. Reg.
    15,315 (Mar. 28, 2003) [hereinafter Exec. Order No. 12,958, as amended],
    reprinted in 50 U.S.C.A. § 435 note (West Supp. 2003) and summarized
    in
    FOIA Post (posted 4/11/03); see also Judicial
    Watch v. United States Dep't of Justice
    , 306 F. Supp. 2d 58, 64-65 (D.D.C.
    2004) (applying amended Executive Order 12,958); Primorac v. CIA,
    277 F. Supp. 2d 117, 120 (D.D.C. 2003) (same).

    5. 3 C.F.R. 333 (1996), reprinted in 50 U.S.C.
    § 435 note (2000) and reprinted in abridged form in FOIA Update,
    Vol. XVI, No. 2, at 5-10.

    6. See FOIA Update, Vol. XVI, No. 2,
    at 3, 12 ("OIP Guidance: The Timing of New E.O. Applicability").

    7. See Halpern v. FBI, 181 F.3d 279,
    289-90 (2d Cir. 1999); Campbell v. United States Dep't of Justice,
    164 F.3d 20, 29 (D.C. Cir. 1998) ("[A]bsent a request by the agency to reevaluate
    an Exemption 1 determination based on a new executive order . . . the court
    must evaluate the agency's decision under the executive order in force at
    the time the classification was made."); Lesar v. United States Dep't
    of Justice
    , 636 F.2d 472, 480 (D.C. Cir. 1980) (concluding that "a reviewing
    court should assess the agency's classification decision according to the
    guidelines established in the Executive Order in effect at the time classification
    took place"); see also Bonner v. United States Dep't of State,
    928 F.2d 1148, 1152 (D.C. Cir. 1991) (rejecting plaintiff's suggestion that
    court assess propriety of agency's classification determination at time
    of court's review, because to do so would subject agencies and courts to
    "an endless cycle of judicially mandated reprocessing"); King v. Dep't
    of Justice
    , 830 F.2d 210, 217 (D.C. Cir. 1987) (finding that "[o]nly
    when a reviewing court contemplates remanding the case to the agency to
    correct a deficiency in its classification determination is it necessary
    to discriminate between the order governing for purposes of review and any
    that may have superseded it"); Assassination Archives & Research
    Ctr. v. CIA
    , 177 F. Supp. 2d 1, 8-9 (D.D.C. 2001) (finding that CIA
    properly classified subject records under Executive Order 10,501 because
    that order was in effect when agency made classification decision), aff'd,
    334 F.3d 55 (D.C. Cir. 2003); Keenan v. Dep't of Justice, No. 94-1909,
    slip op. at 7-8 (D.D.C. Mar. 24, 1997) (rejecting argument that agency should
    apply Executive Order 12,958 because it did not produce supporting affidavit
    until after effective date of new order), renewed motion for summary
    judgment granted in part & denied in part on other grounds
    (D.D.C.
    Dec. 16, 1997); cf. Summers v. Dep't of Justice, 140 F.3d
    1077, 1082 (D.C. Cir. 1998) (remanding to district court because district
    court failed to articulate whether it was applying Executive Order 12,356
    or Executive Order 12,958 to evaluate Exemption 1 withholdings, even though
    district court record made it clear), on remand, No. 87-3168, slip
    op. at 2 (D.D.C. Apr. 19, 2000) (applying Executive Order 12,958 to uphold
    Exemption 1 withholdings).

    8. King, 830 F.2d at 217; see also Campbell,
    164 F.3d at 31 n.11 (recognizing that when court remands to agency for rereview
    of classification, such review is performed under superseding executive
    order).

    9. Id.; see also Kern v. FBI,
    No. 94-0208, slip op. at 5-6 & n.2 (C.D. Cal. Sept. 14, 1998) (remanding
    due to lack of specificity of Vaughn Index; classified information
    to be reviewed under current Executive Order 12,958); Greenberg v. United
    States Dep't of Treasury
    , 10 F. Supp. 2d 3, 12 (D.D.C. 1998) (applying
    Executive Order 12,356 to records at issue, but noting that Executive Order
    12,958 would apply if court "[found] that the agencies improperly withheld
    information pursuant to Exemption 1"); cf. FOIA Update, Vol.
    XVI, No. 2, at 4, 12 (summarizing history of Exemption 1 disclosure orders
    and urging careful attention to classification determinations accordingly).

    10. Baez v. United States Dep't of Justice,
    647 F.2d 1328, 1233 (D.C. Cir. 1980) (upholding agency's classification
    reevaluation under executive order issued during course of district court
    litigation); see, e.g., Miller v. United States Dep't of State,
    779 F.2d 1378, 1388 (8th Cir. 1985) (agency chose to reevaluate under new
    Executive Order 12,356); Military Audit Project v. Casey, 656 F.2d
    724, 737 & n.41 (D.C. Cir. 1981) (agency chose to reevaluate under new
    Executive Order 12,065); Nat'l Sec. Archive v. CIA, No. 99-1160,
    slip op. at 7 (D.D.C. July 31, 2000) ("[E]ven though the existence of [subject]
    documents was originally classified under Executive Order 12,356, the fact
    that they were reevaluated under Executive Order 12,958 means that Executive
    Order 12,958 controls."); Keenan, No. 94-1909, slip op. at 7 (D.D.C.
    Mar. 24, 1997) (finding that although agency could "voluntarily reassess"
    its classification decision under Executive Order 12,958, issued during
    pendency of lawsuit, agency not required to do so).

    11. See Information Security Oversight
    Office Ann. Rep. 2 (2003) (comments of ISOO Director referring to "new priorities
    resulting from the events of September 11, 2001").

    12. Compare Exec. Order No. 12,958, as amended,
    §§ 1.1(a)(4), 1.4(e), (g), (h) (current version), with Exec. Order
    No. 12,958, §§ 1.2(a)(4), 1.5(e), (g) (original version); see also
    FOIA Post (posted 4/11/03). But cf. Primorac, 277
    F. Supp. at 120 (recognizing that FOIA plaintiffs may not compel agencies
    to re-examine proper classification decisions under new executive order).

    13. 410 U.S. 73 (1973).

    14. Id. at 84.

    15. See 5 U.S.C. § 552(a)(4)(B).

    16. See H.R. Rep. No. 93-876, at 7-8 (1974),
    reprinted in 1974 U.S.C.C.A.N. 6267, 6272-73, and in House
    Comm. on Gov't Operations and Senate Comm. on the Judiciary, 94th Cong.,
    1st Sess., Freedom of Information Act and Amendments of 1974 (P.L. 93-502)
    Source Book: Legislative History, Texts, and Other Documents at 121, 127-28
    (1975).

    17. See, e.g., Weissman v. CIA, 565
    F.2d 692, 698 (D.C. Cir. 1977).

    18. Ray v. Turner, 587 F.2d 1187, 1194-95 (D.C.
    Cir. 1978).

    19. Id. at 1194 (quoting legislative history);
    see also Spirko v. USPS, 147 F.3d 992, 997 (D.C. Cir. 1998)
    (explaining that district court should first consider agency affidavits
    before resorting to in camera review); Students Against Genocide v. Dep't
    of State
    , No. 96-667, 1998 WL 699074, at *11 (D.D.C. Aug. 24, 1998)
    (magistrate's recommendation), adopted, No. 96-667 (D.D.C. Sept.
    29, 1998), subsequent magistrate's recommendation, 50 F. Supp. 2d
    20, 23 (D.D.C. 1999), adopted, No. 96-667 (D.D.C. July 22, 1999),
    aff'd on other grounds, 257 F.3d 828 (D.C. Cir. 2001).

    20. See Halperin v. CIA, 629 F.2d 144,
    148 (D.C. Cir. 1980); see, e.g., Pub. Citizen v. Dep't of State,
    276 F.3d 634, 645 (D.C. Cir. 2002) (finding agency's affidavits sufficiently
    detailed to support Exemption 1 withholding and determining that subsequent
    release of some previously classified information was not evidence of bad
    faith); Students Against Genocide v. Dep't of State, 257 F.3d 828,
    837 (D.C. Cir. 2001) (applying Halperin standard to waiver issue
    and finding that Department of State adequately explained how national security
    concerns were not undermined -- and Exemption 1 was not waived -- by display
    of intelligence photographs to United Nations Security Council representatives
    from other countries); Wheeler v. CIA, 271 F. Supp. 2d 132, 139 (D.D.C.
    2003) (denying plaintiff discovery to gather information on agency's classification
    decisionmaking process because plaintiff failed to demonstrate any agency
    bad faith); Ctr. for Int'l Envtl. Law v. Office of the United States
    Trade Representative
    , 237 F. Supp. 2d 17, 20 (D.D.C. 2002) (affirming
    agency's withholding when its affidavits sufficiently explained application
    of Exemption 1 and were not contradicted by any evidence of bad faith);
    Falwell v. Executive Office of the President, 158 F. Supp. 2d 734,
    738 (W.D. Va. 2001) (finding Exemption 1 applicable based on affidavit that
    "fairly described the contents of the material withheld and adequately stated
    . . . reasons for nondisclosure"); Schrecker v. United States
    Dep't of Justice
    , 74 F. Supp. 2d 26, 30 (D.D.C. 1999) (granting summary
    judgment when agency's "affidavits and indices pertaining to nondisclosure
    under Exemption 1 . . . [are] reasonably detailed and submitted in good
    faith"), aff'd in pertinent part, 254 F.3d 162 (D.C. Cir. 2001);
    Judicial Watch, Inc. v. Comm'n on United States-Pac. Trade & Inv.
    Policy
    , No. 97-0099, slip op. at 33 (D.D.C. Sept. 30, 1999) (finding
    that the agency's "entries explain with substantial specificity what material
    it has withheld, why it withheld it, and the risk to U.S. foreign policy
    should the information be revealed," and that therefore the court "need
    not attempt to second guess the department's decision"); Voinche v. FBI,
    46 F. Supp. 2d 26, 29 (D.D.C. 1999) (declaring that agency properly invoked
    Exemption 1 when declaration "show[ed], with reasonable specificity, why
    the documents fall within the exemption" and when "there is no evidence
    of agency bad faith"); Billington v. Dep't of Justice, 11 F. Supp.
    2d 45, 54, 58 (D.D.C. 1998) (finding that plaintiff's evidence "whittles
    down to a string of if-then statements and suggestions of government conspiracy,"
    which provide "no basis upon which to . . . warrant a probe of bad faith"),
    summary judgment granted in pertinent part, 69 F. Supp. 2d 128, 135
    (D.D.C. 1999), aff'd in part, vacated in part & remanded all on other
    grounds
    , 233 F.3d 581 (D.C. Cir. 2000) (Exemption 1 decision not challenged
    on appeal); cf. Pipko v. CIA, No. 02-3250, 2004 WL 743958,
    at *2 (D.N.J. Mar. 26, 2004) (noting that agency affidavits must provide
    more than "merely glib assertions" to support withholding); Coldiron
    v. Dep't of Justice
    , No. 02-0927, 2004 WL 440445, at *6 (D.D.C. Mar.
    2, 2004) (observing that courts do not expect "anything resembling poetry,"
    but nonetheless expressing dissatisfaction with agency's "cut and paste"
    affidavits); Voinche v. FBI, 940 F. Supp. 323, 328 (D.D.C. 1996)
    (granting summary judgment despite "troubling" and "vague" affidavits in
    light of thoroughness of agency's other submissions and fact that Vaughn
    affidavits in Exemption 1 cases "inherently require a degree of generalization"
    to prevent compromise of national security interests), aff'd per curiam,
    No. 96-5304, 1997 WL 411685 (D.C. Cir. June 19, 1997); Ajluni v. FBI,
    947 F. Supp. 599, 607 (N.D.N.Y. 1996) (rejecting plaintiff's request for
    discovery of procedure by which documents are classified because Vaughn
    Index "sufficient").

    21. Halperin, 629 F.2d at 148; see also
    Bowers v. United States Dep't of Justice, 930 F.2d 350, 357 (4th
    Cir. 1991) (stating that "a court should hesitate to substitute its judgment
    of the sensitivity of the information for that of the agency"); Military
    Audit Project v. Casey
    , 656 F.2d 724, 738 (D.C. Cir. 1981) (emphasizing
    that deference is due agency's classification judgment); Edmonds v. FBI,
    272 F. Supp. 2d 35, 45-46 (D.D.C. 2003) (same); Snyder v. CIA, 230
    F. Supp. 2d 17, 24 (D.D.C. 2002) (observing that agency is in best position
    to make "ultimate assessment of harm to intelligence sources and methods").

    22. See, e.g., Stillman v. CIA, 319
    F.3d 546, 548 (D.C. Cir. 2003) (criticizing the district court because it
    failed "to evaluate the pleadings and affidavits to be submitted by the
    Government in defense of its classification decision," thereby erroneously
    withholding the deference that ordinarily is owed to national security officials)
    (non-FOIA case); King v. United States Dep't of Justice, 830 F.2d
    210, 217 (D.C. Cir. 1987) (concluding that "the court owes substantial weight
    to detailed agency explanations in the national security context"); Goldberg
    v. United States Dep't of State
    , 818 F.2d 71, 79-80 (D.C. Cir. 1987);
    see also Ctr. for Nat'l Sec. Studies v. United States Dep't of
    Justice
    , 331 F.3d 918, 928 (D.C. Cir. 2003) (noting that "the judiciary
    is in an extremely poor position to second-guess the executive's judgment
    in this area") (Exemption 7(A)), cert. denied, 124 S. Ct. 1041 (2004);
    Wheeler, 271 F. Supp. 2d at 140 (declining to substitute judgment
    of plaintiff or court for that of agency classification authority simply
    on basis that classification action required exercise of some discretion);
    ACLU v. United States Dep't of Justice, 265 F. Supp. 2d 20, 27 (D.D.C.
    2003) (reminding that although the agency's declarations "are entitled to
    substantial weight, they must nevertheless afford the requester an ample
    opportunity to contest, and the Court to review, the soundness of the withholding");
    Snyder, 230 F. Supp. 2d at 22 (ruling that substantial weight should
    be given to agency declarations so long as they are reasonably specific
    and detailed (applying Halperin, 629 F.2d at 148)); Linn v. United
    States Dep't of Justice
    , No. 92-1406, 1995 WL 631847, at *26 (D.D.C.
    Aug. 22, 1995) (indicating that role of courts in reviewing Exemption 1
    claims "is to determine whether the agency has presented a logical connection
    between its use of the exemption and the legitimate national security concerns
    involved; the Court does not have to ascertain whether the underlying facts
    of each specific application merit the agency's national security concerns");
    Steinberg v. United States Dep't of Justice, 801 F. Supp. 800, 802-03
    (D.D.C. 1992) (rejecting plaintiff's attack that coded Vaughn Index
    constituted inadequate "boilerplate," especially given "nature of underlying
    materials"), aff'd in pertinent part, 23 F.3d 548, 553 (D.C. Cir.
    1994); cf. Dep't of the Navy v. Egan, 484 U.S. 518, 529-30
    (1988) (allowing deference to agency expertise in granting of security clearances)
    (non-FOIA case).

    23. See, e.g., Tavakoli-Nouri v. CIA,
    No. 00-3620, 2001 U.S. App. LEXIS 24676, at *9 (3d Cir. Oct. 18, 2001) (recognizing
    that courts give "substantial weight to agency's affidavit regarding details
    of classified status of a disputed document" (referring to McDonnell
    v. United States
    , 4 F.3d 1227, 1242 (3d Cir. 1993))); Maynard v.
    CIA
    , 986 F.2d 547, 555-56 & n.7 (1st Cir. 1993) (recognizing that
    courts must accord "substantial deference" to agency withholding determinations
    and "uphold the agency's decision" so long as withheld information logically
    falls into the exemption category cited and there exists no evidence of
    agency "bad faith"); Bowers, 930 F.2d at 357 (stating that "[w]hat
    fact or bit of information may compromise national security is best left
    to the intelligence experts"); cf. Hunt, 981 F.2d at 1119
    (applying similar deference in Exemption 3 case involving national security).
    But see Minier v. CIA, 88 F.3d 796, 800 (9th Cir. 1996) (considering
    whether district court had "adequate factual basis upon which to base its
    decision" before undertaking de novo review (citing Painting Indus. of
    Haw. Mkt. Recovery Fund v. United States Dep't of the Air Force
    , 26
    F.3d 1479, 1482 (9th Cir. 1994), and Schiffer v. FBI, 78 F.3d 1405,
    1409 (9th Cir. 1996))) (Exemption 3).

    24. Halpern v. FBI, 181 F.3d 279, 293 (2d Cir.
    1999) (declaring that agency's "explanations read more like a policy justification"
    for Executive Order 12,356, that the "affidavit gives no contextual description,"
    and that it fails to "fulfill the functional purposes addressed in Vaughn");
    Campbell v. United States Dep't of Justice, 164 F.3d 20, 31, 37 (D.C.
    Cir. 1998) (remanding to district court to allow the FBI to "further justify"
    its Exemption 1 claim because its declaration failed to "draw any connection
    between the documents at issue and the general standards that govern the
    national security exemption"), on remand, 193 F. Supp. 2d 29, 37
    (D.D.C. 2001) (finding declaration insufficient where it merely concluded,
    without further elaboration, that "disclosure of [intelligence information]
    . . . could reasonably be expected to cause serious damage to
    the national security"); Oglesby v. United States Dep't of the Army,
    79 F.3d 1172, 1179-84 (D.C. Cir. 1996) (rejecting as insufficient certain
    Vaughn Indexes because agencies must itemize each document
    and adequately explain reasons for nondisclosure); Rosenfeld v. United
    States Dep't of Justice
    , 57 F.3d 803, 807 (9th Cir. 1995) (affirming
    district court disclosure order based upon finding that government failed
    to show with "any particularity" why classified portions of several documents
    should be withheld); Wiener v. FBI, 943 F.2d 972, 978-79 (9th Cir.
    1991) (rejecting as inadequate agency justifications contained in coded
    Vaughn affidavits, based upon view that they consist of "boilerplate"
    explanations not "tailored" to particular information being withheld pursuant
    to Exemption 1); Oglesby v. United States Dep't of the Army, 920
    F.2d 57, 66 n.12 (D.C. Cir. 1990) (noting degree of specificity required
    in public Vaughn affidavit in Exemption 1 case, especially with regard
    to agency's obligation to segregate and release nonexempt material); Greenberg
    v. United States Dep't of Treasury
    , 10 F. Supp. 2d 3, 15, 26-27 (D.D.C.
    1998) (reserving judgment on Exemption 1 claims of CIA and FBI, and ordering
    new affidavits because agencies' Vaughn Indexes were found to be
    insufficient to permit court to engage in proper evaluation); Keenan
    v. Dep't of Justice
    , No. 94-1909, slip op. at 8-11 (D.D.C. Mar. 24,
    1997) (finding to be insufficient coded Vaughn Index that merely
    recited executive order's language without providing information about contents
    of withheld information), renewed motion for summary judgment denied
    in pertinent part
    (D.D.C. Dec. 16, 1997).

    25. See, e.g., Doherty v. United States
    Dep't of Justice
    , 775 F.2d 49, 53 (2d Cir. 1985) (adjudging that "the
    court should restrain its discretion to order in camera review"); Hayden
    v. NSA
    , 608 F.2d 1381, 1387 (D.C. Cir. 1979) (stating that "[w]hen the
    agency meets its burden by means of affidavits, in camera review is neither
    necessary nor appropriate"); Pub. Educ. Ctr., Inc. v. DOD, 905 F.
    Supp. 19, 22 (D.D.C. 1995) (declining in camera review of withheld videotapes
    after according substantial weight to agency's affidavit that public disclosure
    would harm national security); King v. United States Dep't of Justice,
    586 F. Supp. 286, 290 (D.D.C. 1983) (characterizing in camera review as
    last resort), aff'd in part & rev'd in part on other grounds,
    830 F.2d 210 (D.C. Cir. 1987); cf. Stillman, 319 F.3d at 548
    (noting in general that in camera affidavits can effectively supplement
    public affidavits to explain agency classification decisions) (non-FOIA
    case); Young v. CIA, 972 F.2d 536, 538-39 (4th Cir. 1992) (holding
    that district court did not abuse its discretion by refusing to review documents
    in camera -- despite small number  -- because agency's affidavits found
    sufficiently specific to meet required standards for proper withholding).
    But see, e.g., Patterson v. FBI, 893 F.2d 595, 599 (3d Cir.
    1990) (finding in camera review of two documents appropriate when agency
    description of records was insufficient to permit meaningful review and
    to verify good faith of agency in conducting its investigation); Allen
    v. CIA
    , 636 F.2d 1287, 1291 (D.C. Cir. 1980) (holding that conclusory
    affidavit by agency requires remand to district court for in camera inspection
    of fifteen-page document); Trulock v. United States Dep't of Justice,
    257 F. Supp. 2d 48, 51 (D.D.C. 2003) (observing that documents should be
    reviewed in camera when declarations are insufficient to demonstrate validity
    of withholdings); Armstrong v. Executive Office of the President,
    No. 89-142, slip op. at 4-8 (D.D.C. July 28, 1995) (ordering in camera review
    of four of seventeen documents at issue because government's explanation
    for withholdings insufficient, but denying plaintiff's request that court
    review documents merely on basis that government subsequently released previously
    withheld material), aff'd on other grounds, 97 F.3d 575 (D.C. Cir.
    1996); Moore v. FBI, No. 83-1541, 1984 U.S. Dist. LEXIS 18732, at
    *9 (D.D.C. Mar. 9, 1984) (finding in camera review particularly appropriate
    when only small volume of documents were involved and government made proffer),
    aff'd, 762 F.2d 138 (D.C. Cir. 1985) (unpublished table decision);
    cf. Jones v. FBI, 41 F.3d 238, 242-44 (6th Cir. 1994) (finding
    in camera inspection necessary, not because FBI acted in bad faith with
    regard to plaintiff's FOIA request, but due to evidence of illegality with
    regard to FBI's underlying investigation); Wiener, 943 F.2d at 979
    & n.9 (noting that in camera review by district court cannot "replace"
    requirement for sufficient Vaughn Index and can only "supplement"
    agency's justifications contained in affidavits).

    26. Armstrong v. Executive Office of the President,
    97 F.3d 575, 580 (D.C. Cir. 1996).

    27. Id.

    28. Stein v. Dep't of Justice, 662 F.2d 1245,
    1253 (7th Cir. 1981).

    29. McGehee v. CIA, 697 F.2d 1095, 1113 (D.C.
    Cir. 1983).

    30. McGehee v. CIA, 711 F.2d 1076, 1077 (D.C.
    Cir. 1983); see also Wheeler, 271 F. Supp. 2d at 139 (finding
    that it was not at all proof of bad faith to show merely that agency handled
    two similar FOIA requests in different manner); Wash. Post Co. v. DOD,
    No. 84-2949, 1987 U.S. Dist. LEXIS 16108, at *12 (D.D.C. Feb. 25, 1987)
    (deciding that addition of second classification category at time of litigation
    "does not create an inference of 'bad faith' concerning the processing of
    plaintiff's request or otherwise implicating the affiant's credibility");
    cf. Gilmore v. NSA, No. C92-3646, 1993 U.S. Dist. LEXIS 7694,
    at **28-30 (N.D. Cal. May 3, 1993) (holding that subsequent release by agency
    of some material initially withheld pursuant to Exemption 1 is not any indication
    of "bad faith").

    31. See, e.g., Students Against Genocide
    v. Dep't of State
    , 257 F.3d 828, 837 (D.C. Cir. 2001) (holding that
    because courts lack expertise in national security matters, they must give
    "'substantial weight to agency statements'" (quoting Halperin v. CIA,
    629 F.2d 144, 148 (D.C. Cir. 1980))); Young v. CIA, 972 F.2d 536,
    538-39 (4th Cir. 1993) (finding district court properly deferred to agency
    affiant because no evidence of bad faith); Bowers v. United States Dep't
    of Justice
    , 930 F.2d 350, 357 (4th Cir. 1991) (observing that "[w]hat
    fact . . . may compromise national security is best left to
    the intelligence experts"); Doherty v. United States Dep't of Justice,
    775 F.2d 49, 52 (2d Cir. 1985) (according "substantial weight" to agency
    declaration); Taylor v. Dep't of the Army, 684 F.2d 99, 109 (D.C.
    Cir. 1982) (holding that classification affidavits are entitled to "the
    utmost deference") (reversing district court disclosure order); Edmonds
    v. FBI
    , 272 F. Supp. 2d 35, 46, 49 (D.D.C. 2003) (opining that courts
    should not challenge "the predictive judgments" of national security officials
    without cause to do so); ACLU v. United States Dep't of Justice,
    265 F. Supp. 2d 20, 27 (D.D.C. 2003) (holding that "the court must recognize
    that the executive branch departments responsible for national security
    and national defense have unique insights and special expertise concerning
    the kind of disclosures that may be harmful" (citing Krikorian v. Dep't
    of State
    , 984 F.2d 461, 464 (D.C. Cir. 1993))); Assassination Archives
    & Research Ctr. v. CIA
    , 177 F. Supp. 2d 1, 7 (D.D.C. 2001) (recognizing
    that district courts must "defer to federal agencies in questions of national
    security and intelligence"), aff'd, 334 F.2d 55 (D.C. Cir. 2003);
    Canning v. United States Dep't of Justice, 848 F. Supp. 1037, 1042
    (D.D.C. 1994) (describing how in according such deference, courts "credit
    agency expertise in evaluating matters of national security by focusing
    attention primarily on whether affidavits are sufficiently specific and
    by ensuring that they are not controverted by contradictory evidence or
    evidence of bad faith"); cf. Stillman v. CIA, 319 F.3d 546,
    549 (D.C. Cir. 2003) (instructing that agency affidavits should be reviewed
    "with the appropriate degree of deference owed to the Executive Branch concerning
    classification decisions") (non-FOIA case); Wiener v. FBI, No. 83-1720,
    slip op. at 5 (C.D. Cal. Mar. 5, 2001) (rejecting plaintiff's request to
    review redacted versions of withheld documents in order to "independently
    verify" the government's characterization of their content, because to grant
    it would "remove all deference to the FBI's classification of its documents").
    But see also FOIA Update, Vol. XVI, No. 2, at 4, 12 (summarizing
    history of Exemption 1 disclosure orders and urging careful attention to
    classification determinations accordingly).

    32. Ctr. for Nat'l Sec. Studies v. United States
    Dep't of Justice
    , 331 F.3d 918, 928 (D.C. Cir. 2003) (quoting CIA
    v. Sims
    , 471 U.S. 159, 179 (1985)) (Exemption 7(A)), cert. denied,
    124 S. Ct. 1041 (2004).

    33. CIA v. Sims, 471 U.S. at 179-80; see
    also, e.g.
    , Zadvydas v. Davis, 533 U.S. 678, 696 (2001) (noting
    that "terrorism or other special circumstances" may warrant "heightened
    deference") (non-FOIA case); Dep't of the Navy v. Egan, 484 U.S.
    518, 530 (1988) (explaining that "courts traditionally have been reluctant
    to intrude upon the authority of the executive in national security affairs")
    (non-FOIA case); Ctr. for Nat'l Sec. Studies, 331 F.3d at 918 (rejecting
    "artificial limits" on deference, and explaining that "deference depends
    on the substance of the danger posed by disclosure -- that is, harm to the
    national security -- not the FOIA exemption invoked").

    34. Miller v. United States Dep't of State,
    779 F.2d 1378, 1387 (8th Cir. 1985).

    35. See, e.g., Maynard v. CIA, 986 F.2d
    547, 556 n.9 (1st Cir. 1993) (stating that court "not in a position to 'second-guess'"
    agency's determination regarding need for continued classification of material);
    Krikorian, 984 F.2d at 464-65 (acknowledging agency's "unique insights"
    in areas of national defense and foreign relation and further explaining
    that because judges "'lack the expertise necessary to second-guess .
    . .
    agency opinions in the typical national security FOIA case,'"
    they must accord substantial deference to an agency's affidavit (quoting
    Halperin, 629 F.2d at 148)); Nat'l Sec. Archive v. CIA, No.
    99-1160, slip op. at 8 (D.D.C. July 31, 2000) ("Agencies have more experience
    in the national security arena than courts do, and therefore their judgment
    warrants deference as long as the agency can demonstrate a logical connection
    between a withheld document and an alleged harm to national security.");
    Aftergood v. CIA, No. 98-2107, 1999 U.S. Dist. LEXIS 18135, at **9-10
    (D.D.C. Nov. 12, 1999) (declaring that courts must respect agency predictions
    concerning potential national security harm from disclosure, and recognizing
    that these predictions "must always be speculative to some extent"); Braslavsky
    v. FBI
    , No. 92 C 3027, 1994 WL 247078, at *2 (N.D. Ill. June 6, 1994)
    (commenting that "[a] court has neither the experience nor expertise to
    determine whether a classification [decision] is substantively correct"),
    aff'd, 57 F.3d 1073 (7th Cir. 1995) (unpublished table decision).
    But see King v. United States Dep't of Justice, 830 F.2d 210,
    226 (D.C. Cir. 1987) (holding that trial court erred in deferring to agency's
    judgment that information more than thirty-five years old remained classified
    when executive order presumed declassification of information over twenty
    years old and agency merely indicated procedural compliance with order);
    Coldiron v. Dep't of Justice, No. 02-0927, 2004 WL 440445, at *6
    (D.D.C. Mar. 2, 2004) (cautioning that court's deference should not be used
    as "wet blanket" to avoid proper justification of exemptions); Lawyers
    Comm. for Human Rights v. INS
    , 721 F. Supp. 552, 561 (S.D.N.Y. 1989)
    (reminding that such deference does not give agency "carte blanche" to withhold
    responsive documents without "valid and thorough affidavit"), subsequent
    decision
    , No. 87-Civ-1115, slip op. at 1-2 (S.D.N.Y. June 7, 1990) (upholding
    Exemption 1 excisions after in camera review of certain documents and classified
    Vaughn affidavit).

    36. Ctr. for Nat'l Sec. Studies, 331 F.3d at
    927.

    37. Id. at 928.

    38. Id.; see also Bassiouni v. CIA,
    No. 02-C-4049, 2004 U.S. Dist. LEXIS 5290, at **14-15 (N.D. Ill. Mar. 31,
    2004) (deferring to agency determination of harm, and further noting that
    "[i]n the realm of intelligence, a lot can occur in a short period of time")
    (appeal pending).

    39. See, e.g., Van Atta v. Def. Intelligence
    Agency
    , No. 87-1508, 1988 WL 73856, at **1-2 (D.D.C. July 6, 1988) (rejecting
    opinion of requester who claimed that willingness of foreign diplomat to
    discuss issue indicated no expectation of confidentiality); Wash. Post
    v. DOD
    , No. 84-2949, 1987 U.S. Dist. LEXIS 16108, at **19-20 (D.D.C.
    Feb. 25, 1987) (rejecting opinion of U.S. Senator who read document in official
    capacity as member of Committee on Foreign Relations); cf. Lawyers
    Alliance for Nuclear Arms Control v. Dep't of Energy
    , No. 88-CV-7635,
    1991 WL 274860, at **1-2 (E.D. Pa. Dec. 18, 1991) (upholding Exemption 1
    claim for Joint Verification Agreement records when requester provided no
    "admissible evidence" that officials of Soviet Union consented to release
    of requested nuclear test results). But cf. Wash. Post v. DOD,
    766 F. Supp. 1, 13-14 (D.D.C. 1991) (adjudging that "non-official releases"
    contained in books by participants involved in Iranian hostage rescue attempt
    -- including ground assault commander and former President Carter -- have
    "good deal of reliability" and require government to explain "how official
    disclosure" of code names "at this time would damage national security").

    40. See Rush v. Dep't of State, 748
    F. Supp. 1548, 1554 (S.D. Fla. 1990) (finding that plaintiff, who retired
    from government service in 1977, failed to rebut opinion of current government
    officials on necessity of continued classification); cf. Goldberg
    v. United States Dep't of State
    , 818 F.2d 71, 79-80 (D.C. Cir. 1987)
    (accepting classification officer's national security determination even
    though more than 100 ambassadors did not initially classify information).

    41. See Hudson River Sloop Clearwater, Inc.
    v. Dep't of the Navy
    , 891 F.2d 414, 421-22 (2d Cir. 1989).

    42. See Gardels v. CIA, 689 F.2d 1100,
    1106 n.5 (D.C. Cir. 1982).

    43. See Pfeiffer v. CIA, 721 F. Supp.
    337, 340-41 (D.D.C. 1989).

    44. Aftergood, No. 98-2107, 1999 U.S. Dist.
    LEXIS 18135, at **11-12 (D.D.C. Jan. 12, 1999) (deferring to Director of
    Central Intelligence's determination that release of 1999 CIA budget data
    could reasonably be expected to harm intelligence activities, despite fact
    that the President had encouraged disclosure of previous budget data); see
    also
    Aftergood v. CIA, No. 02-1146, slip op. at 3 (D.D.C. Feb.
    6, 2004) (finding CIA's aggregate intelligence budget data for 2002 to be
    exempt from disclosure, because it reveals the allocation, transfer, and
    funding of intelligence programs) (Exemption 3) (motion for reconsideration
    pending).

    45. See FOIA Update, Vol. XVI, No. 2,
    at 4, 7 (compiling and discussing cases in which courts have rejected Exemption
    1 claims and in some cases have ordered disclosure, but noting that such
    disclosure orders nearly always were overturned on appeal); cf. AFL-CIO
    v. FEC
    , 333 F.3d 168, 179 (D.C. Cir. 2003) (concluding that the agency's
    disclosure policies in relation to the FOIA might be unconstitutional as
    applied, and requiring the agency to "provide a separate First Amendment
    justification for publicly disclosing" information "relating to speech or
    political activity" that it compiled for law enforcement purposes) (Exemption
    7(C)).

    46. Weatherhead v. United States, No. 95-519,
    slip op. at 5-6 (E.D. Wash. Mar. 29, 1996), reconsideration granted in
    pertinent part
    (E.D. Wash. Sept. 9, 1996) (upholding classification
    upon in camera inspection), rev'd, 157 F.3d 735 (9th Cir. 1998),
    appellate decision vacated & case remanded for dismissal, 528
    U.S. 1042 (1999).

    47. Id. at 2.

    48. Weatherhead, No. 95-519, slip op. at 3-4
    (E.D. Wash. Sept. 9, 1996).

    49. Id. at 7-8.

    50. Id. at 8. But see Keenan v. Dep't
    of Justice
    , No. 94-1909, slip op. at 8-9 (D.D.C. Dec. 16, 1997) (ordering
    upon in camera inspection the release of document segments that the agency
    withheld pursuant to Exemption 1, because the agency "failed to demonstrate"
    how disclosure of information ranging from thirty-two to forty-six years
    old could "continue to damage the national security"); Springmann v.
    United States Dep't of State
    , No. 93-1238, slip op. at 9-11 (D.D.C.
    Apr. 21, 1997) (ruling that disclosure of two paragraphs in embassy report
    about American employee engaging in religiously offensive behavior in Saudi
    Arabia would not harm national security), summary judgment granted to
    defendant upon reconsideration
    (D.D.C. Feb. 24, 2000) (ruling ultimately
    in agency's favor based upon in camera declaration).

    51. Weatherhead v. United States, 157 F.3d
    735, 742 (9th Cir. 1998).

    52. See Weatherhead v. United States,
    527 U.S. 1063 (1999).

    53. See FOIA Update, Vol. XX, No. 1,
    at 1.

    54. See id.

    55. See id.

    56. See United States v. Weatherhead,
    528 U.S. 1042 (1999) (vacating Ninth Circuit decision).

    57. See, e.g., Patterson v. FBI, 893
    F.2d 595, 599-600 (3d Cir. 1990); Simmons v. United States Dep't of Justice,
    796 F.2d 709, 711 (4th Cir. 1986); Ingle v. Dep't of Justice, 698
    F.2d 259, 264 (6th Cir. 1983) (ruling that in camera review should be secondary
    to testimony or affidavits); Salisbury v. United States, 690 F.2d
    966, 973 n.3 (D.C. Cir. 1982); Stein v. Dep't of Justice, 662 F.2d
    1245, 1255-56 (7th Cir. 1981); Greyshock v. United States Coast Guard,
    No. 94-00563, slip op. at 1 (D. Haw. May 9, 1995) (finding upon in camera
    examination of agency's classified declaration records at issue properly
    withheld), aff'd, 107 F.3d 16 (9th Cir. 1997) (unpublished table
    decision); cf. Stillman v. CIA, 319 F.3d 546, 548 (D.C. Cir.
    2003) (noting that in camera affidavits are effective tools for justifying
    national security withholdings) (non-FOIA case); Armstrong v. Executive
    Office of the President
    , 97 F.3d 575, 580-81 (D.C. Cir. 1996) (finding
    that although district court may have erred by not explaining reasons for
    using in camera affidavit, any such error was "harmless" because agency
    adequately explained why it could not release withheld information).

    58. Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C.
    Cir. 1976); see also Armstrong, 97 F.3d at 580 (holding that
    when district court uses an in camera affidavit, even in national security
    cases, "it must both make its reasons for doing so clear and make as much
    as possible of the in camera submission available to the opposing party"
    (citing Lykins v. United States Dep't of Justice, 725 F.2d 1455,
    1465 (D.C. Cir. 1984))); Patterson, 893 F.2d at 600; Simmons,
    796 F.2d at 710; Pub. Citizen v. Dep't of State, 100 F. Supp. 2d
    10, 27-28 (D.D.C. 2000) (ordering submission of an in camera affidavit after
    first finding that agency's public affidavit was as complete as possible
    and that any further description "would reveal the [very] information the
    agency is trying to withhold"), aff'd on other grounds, 276 F.3d
    674 (D.C. Cir. 2002); Payne v. Minihan, No. 97-0266, slip op. at
    49 & n.20 (D.N.M. Apr. 30, 1998) (ordering in camera affidavit upon
    finding that public record was "complete as possible"), summary judgment
    granted
    (D.N.M. Oct. 27, 1999), aff'd, 232 F.3d 902 (10th Cir.
    2000) (unpublished table decision); Scott v. CIA, 916 F. Supp. 42,
    48-49 (D.D.C. 1996) (denying request for in camera review until agency "creates
    as full a public record as possible"); Pub. Educ. Ctr., Inc. v. DOD,
    905 F. Supp. 19, 22 (D.D.C. 1995) (ordering in camera review only after
    the agency created "as full a public record as possible" (citing Hayden
    v. NSA
    , 608 F.2d 1381, 1384 (D.C. Cir. 1979))); Nat'l Sec. Archive
    v. Office of Indep. Counsel
    , No. 89-2308, 1992 WL 1352663, at **3-4
    (D.D.C. Aug. 28, 1992) (applying Phillippi standards, and refusing
    to review in camera affidavits until agency "has stated publicly 'in as
    much detail as possible' . . . reasons for non-disclosure");
    Moessmer v. CIA, No. 86-948, slip op. at 9-11 (E.D. Mo. Feb. 17,
    1987) (finding in camera review appropriate when record contains contradictory
    evidence), aff'd, 871 F.2d 1092 (6th Cir. 1988) (unpublished table
    decision); cf. Lion Raisins Inc. v. USDA, 354 F.3d 1072, 1083
    (9th Cir. 2004) (approving the "use of in camera affidavits in order to
    supplement prior public affidavits that were too general," but rejecting
    the district court's use of in camera affidavits as "the sole factual basis
    for a district court's decision"). But see Pub. Citizen v. Dep't
    of State
    , No. 91-746, 1991 WL 179116, at *3 (D.D.C. Aug. 26, 1991) (ordering
    in camera review of records upon basis that public testimony of ambassador
    may have "waived" Exemption 1 protection).

    59. See Campbell v. United States Dep't
    of Justice
    , 164 F.3d 20, 30 (D.C. Cir. 1999) (requiring defendant to
    provide plaintiff with "'a meaningful opportunity to contest, and the district
    court [with] an adequate foundation to review' the soundness of the withholding'"
    (quoting King v. United States Dep't of Justice, 830 F.2d 210, 218
    (D.C. Cir. 1987))); Coldiron v. Dep't of Justice, No. 02-0927, 2004
    WL 440445, at *3 (D.D.C. Mar. 2, 2004) (same); Campbell v. United States
    Dep't of Justice
    , 193 F. Supp. 2d 29, 37 (D.D.C. 2001) (same), partial
    reconsideration denied
    , 231 F. Supp. 2d 1 (D.D.C. 2002); see also
    ACLU v. United States Dep't of Justice, 265 F. Supp. 2d 20, 27 (D.D.C.
    2003) (acknowledging that agency affidavits "are entitled to substantial
    weight," but finding that they "must nevertheless afford the requester an
    ample opportunity to contest" them).

    60. See Salisbury, 690 F.2d at 973 n.3;
    Weberman v. NSA, 668 F.2d 676, 678 (2d Cir. 1982); Hayden,
    608 F.2d at 1385-86; see also Ellsberg v. Mitchell, 709 F.2d
    51, 61 (D.C. Cir. 1983) (holding that plaintiff's counsel not permitted
    to participate in in camera review of documents arguably covered by state
    secrets privilege); Pollard v. FBI, 705 F.2d 1151, 1154 (9th Cir.
    1983) (finding no reversible error where court not only reviewed affidavit
    and documents in camera, but also received authenticating testimony ex parte);
    cf. Arieff v. United States Dep't of the Navy, 712 F.2d 1462,
    1470-71 & n.2 (D.C. Cir. 1983) (denying participation by plaintiff's
    counsel even when information withheld was personal privacy information).
    But cf. Lederle Lab. v. HHS, No. 88-249, 1988 WL 47649, at
    *1 (D.D.C. May 2, 1988) (granting restrictive protective order in Exemption
    4 case permitting counsel for requester to review contested business information).

    61. See Wash. Post v. DOD, No. 84-3400,
    slip op. at 2 (D.D.C. Jan. 15, 1988), petition for mandamus denied sub
    nom.
    In re DOD, 848 F.2d 232 (D.C. Cir. 1988); cf. Bay
    Area Lawyers Alliance for Nuclear Arms Control v. Dep't of State
    , 818
    F. Supp. 1291, 1301 (N.D. Cal. 1992) (holding that court "will not hesitate"
    to appoint special master to assist with in camera review of documents if
    agency fails to submit adequate Vaughn declaration).

    62. See, e.g., Wilson v. CIA, No. 89-3356,
    1991 WL 226682, at *3 (D.D.C. Oct. 15, 1991) (ordering in camera submission
    of "sample" of fifty documents because it was "neither necessary nor practicable"
    for court to review all 1000 processed ones).

    63. In re United States Dep't of Justice, No.
    87-1205, slip op. at 4-5 (4th Cir. Apr. 7, 1988).

    64. Bowers v. United States Dep't of Justice,
    No. C-C-86-336, 1990 WL 41893, at *1 (W.D.N.C. Mar. 9, 1990), rev'd on
    other grounds
    , 930 F.2d 350 (4th Cir. 1991).

    65. Willens v. NSC, 720 F. Supp. 15, 16 (D.D.C.
    1989); cf. Physicians for Soc. Responsibility, Inc. v. United
    States Dep't of Justice
    , No. 85-169, slip op. at 3-4 (D.D.C. Aug. 25,
    1985) (placing transcript of in camera proceedings -- from which plaintiff's
    counsel was excluded -- under seal). But cf. Pollard, 705
    F.2d at 1154 (finding no reversible error when no transcript made of ex
    parte testimony of FBI Special Agent who merely "authenticated and described"
    documents at issue).

    66. See, e.g., Pub. Citizen, 100 F.
    Supp. 2d at 27-28 (ordering submission of an in camera affidavit because
    further description in a public affidavit "would reveal the [very] information
    the agency is trying to withhold"); Pub. Educ. Ctr., 905 F. Supp.
    at 22 (ordering in camera affidavit because "'extensive public justification
    would threaten to reveal the very information for which . . . [Exemption
    1 was] claimed'" (quoting Lykins, 725 F.2d at 1463)); cf.
    Maynard v. CIA, 986 F.2d 547, 557 (1st Cir. 1993) (reasoning that
    "a more detailed affidavit could have revealed the very intelligence sources
    and methods the CIA wished to keep secret"); Gilmore v. NSA, No.
    C92-3646, 1993 U.S. Dist. LEXIS 7694, at **18-19 (N.D. Cal. May 3, 1993)
    (ruling that agency has provided as much information as possible in public
    affidavit without "thwarting" purpose of Exemption 1 (citing King,
    830 F.2d at 224)); Krikorian v. Dep't of State, No. 88-3419, 1990
    WL 236108, at *3 (D.D.C. Dec. 19, 1990) (declaring agency's public affidavits
    sufficient because requiring more detailed descriptions of information would
    give foreign governments and confidential intelligence sources "reason to
    pause" before offering advice or useful information to agency officials
    in future), aff'd in pertinent part, 984 F.2d 461, 464-65 (D.C. Cir.
    1993); Green v. United States Dep't of State, No. 85-0504, slip op.
    at 17-18 (D.D.C. Apr. 17, 1990) (determining that public Vaughn affidavit
    containing additional information could "well have the effect of prematurely
    letting the cat out of the bag").

    67. See Phillippi, 546 F.2d at 1013
    (dealing with request for records regarding Glomar Explorer submarine-retrieval
    ship, so "neither confirm nor deny" response is now known as a "Glomar"
    response or as "Glomarization"); see, e.g., Frugone v. CIA,
    169 F.3d 772, 775 (D.C. Cir. 1999) (finding that the CIA properly refused
    to confirm or deny whether plaintiff was ever employed by the CIA, on the
    basis that disclosure could cause "diplomatic tension between Chile and
    the United States" or could "lessen the burden facing a foreign intelligence
    agency attempting to track the CIA's covert activities abroad"); Miller
    v. Casey
    , 730 F.2d 773, 776 (D.C. Cir. 1984) (applying response to request
    for any record reflecting any attempt by Western countries to overthrow
    Albanian government); Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir.
    1982) (applying response to request for any record revealing any covert
    CIA connection with University of California); Wheeler v. CIA, 271
    F. Supp. 2d 132, 140 (D.D.C. 2003) (allowing the agency to give a "Glomar"
    response to a request for records concerning plaintiff's activities as a
    journalist in Cuba during the 1960s); Hogan v. Huff, No. 00-6753,
    2002 WL 1359722, at *7 (S.D.N.Y. June, 21, 2002) (ruling that the agency
    may use a "Glomar" response to protect information "whenever the fact of
    [the information's] existence is itself classified") (decided under original
    version of Executive Order 12,958); Rubin v. CIA, No. 01 CIV 2274,
    2001 WL 1537706, at *4 (S.D.N.Y. Dec. 3, 2001) (holding that CIA properly
    refused to confirm or deny existence of records concerning two deceased
    British poets, because acknowledgment would negatively impact foreign relations
    and compromise intelligence sources); Nat'l Sec. Archive v. CIA,
    No. 99-1160, slip op. at 9 (D.D.C. July 31, 2000) (finding that a "Glomar"
    response would have been appropriate for a request for CIA biographies on
    seven living former East European leaders, because disclosing which leaders
    were the subjects of biographic intelligence "would reveal how the CIA allocates
    its resources" and thereby help adversaries "subvert CIA efforts," but concluding
    that the CIA waived its Glomar position through prior disclosure of existence
    of records); Arabian Shield Dev. Co. v. CIA, No. 3-98-0624, 1999
    WL 118796, at *9 (N.D. Tex. Feb. 26, 1999) (holding that agency properly
    refused to confirm or deny whether it "has collected intelligence regarding
    specific individuals or corporations, or has an intelligence interest or
    a facility in a particular foreign location"), aff'd per curiam,
    208 F.3d 1007 (5th Cir. 2000) (unpublished table decision); Roman v.
    Dailey
    , No. 97-1164, 1998 U.S. Dist. LEXIS 6708, at **7-10 (D.D.C. May
    11, 1998) (finding that agencies properly refused to confirm or deny existence
    of records about alleged satellite capabilities) (Exemptions 1 and 3); Earth
    Pledge Found. v. CIA
    , 988 F. Supp. 623, 627 (S.D.N.Y. 1996) (ruling
    that agency properly refused to confirm or deny existence of correspondence
    between CIA headquarters and alleged CIA station in Dominican Republic,
    because fact of station's existence itself was classified and disclosure
    would reveal agency's intelligence methods and could cause damage to U.S.
    foreign relations), aff'd per curiam, 128 F.3d 788 (2d Cir. 1997);
    Nayed v. INS, No. 91-805, 1993 WL 524541, at *2 (D.D.C. Nov. 29,
    1993) (finding "Glomar" response appropriate for request for records on
    former Libyan national denied entry into United States because "confirmation
    that information exists would . . . be admission of identity
    of CIA intelligence interest . . . [while] denial . .
    .
    would allow interested parties to ascertain [such] interests based
    on their analysis of patterns of CIA answers in different FOIA cases");
    D'Aleo v. Dep't of the Navy, No. 89-2347, 1991 U.S. Dist. LEXIS 3884,
    at **4-5 (D.D.C. Mar. 27, 1991) (holding that any confirmation or denial
    of existence of nondisclosure agreement allegedly signed by plaintiff would
    cause serious damage to national security); Marrera v. United States
    Dep't of Justice
    , 622 F. Supp. 51, 53-54 (D.D.C. 1985) (applying "Glomar"
    response to request for any record which would reveal whether requester
    was target of surveillance pursuant to Foreign Intelligence Surveillance
    Act); see also Exec. Order No. 12,958, as amended, § 3.6(a),
    68 Fed. Reg. 15,315 (Mar. 28, 2003), reprinted in 50 U.S.C.A. § 435
    note (West Supp. 2003) and summarized in FOIA Post (posted
    4/11/03); cf. Minier v. CIA, 88 F.3d 796, 801-02 (9th Cir.
    1996) (finding "neither confirm nor deny" response proper for request seeking
    records on individual's employment relationship with CIA because to reveal
    such information would "provide a window into the [agency's] 'sources and
    methods'") (Exemption 3); Hunt v. CIA, 981 F.2d 1116, 1120 (9th Cir.
    1992) (holding "Glomar" response proper for request for records on murdered
    Iranian national) (Exemption 3); Bassiouni v. CIA, No. 02-C-4049,
    2004 U.S. Dist. LEXIS 5290, at **12-13 (N.D. Ill. Mar. 31, 2004) (allowing
    agency to give "no number, no list" response -- i.e., admission that records
    existed, coupled with refusal to further describe them -- to protect classified
    national security information even though agency previously acknowledged
    existence of records) (appeal pending); Levy v. CIA, No. 95-1276,
    slip op. at 11-14 (D.D.C. Nov. 16, 1995) (finding a "Glomar" response appropriate
    regarding a request for CIA records on a foreign national because "[c]onsistent
    treatment of all requests relating to foreign nationals is a critical
    element to the CIA's protective strategy to safeguard its intelligence sources
    and methods") (Exemption 3), summary affirmance granted, No. 96-5004,
    1997 U.S. App. LEXIS 3164 (D.C. Cir. Jan. 15, 1997).

    68. See, e.g., Pub. Citizen v. Dep't of
    State
    , 276 F.3d 634, 645 (D.C. Cir. 2002) (reaffirming that burden is
    on requester to establish that specific record in public domain duplicates
    that being withheld (citing Afshar v. Dep't of State, 702 F.2d 1125,
    1132 (D.C. Cir. 1983))); Frugone v. CIA, 169 F.3d 772, 774 (D.C.
    Cir. 1999) (finding that disclosure made by employee of agency other than
    agency from which information is sought is not official and thus does not
    constitute waiver).

    69. Afshar, 702 F.2d at 1130; see Assassination
    Archives & Research Ctr. v. CIA
    , 334 F.3d 55, 60 (D.C. Cir. 2003)
    (holding that FOIA plaintiff must show that previous disclosure duplicates
    specificity of withheld material to establish waiver of exemptions, and
    noting that CIA's prior disclosure of some intelligence methods employed
    in Cuba does not waive use of exemptions for all methods); James Madison
    Project v. NARA
    , No. 02-5089, 2002 WL 31296220, at *1 (D.C. Cir. Oct.
    11, 2002) (affirming that the "party claiming that public disclosure prevents
    withholding the same information bears the burden of showing that the specific
    information at issue has been officially disclosed"); Pub. Citizen,
    276 F.3d at 645 (rejecting plaintiff's waiver claim as "speculation" where
    plaintiff failed to demonstrate that specific information had been released
    into public domain, even though records were publicly accessible in NARA
    reading room upon request); Wheeler v. CIA, 271 F. Supp. 2d 132,
    140 (D.D.C. 2003) (rejecting plaintiff's contention that foreign nation's
    knowledge of past intelligence activities creates general waiver of all
    intelligence activities related to that nation); Ctr. for Int'l Envtl.
    Law v. Office of the United States Trade Representative
    , 237 F. Supp.
    2d 17, 20 (D.D.C. 2002) (holding that plaintiff failed to show that information
    was in public domain when it merely pointed to other publically available
    documents dealing with same general subject matter); Billington v. Dep't
    of Justice
    , 11 F. Supp. 2d 45, 54-56 (D.D.C. 1998) (rejecting plaintiff's
    unsubstantiated allegations that agency had previously released subject
    information, and concluding that because FBI "may have released similar
    types of information in one case does not warrant disclosure" in this case),
    summary judgment granted in pertinent part, 69 F. Supp. 2d 128, 135
    (D.D.C. 1999), aff'd in part, vacated in part & remanded all on other
    grounds
    , 233 F.3d 581 (D.C. Cir. 2000) (Exemption 1 decision not challenged
    on appeal); Meeropol v. Reno, No. 75-1121, slip op. at 6-7 (D.D.C.
    Mar. 26, 1998) (ruling that plaintiffs failed to carry "burden of production"
    in asserting withheld information about atomic bomb spies Julius and Ethel
    Rosenberg available in public domain) (Exemptions 1 and 7(D)); Scott
    v. CIA
    , 916 F. Supp. 42, 50 (D.D.C. 1996) (ordering plaintiff to compile
    list of information allegedly in public domain "with specific documentation
    demonstrating the legitimacy of such claims" and requiring release of that
    information if actually in public domain unless government demonstrates
    its release "threatens the national security"); Pfeiffer v. CIA,
    721 F. Supp. 337, 342 (D.D.C. 1989) (holding that plaintiff must do more
    than simply identify "information that happens to find its way into a published
    account" to meet this burden); cf. Davis v. United States Dep't
    of Justice
    , 968 F.2d 1276, 1279 (D.C. Cir. 1992) (stating that a "party
    who asserts . . . material publicly available carries the burden
    of production on that issue . . . because the task of
    proving the negative -- that the information has not been revealed
    -- might require the government to undertake an exhaustive, potentially
    limitless search") (Exemptions 3, 7(C), and 7(D)). But see Wash.
    Post v. DOD
    , 766 F. Supp. 1, 12-13 (D.D.C. 1991) (suggesting that agency
    has ultimate burden of proof when comparing publicly disclosed information
    with information being withheld, determining whether information is identical
    and, if not, determining whether release of slightly different information
    would harm national security).

    70. See Exec. Order No. 12,958, as amended,
    § 1.1(b), 68 Fed. Reg. 15,315 (Mar. 28, 2003) (stating that "[c]lassified
    information shall not be declassified automatically as a result of any unauthorized
    disclosure of identical or similar information"), reprinted in 50
    U.S.C.A. § 435 note (West Supp. 2003) and summarized in FOIA
    Post
    (posted 4/11/03); see also Pub. Citizen v. Dep't of
    State
    , 11 F.3d 198, 201 (D.C. Cir. 1993) (holding that "an agency official
    does not waive FOIA exemption 1 by publicly discussing the general subject
    matter of documents which are otherwise properly exempt from disclosure
    under that exemption") (decided under Executive Order 12,356).

    71. See, e.g., Hoch v. CIA, No. 88-5422,
    1990 WL 102740, at *1 (D.C. Cir. July 20, 1990) (concluding that without
    official confirmation, "clear precedent establishes that courts will not
    compel [an agency] to disclose information even though it has been the subject
    of media reports and speculation"); see also Frugone, 169
    F.3d at 775 (holding that letter from OPM advising plaintiff that his employment
    records were in CIA custody is not "tantamount to an official statement
    of the CIA"); Hunt v. CIA, 981 F.2d 1116, 1120 (9th Cir. 1992) (finding
    that although some information about subject of request may have been made
    public by other governmental agencies, CIA's "Glomar" response in Exemption
    3 context was not defeated); Simmons v. United States Dep't of Justice,
    796 F.2d 709, 712 (4th Cir. 1986) (ruling that there had been no "widespread
    dissemination" of information in question); Abbotts v. NRC, 766 F.2d
    604, 607-08 (D.C. Cir. 1985) (reasoning that even if the withheld data were
    the same as an estimate in the public domain, that is not the same as knowing
    the NRC's official policy as to the "proper level of threat a nuclear
    facility should guard against"); Afshar, 702 F.2d at 1130-31 (observing
    that a foreign government can ignore "[u]nofficial leaks and public surmise
    . . . but official acknowledgment may force a government
    to retaliate"); Philippi v. CIA, 665 F.2d 1325, 1332 (D.C. Cir. 1981)
    (concluding that a disclosure by a former Director of Central Intelligence
    did not result in waiver, and reasoning perceptively that "without the disclosure
    of the documents demanded by [plaintiff], foreign analysts remain in the
    dark as to the provenience of the information appearing in published reports");
    Edmonds v. FBI, 272 F. Supp. 2d 35, 49 (D.D.C. 2003) (holding that
    anonymous leak of information concerning FBI counterterrorism activities
    did not prevent agency from invoking exemption, because disclosures in tandem
    would amount to official confirmation of authenticity); Rubin v. CIA,
    No. 01 CIV 2274, 2001 WL 1537706, at *5 (S.D.N.Y. Dec. 3, 2001) (finding
    that plaintiff's mere showing that some private publication alleged that
    CIA maintained files on subject was not evidence of official disclosure
    and, therefore, that agency's "Glomar" position was not defeated); Nat'l
    Sec. Archive v. CIA
    , No. 99-1160, slip op. at 12-13 (D.D.C. July 31,
    2000) (ruling that Exemption 1 can be waived only through "the stamp of
    truth that accompanies official disclosure," even where requested information
    is otherwise "common knowledge in the public domain," and that "[d]isclosure
    by other agencies of CIA information does not preempt the CIA's ability
    to withhold that information"); Arabian Shield Dev. Co. v. CIA, No.
    3-98-0624, 1999 WL 118796, at *3 n.5 (N.D. Tex. Feb. 26, 1999) (rejecting
    plaintiff's citation to "unspecified public news reports" identifying individuals
    as CIA agents and holding that "public speculation and disclosure .
    . .
    is quite different from official disclosure"), aff'd per
    curiam
    , 208 F.3d 1007 (5th Cir. 2000) (unpublished table decision);
    Steinberg v. United States Dep't of Justice, 801 F. Supp. 800, 802
    (D.D.C. 1992) (recognizing that "[p]assage of time, media reports and informed
    or uninformed speculation based on statements by participants cannot be
    used . . . to undermine [government's] legitimate interest
    in protecting international security [information]"), aff'd in pertinent
    part
    , 23 F.3d 548, 553 (D.C. Cir. 1994); Van Atta v. Def. Intelligence
    Agency
    , No. 87-1508, 1988 WL 73856, at **2-3 (D.D.C. July 6, 1988) (holding
    that disclosure of information to foreign government during diplomatic negotiations
    was not "public disclosure"). But see Lawyers Comm. for Human
    Rights v. INS
    , 721 F. Supp. 552, 569 (S.D.N.Y. 1989) (ruling that Exemption
    1 protection is not available when same documents were disclosed by foreign
    government or when same information was disclosed to media in "off-the-record
    exchanges").

    72. Exec. Order No. 12,958, as amended, § 1.7(d),
    see also White House Memorandum for Heads of Executive Departments
    and Agencies Concerning Safeguarding Information Related to Homeland Security
    (Mar. 19, 2002), reprinted in FOIA Post (posted 3/21/02).

    73. See Hudson River Sloop Clearwater, Inc.
    v. Dep't of the Navy
    , 891 F.2d 414, 421-22 (2d Cir. 1989).

    74. Id. at 422.

    75. Id. at 421; see also Edmonds,
    272 F. Supp. 2d at 49 (declaring that when an agency provides classified
    information to a congressional committee it "does not deprive [itself] of
    the right to classify the information under Exemption 1").

    76. Schlesinger v. CIA, 591 F. Supp. 60, 66
    (D.D.C. 1984); see Pfeiffer v. CIA, 721 F. Supp. at 342; see
    also
    Wash. Post, 766 F. Supp. at 11-12 (finding no "presumption
    of reliability" for facts contained in books subject to prepublication review
    by government agency); cf. McGehee v. Casey, 718 F.2d 1137,
    1141 & n.9 (D.C. Cir. 1983) (determining that CIA cannot reasonably
    bear burden of conducting exhaustive search to prove that particular items
    of classified information have never been published) (non-FOIA case).

    77. Wash. Post Co. v. DOD, No. 84-3400, slip
    op. at 3 (D.D.C. Sept. 22, 1986) (refusing to find official disclosure through
    abandonment of documents in Iranian desert following aborted rescue mission
    or through government's introduction of them into evidence in espionage
    trial).

    78. Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C.
    Cir. 1990); see also Assassination Archives & Research Ctr.,
    334 F.3d at 61 (determining that previous disclosure of information concerning
    Cuban operatives pursuant to John F. Kennedy Assassination Records Collection
    Act, 44 U.S.C. § 2107 note (2000), did not waive exemptions for specific
    CIA compendium of information concerning CIA operatives and intelligence
    assets in Cuba during 1960s); Students Against Genocide v. Dep't of State,
    257 F.3d 828, 835 (D.C. Cir. 2001) (holding that a prior release of photographs
    similar to those withheld did not waive Exemption 1, because the fact that
    "some 'information resides in the public domain does not eliminate the possibility
    that further disclosures can cause harm to [national security]'" (quoting
    Fitzgibbon, 911 F.2d at 766)); Afshar, 702 F.2d at 1130, 1133-34
    (determining that agency review of books written by former agency officials
    does not create official acknowledgment of information or waive applicability
    of FOIA exemptions); Kelly v. CIA, No. 00-2498, slip op. at 10, 12
    (D.D.C. Aug. 8, 2002) (holding that official release of general agency memo
    concerning "agency-academic relations" did not waive Exemption 1 protection
    with regard to specific and detailed agency-academic information (citing
    Fitzgibbon, 911 F.2d at 765-66)), modified on other grounds,
    No. 00-2498, slip op. at 1 (D.D.C. Sept. 25, 2002), appeal on adequacy
    of search dismissed on procedural grounds
    , No. 02-5384, 2003 WL 21804101
    (D.C. Cir. July 31, 2003). But see Nat'l Sec. Archive, No.
    99-1160, slip op. at 15-16 (D.D.C. July 31, 2000) (ordering CIA to disclose
    fact that it kept biographies on seven former East European heads of state
    because "Glomar" response was waived by CIA's 1994 admission that it kept
    biographies on all "heads of state" -- a "clear and narrowly defined term
    that is not subject to multiple interpretations," but noting that CIA's
    "Glomar" response otherwise would have been appropriate); Krikorian v.
    Dep't of State
    , 984 F.2d 461, 467-68 (D.C. Cir. 1993) (remanding to
    district court to determine whether information excised in one document
    "officially acknowledged" by comparing publicly available record with record
    withheld; leaving to district court's discretion whether this could be better
    accomplished by supplemental agency affidavit or by in camera inspection).

    79. Fitzgibbon, 911 F.2d at 765-66.

    80. Id.

    81. See, e.g., Salisbury v. United States,
    690 F.2d 966, 971 (D.C. Cir. 1982) (holding that inclusion of information
    in Senate report "cannot be equated with disclosure by the agency itself");
    Military Audit Project v. Casey, 656 F.2d 724, 744 (D.C. Cir. 1981)
    (finding that publication of Senate report does not constitute official
    release of agency information); see also Earth Pledge Found. v.
    CIA
    , 988 F. Supp. 623, 628 (S.D.N.Y. 1996) (same), aff'd per curiam,
    128 F.3d 788 (2d Cir. 1997).

    82. Pub. Citizen v. Dep't of State, 11 F.3d
    198, 199 (D.C. Cir. 1993).

    83. Pub. Citizen v. Dep't of State, 787 F.
    Supp. 12, 13, 15 (D.D.C. 1992).

    84. Pub. Citizen, 11 F.3d at 201.

    85. Id. at 201-03.

    86. Id. at 203.

    87. Id.

    88. Id.

    89. Id.

    90. 276 F.3d 634 (D.C. Cir. 2002).

    91. Id. at 644-45.

    92. Pub. Citizen v. Dep't of State, 100 F.
    Supp. 2d 10, 29 (D.D.C. 2000).

    93. Id. at 28-29.

    94. Pub. Citizen, 276 F.3d at 645 (quoting
    Afshar, 702 F.2d at 1129).

    95. Id. (quoting Davis v. Dep't of Justice,
    968 F.2d 1276, 1279 (D.C. Cir. 1992). But see also NARA v. Favish,
    124 S. Ct. 1570, 1577, 1582 (2004) (accepting that unofficial leak and subsequent
    publication of photograph did not constitute waiver) (Exemption 7(C)); United
    States Dep't of Justice v. Reporters Comm. for Freedom of the Press
    ,
    489 U.S. 749, 762-63, 780 (1989) (introducing "practical obscurity" standard,
    and noting that if such items of information actually "were 'freely available,'
    there would be no reason to invoke the FOIA to obtain access" to them).

    96. Id.

    97. Levine v. Dep't of Justice, No. 83-1685,
    slip op. at 6 (D.D.C. Mar. 30, 1984) (concluding that regardless of a requester's
    loyalty, the release of documents to him could "open the door to secondary
    disclosure to others").

    98. Martens v. United States Dep't of Commerce,
    No. 88-3334, 1990 U.S. Dist. LEXIS 10351, at *10 (D.D.C. Aug. 6, 1990) (Privacy
    Act case); see also Miller v. Casey, 730 F.2d 773, 778 (D.C.
    Cir. 1984) (accepting that plaintiff's security clearance was not an issue
    in denying access to requested information); cf. United States
    Dep't of Justice v. Reporters Comm. for Freedom of the Press
    , 489 U.S.
    749, 771 (1989) (stating that "the identity of the requester has no bearing
    on the merits of his or her FOIA request") (Exemption 7(C)); FOIA Update,
    Vol. X, No. 2, at 5 (advising that as general rule all FOIA requesters should
    be treated alike).

    99. See Exec. Order No. 12,958, as amended,
    68 Fed. Reg. 15,315 (Mar. 28, 2003), reprinted in 50 U.S.C.A. § 435
    note (West Supp. 2003) and summarized in FOIA Post (posted
    4/11/03).

    100. See generally id.

    101. See Exec. Order No. 12,958, as amended
    (introductory statement also noting that "our Nation's progress depends
    on the free flow of information"); see also Information Security
    Oversight Office Ann. Rep. 6 (2003) (explaining that "what is most notable
    about the new amendment is what did not change with respect to the fundamentals
    that make the security classification system work"); FOIA Post,
    "Executive Order on National Security Classification Amended" (posted
    4/11/03) (discussing amendments to Executive Order 12,958).

    102. Exec. Order No. 12,958, as amended, § 1.1(a)(4);
    see also 32 C.F.R. § 2001.10(c) (2003) (ISOO directive explaining
    that ability of agency classifier to identify and describe damage to national
    security caused by unauthorized disclosure is critical aspect of classification
    system).

    103. Halperin v. CIA, 629 F.2d 144, 149 (D.C.
    Cir. 1980); see Aftergood v. CIA, No. 98-2107, 1999 U.S. Dist.
    LEXIS 18135, at *9 (D.D.C. Nov. 12, 1999) (declaring that "the law does
    not require certainty or a showing of harm" that has already occurred);
    cf. Snepp v. United States, 444 U.S. 507, 513 n.8 (1980) (articulating
    that "[t]he problem is to ensure, in advance, and by proper [CIA prepublication
    review] procedures, that information detrimental to the national interest
    is not published") (non-FOIA case); ACLU v. United States Dep't of Justice,
    265 F. Supp. 2d 20, 30 (D.D.C. 2003) (reiterating that "'[t]he test is not
    whether the court personally agrees in full with the [agency's] evaluation
    of the danger -- rather, the issue is whether on the whole record the Agency's
    judgment objectively survives the test of reasonableness, good faith, specificity,
    and plausibility in this field of foreign intelligence in which the [agency]
    is expert'" (quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir.
    1982))).

    104. Gardels, 689 F.2d at 1106; see also
    Wash. Post v. DOD, 766 F. Supp. 1, 7 (D.D.C. 1991) (observing that
    disclosure of the working files of a failed Iranian hostage rescue attempt
    containing intelligence planning documents would "serve as a model of 'do's
    and don't's'" for future counterterrorist missions "with similar objectives
    and obstacles").

    105. See, e.g., Krikorian v. Dep't of State,
    984 F.2d 461, 465 (D.C. Cir. 1993) (finding that telegram reporting discussion
    between agency official and high-ranking foreign diplomat regarding terrorism
    was properly withheld as foreign government information; release would "jeopardize
    'reciprocal confidentiality'" between governments) (decided under Executive
    Order 12,356); Pinnavaia v. FBI, No. 03-112, slip op. at 8 (D.D.C.
    Feb. 25, 2004) (holding that it was reasonable to classify "sensitive information
    gathered by the United States either about or by a foreign country," because
    the disclosure "could have negative diplomatic consequences"); McErlean
    v. Dep't of Justice
    , No. 97-7831, 1999 WL 791680, at *5 (S.D.N.Y. Sept.
    30, 1999) (protecting identities and information obtained from foreign governments)
    (decided under original version of Executive Order 12,958); Ajluni v.
    FBI
    , No. 94-325, 1996 WL 776996, at *4 (N.D.N.Y. July 13, 1996) (rejecting
    plaintiff's assertion that for withheld information to qualify as foreign
    government information the agency "should be forced to identify at least
    which government supplied the information," because to do so would
    cause such sources of information "to dry up") (decided under Executive
    Order 12,356); Badalementi v. Dep't of State, 899 F. Supp. 542, 546-47
    (D. Kan. 1995) (categorizing record reflecting negotiations among United
    States, Spain, and Italy regarding extradition of alleged drug smuggler
    as foreign government information) (decided under Executive Order 12,356).

    106. See, e.g., Pub. Educ. Ctr., Inc. v.
    DOD
    , 905 F. Supp. 19, 21 (D.D.C. 1995) (identifying videotapes made
    during raid by U.S. forces in Somalia as relating to vulnerabilities or
    capabilities of projects concerning national security) (decided under Executive
    Order 12,356); Gottesdiener v. Secret Serv., No. 86-576, slip op.
    at 5 (D.D.C. Feb. 21, 1989) (determining that agency had properly classified
    certain information related to government emergency-preparedness programs)
    (decided under Executive Order 12,356); cf. U.S. News & World
    Report v. Dep't of the Treasury
    , No. 84-2303, 1986 U.S. Dist. LEXIS
    27634, at *3 (D.D.C. Mar. 26, 1986) (providing protection for information
    regarding armored limousines for the President) (Exemptions 1 and 7(E))
    (decided under Executive Order 12,356).

    107. See, e.g., Schrecker v. United States
    Dep't of Justice
    , 254 F.3d 162, 166 (D.C. Cir. 2001) (protecting intelligence
    sources because release would harm national security by "dissuading current
    and future sources from cooperating"); Jones v. FBI, 41 F.3d 238,
    244 (6th Cir. 1994) (protecting "numerical designators" assigned to national
    security sources) (decided under Executive Order 12,356); Patterson v.
    FBI
    , 893 F.2d 595, 597, 601 (3d Cir. 1990) (protecting information concerning
    intelligence sources and methods FBI used in investigation of student who
    corresponded with 169 foreign nations) (decided under Executive Order 12,356);
    Rubin v. CIA, No. 01-CIV-2274, 2001 WL 1537706, at *3 (S.D.N.Y. Dec.
    3, 2001) (holding that CIA properly refused to confirm or deny existence
    of records concerning two deceased British poets, because "intelligence
    collection may be compromised if sources are not confident that .
    . .
    their cooperation will remain forever secret"); Falwell v.
    Executive Office of the President
    , 158 F. Supp. 2d 734, 738 (W.D. Va.
    2001) (protecting information that could allow "hostile entities to discover
    criteria used for current intelligence and counterintelligence activities
    . . . [and] hamper efforts to protect and recruit intelligence
    sources"); Halpern v. FBI, No. 94-CV-365A, 2002 WL 31012157, at *8
    (W.D.N.Y. Aug. 31, 2001) (magistrate's recommendation) (protecting information
    about covert CIA intelligence stations in foreign country because disclosure
    could harm national security through "retaliation against American citizens
    or other American interests"), adopted (W.D.N.Y. Oct. 12, 2001);
    Cozier v. FBI, No. 99-0312, slip op. at 10-11 (N.D. Ga. Sept. 25,
    2000) (finding that internal codes, numerical designators, and identifiers
    for intelligence gathering units "clearly fall within category of intelligence
    activities, source[s], and methods"); Aranha v. CIA, No. 99-8644,
    2000 WL 1051908, at *1 (S.D.N.Y. July 31, 2000) (finding that confirmation
    of any records concerning plaintiff's alleged employment as CIA case agent
    would "provide information about CIA's intelligence sources and methods");
    Emerson v. CIA, No. 99-00274, slip op. at 5 (D.D.C. May 8, 2000)
    (holding that the "CIA's covert intelligence interest in a specific individual
    represents an intelligence activity, source, and/or method"); Blazy v.
    Tenet
    , 979 F. Supp. 10, 23 (D.D.C. 1997) (finding that former CIA employee's
    polygraphs constitute "intelligence method") (Exemptions 1 and 3) (decided
    under Executive Order 12,356), summary affirmance granted, No. 97-5330,
    1998 WL 315583 (D.C. Cir. May 12, 1998); Allen v. DOD, 658 F. Supp.
    15, 19-21 (D.D.C. 1986) (including deceased, potential, and unwitting intelligence
    sources) (decided under Executive Order 12,356); cf. Schrecker
    v. United States Dep't of Justice
    , 14 F. Supp. 2d 111, 117-18 (D.D.C.
    1998) (observing that identities of intelligence sources are protectible
    pursuant to Exemption 1 regardless of whether individuals are alive or deceased),
    summary judgment granted, 74 F. Supp. 2d 26 (D.D.C. 1999), aff'd,
    254 F.3d 162 (D.C. Cir. 2001).

    108. See McDonnell v. United States,
    4 F.3d 1227, 1244 (3d Cir. 1993) (upholding classification of cryptographic
    information dating back to 1934 when release "could enable hostile entities
    to interpret other, more sensitive documents similarly encoded") (decided
    under Executive Order 12,356); Gilmore v. NSA, No. C92-3646, 1993
    U.S. Dist. LEXIS 7694, at **18-19, 22-23 (N.D. Cal. May 3, 1993) (finding
    mathematical principles and techniques in agency treatise protectible under
    this executive order category) (decided under Executive Order 12,356).

    109. See, e.g., Rubin, No. 01 CIV 2274,
    2001 WL 1537706, at **3-4 (S.D.N.Y. Dec. 3, 2001) (holding that CIA properly
    refused to confirm or deny existence of records concerning two deceased
    British poets, because acknowledgment could negatively impact foreign relations
    and compromise a source); Springmann v. United States Dep't of State,
    No. 93-1238, slip op. at 2-3 (D.D.C. Feb. 24, 2000) (accepting agency's
    judgment that disclosure of information about American employees' religiously
    offensive behavior in Saudi Arabia would adversely affect relations between
    United States and that country) (decided under original version of Executive
    Order 12,958); Linn v. United States Dep't of Justice, No. 92-1406,
    1995 WL 631847, at *26 (D.D.C. Aug. 22, 1995) (finding Exemption 1 withholdings
    proper because the agency demonstrated that it has "a present understanding"
    with the foreign government that any shared information will not be disclosed)
    (decided under Executive Order 12,356); Summers v. United States Dep't
    of Justice
    , No. 89-3300, slip op. at 8-9 (D.D.C. June 13, 1995) (ruling
    that disclosure of names of two foreign agents who visited FBI Director
    "could severely damage the delicate liaison established between the United
    States and this particular foreign government, as well as other governments
    that are similarly situated"), remanded, 140 F.3d 1077, 1082 (D.C.
    Cir. 1998) (remanding to district court because district court failed to
    articulate whether it was applying Executive Order 12,356 or Executive Order
    12,958 to evaluate Exemption 1 withholdings, even though district court
    record made it clear), on remand, No. 87-3168, slip op. at 2 (D.D.C.
    Apr. 19, 2000) (applying original version of Executive Order 12,958 to uphold
    Exemption 1 withholdings); United States Comm. for Refugees v. Dep't
    of State
    , No. 91-3303, 1993 WL 364674, at *2 (D.D.C. Aug. 30, 1993)
    (holding that disclosure of withheld information could damage nation's foreign
    policy by jeopardizing success of negotiations with Haiti on refugee issues
    "[because] documents contain . . . frank assessments about
    the Haitian government") (decided under Executive Order 12,356); St.
    Hilaire v. Dep't of Justice
    , No. 91-0078, 1992 WL 73545, at *4 (D.D.C.
    Mar. 18, 1992) (protecting portions of two cables between Department of
    State and its embassies because "[p]rotecting communications between .
    . .
    diplomatic instruments of sovereign states certainly is an appropriate
    reason for classifying documents") (decided under Executive Order 12,356),
    aff'd, No. 92-5153 (D.C. Cir. Apr. 28, 1994); Van Atta v. Def.
    Intelligence Agency
    , No. 87-1508, 1988 WL 73856, at *2 (D.D.C. July
    6, 1988) (protecting information compiled at request of foreign government
    for purpose of negotiations) (decided under Executive Order 12,356). But
    see
    Keenan v. Dep't of Justice, No. 94-1909, slip op. at 9-11
    (D.D.C. Dec. 16, 1997) (ordering release of document segments withheld by
    the agency pursuant to Exemption 1, because the agency failed to show that
    the foreign governments named in documents more than thirty years old "still
    wish to maintain the secrecy of their cooperative efforts with" U.S.).

    110. See, e.g., Taylor v. Dep't of the
    Army
    , 684 F.2d 99, 109 (D.C. Cir. 1982) (protecting combat-ready troop
    assessments) (decided under Executive Order 12,065); Tawalbeh v. United
    States Dep't of the Air Force
    , No. 96-6241, slip op. at 10-11 (C.D.
    Cal. Aug. 8, 1997) (protecting information about military readiness and
    operational security related to operations Desert Shield and Desert Storm)
    (decided under original version of Executive Order 12,958); Pub. Educ.
    Ctr.
    , 905 F. Supp. at 21 (protecting videotapes made during U.S. military
    action in Somalia) (decided under Executive Order 12,356); Wash. Post
    Co. v. DOD
    , No. 84-2403, slip op. at 3 (D.D.C. Apr. 15, 1988) (protecting
    foreign military information) (decided under Executive Order 12,356); Hudson
    River Sloop Clearwater, Inc. v. Dep't of the Navy
    , 891 F.2d 414, 417
    (2d Cir. 1989) (concluding that refusal to confirm or deny presence of nuclear
    weapons aboard warships in homeports under the FOIA does not conflict with
    requirements of National Environmental Policy Act of 1969, 42 U.S.C. § 4321
    (2000), that agencies consider environmental impact) (decided under Executive
    Order 12,356).

    111. See Exec. Order No. 12,958, as amended,
    § 1.4(e).

    112. See id. § 1.4(f); see, e.g.,
    Weinberger v. Catholic Action of Haw., 454 U.S. 139, 144-45 (1981)
    (protecting "information relating to the storage of nuclear weapons"); Abbots
    v. NRC
    , 766 F.2d 604, 607 (D.C. Cir. 1985) (protecting "the NRC's determination
    as to the number of attackers a nuclear facility should be able to defend
    against successfully," because release of this information would allow potential
    attackers to "compute the size of the assault force needed for optimum results")
    (decided under Executive Order 12,356); Loomis v. United States Dep't
    of Energy
    , No. 96-149, 1999 WL 33541935, at *6 (N.D.N.Y. Mar. 9, 1999)
    (protecting nuclear containment layout plan and referenced document on propagation
    of radiological requirements and procedures) (decided under original version
    of Executive Order 12,958), summary affirmance granted, 21 Fed. Appx.
    80 (2d Cir. 2001).

    113. See Exec. Order No. 12,958, as amended,
    § 1.4(h); see also White House Memorandum for Heads of Executive
    Departments and Agencies Concerning Safeguarding Information Related to
    Homeland Security [hereinafter White House Homeland Security Memorandum]
    (Mar. 19, 2002), reprinted in FOIA Post (posted 3/21/02)
    (emphasizing "obligation to safeguard" homeland security-related records).

    114. See Exec. Order No. 12,958, as amended,
    § 1.4(e), (g); see also id. § 1.1(a)(4) (incorporating "defense
    against transnational terrorism" into classification standards).

    115. See Exec. Order No. 12,958, § 1.5, 3
    C.F.R. 333 (1996), reprinted in 50 U.S.C. § 435 note (2000) and
    reprinted in abridged form in
    FOIA Update, Vol. XVI, No. 2, at
    5-10.

    116. See Exec. Order No. 12,958, as amended,
    § 1.1(c).

    117. Compare Steinberg v. United States
    Dep't of Justice
    , 179 F.R.D. 357, 362-63 (D.D.C. 1998) (ordering FBI
    to submit further evidence to support confidentiality claim), with
    Billington v. Dep't of Justice, 11 F. Supp. 2d 45, 54-56 (D.D.C.
    1998) (finding agency not required to demonstrate explicit confidentiality
    understanding), summary judgment granted in pertinent part, 69 F.
    Supp. 2d 128 (D.D.C. 1999), aff'd in part, vacated in part & remanded
    all on other grounds
    , 233 F.3d 581 (D.C. Cir. 2000) (Exemption 1 decision
    not challenged on appeal).

    118. Steinberg, 179 F.R.D. at 362-63.

    119. See United States Dep't of Justice
    v. Landano
    , 508 U.S. 165, 179 (1993) (requiring law enforcement agencies
    to demonstrate confidentiality basis for protecting law enforcement informants).

    120. Steinberg, 179 F.R.D. at 362.

    121. Exec. Order No. 12,356, § 1.3(c), 3 C.F.R. 166
    (1983), excerpted in FOIA Update, Vol. III, No. 3, at 6.

    122. Steinberg, 179 F.R.D. at 368-69.

    123. See Billington, 11 F. Supp. 2d
    at 57-58.

    124. Id.

    125. Id. at 57.

    126. Id.

    127. Exec. Order No. 12,958, as amended, § 1.7.

    128. Id. § 1.7(a)(1); see also Billington,
    11 F. Supp. 2d at 57-58 (dismissing plaintiff's "unsubstantiated accusations"
    that information should be disclosed because FBI engaged in illegal "dirty
    tricks" campaign); Computer Prof'ls for Soc. Responsibility v. Nat'l
    Inst. of Standards & Tech.
    , No. 92-0972, slip op. at 1-2 (D.D.C.
    Apr. 11, 1994) (finding no basis to conclude that NSA improperly classified
    computer security guidelines in violation of law to "conceal its role" in
    developing such guidelines) (decided under Executive Order 12,356), summary
    affirmance granted
    , No. 94-5153, 1995 WL 66803, at *1 (D.C. Cir. Jan.
    13, 1995); cf. NARA v. Favish, 124 S. Ct. 1570, 1577, 1582
    (2004) (reminding that "[a]llegations of government misconduct are 'easy
    to allege and hard to disprove'" (quoting Crawford-El v. Britton,
    523 U.S. 574, 585 (1998))) (Exemption 7(C)).

    129. Exec. Order No. 12,958, as amended, § 1.7(a)(2);
    see also Billington, 11 F. Supp. 2d at 58-59 (rejecting plaintiff's
    argument that information was classified by FBI to shield agency and foreign
    government from embarrassment); Canning v. United States Dep't of Justice,
    848 F. Supp. 1037, 1047-48 (D.D.C. 1994) (finding no credible evidence that
    the FBI improperly withheld information to conceal the existence of "potentially
    inappropriate investigation" of a French citizen, and noting that "if anything,
    the agency released sufficient information to facilitate such speculation")
    (decided under Executive Order 12,356); Wilson v. Dep't of Justice,
    No. 87-2415, 1991 WL 111457, at *2 (D.D.C. June 13, 1991) (rejecting requester's
    unsupported claim that information at issue was classified in order to prevent
    embarrassment to foreign government official, and holding that "even if
    some . . . information . . . were embarrassing
    to Egyptian officials, it would nonetheless be covered by Exemption 1 if,
    independent of any desire to avoid embarrassment, the information withheld
    [was] properly classified") (decided under Executive Order 12,356).

    130. Exec. Order No. 12,958, as amended, § 1.7(a)(3).

    131. Id. § 1.7(a)(4).

    132. Id. § 1.7(b); see also White House
    Homeland Security Memorandum, reprinted in FOIA Post (posted
    3/21/02) (directing agencies to review procedures for safeguarding information
    concerning "chemical, biological, radiological, and nuclear weapons).

    133. Compare Exec. Order No. 12,958, as amended,
    § 1.1 (current version), with Exec. Order No. 12,958, § 1.2(b) (original
    version).

    134. See Exec. Order No. 12,958, as amended,
    § 1.7(c); see also Exec. Order No. 12,356, § 1.6(c).

    135. Exec. Order No. 12,958, as amended, § 1.7(c)(1);
    see also 32 C.F.R. § 2001.13(a) (2003) (directive issued by Information
    Security Oversight Office describing procedures for reclassifying information
    pursuant to section 1.7(c) of Executive Order 12,958, as amended).

    136. Exec. Order 12,958, as amended, § 1.7(c)(2);
    see also 32 C.F.R. § 2001.13(a)(1).

    137. Exec. Order 12,958, as amended, § 1.7(c)(3);
    see also 32 C.F.R. § 2001.13(b).

    138. Exec. Order No. 12,958, as amended, § 1.7(d);
    see also 32 C.F.R. § 2001.13(a); see, e.g., Pub. Citizen
    v. Dep't of State
    , 100 F. Supp. 2d 10, 26 (D.D.C. 2000) (finding that
    agency official had "power to classify documents" following receipt of FOIA
    request) (decided under original version of Executive Order 12,958), aff'd
    on other grounds
    , 276 F.3d 674 (D.C. Cir. 2002); Council for a Livable
    World v. United States Dep't of State
    , No. 96-1807, slip op. at 8-9
    (D.D.C. Nov. 23, 1998) (ordering disclosure of documents where agency official
    did not have special classification authority under section 1.8(d) of Executive
    Order 12,958 and did not take classification action under direction of official
    with such authority) (decided under original version of Executive Order
    12,958), summary judgment granted (D.D.C. June 27, 2000), case
    dismissed
    (D.D.C. Aug. 22, 2000) (upholding Exemption 1 claim and dismissing
    case following classification of records by different agency official with
    proper authority and subsequent submission of further declaration); see
    also
    White House Homeland Security Memorandum, reprinted in FOIA
    Post
    (posted 3/21/02) (directing heads of federal departments and agencies
    to ensure appropriate protection of sensitive homeland security-related
    information; distributing implementing guidance, in attached memorandum
    from Information Security Oversight Office and Office of Information and
    Privacy, to effect that such information should be classified or reclassified
    pursuant to requirements of section 1.8(d) (now 1.7(d)) of Executive Order
    12,958, as appropriate, if it has been subject of prior access request).

    139. Exec. Order No. 12,958, as amended, § 1.8.

    140. Id. § 1.8(a).

    141. See id. § 1.8(b); see also
    id. § 5.3(b) (authorizing Interagency Security Classification Appeals
    Panel to "decide on [sic] appeals by persons who have filed classification
    challenges"); 32 C.F.R. § 2001.14 (2003) (directive issued by Information
    Security Oversight Office describing procedures that agencies must establish
    in order to consider classification challenges).

    142. See Exec. Order No. 12,958, as amended,
    § 4.2(b) (providing that an emergency disclosure does not constitute declassification);
    see also 32 C.F.R. § 2001.51 (2003) (describing transmission and
    reporting procedures for disclosure "in emergency situations, in which there
    is an imminent threat to life or in defense of the homeland").

    143. See, e.g., Assassination Archives
    & Research Ctr. v. CIA
    , 177 F. Supp. 2d 1, 8 (D.D.C. 2001) (finding
    that CIA properly classified subject records under procedures outlined in
    Executive Order 10,501, which was in force when classification decision
    was made), aff'd, 334 F.2d 55 (D.C. Cir. 2003); Tawalbeh,
    No. 96-6241, slip op. at 9 (C.D. Cal. Aug. 8, 1997) (noting that classification
    procedures set forth in Executive Order 12,958 properly applied); Canning,
    848 F. Supp. at 1048-49 (finding that agency adhered to appropriate classification
    procedures established by Executive Order 12,356).

    144. See, e.g., Exec. Order No. 12,958, as
    amended, §§ 1.5, 1.6, 2.1; see also 32 C.F.R. § 2001.20-.24.

    145. See Exec. Order No. 12,958, as amended,
    § 1.6; see also Cohen v. FBI, No. 93-1701, slip op. at 5-6
    (D.D.C. Oct. 11, 1994) (rejecting plaintiff's argument that subsequent marking
    of two documents during agency's second classification review rendered FBI's
    classification action ineffective; to require agencies "to perform every
    classification review perfectly on the first attempt" would be "a very strict
    and unforgiving standard") (decided under Executive Order 12,356).

    146. See Exec. Order No. 12,958, as amended,
    § 1.3; see, e.g., Presidential Order of Sept. 17, 2003, 68 Fed. Reg.
    55,257 (Sept. 17, 2003), reprinted in 50 U.S.C.A. § 435 note (West
    Supp. 2003) (granting classification authority to Director of Office of
    Science and Technology Policy); Exec. Order No. 13,284, § 20, 68 Fed. Reg.
    4075 (Jan. 23, 2003) (granting classification authority to Secretary of
    Homeland Security); Presidential Order of Sept. 26, 2002, 67 Fed. Reg. 61,463
    (Sept. 26, 2002), reprinted in 50 U.S.C.A. § 435 note (West Supp.
    2003) (granting classification authority to Secretary of Agriculture); Presidential
    Order of May 6, 2002, 67 Fed. Reg. 31,109 (May 6, 2002), reprinted in
    50 U.S.C.A. § 435 note (West Supp. 2003) (granting classification authority
    to Administrator of Environmental Protection Agency); Presidential Order
    of Dec. 10, 2001, 66 Fed. Reg. 64,347 (Dec. 10, 2001), reprinted in
    50 U.S.C.A. § 435 note (West Supp. 2003) (granting classification authority
    to Secretary of Health and Human Services); Presidential Order of Oct. 13,
    1995, 3 C.F.R. 513 (1996), reprinted in 50 U.S.C. § 435 note (2000)
    (designating those executive branch officials who are authorized to classify
    national security information under Executive Order 12,958 in first instance).

    147. See Exec. Order No. 12,958, as amended,
    § 1.6(a)(1); see also id. § 1.2 (directing that information
    may be classified at: (1) the "Top Secret" level, when disclosure could
    be expected to cause "exceptionally grave damage" to the national security;
    (2) the "Secret" level, when disclosure could be expected to cause "serious
    damage" to the national security; and (3) the "Confidential" level, when
    disclosure could be expected to cause "damage" to the national security).

    148. Id. § 1.6(a)(2).

    149. Id. § 1.6(a)(3).

    150. Id. § 1.6(a)(5).

    151. Id. § 1.6(a)(4).

    152. Id. § 1.6(c) (specifying that only Director
    of ISOO is authorized to grant portion-marking waivers).

    153. Id. § 1.6(g).

    154. See 32 C.F.R. § 2001.20-.24 (2003) (ISOO
    directive providing detailed guidance on identification and marking requirements
    of amended Executive Order 12,958).

    155. See Exec. Order No. 12,958, as amended,
    § 5.3(a)(1); see also 32 C.F.R. pt. 2001 app. A (2003) (bylaws of
    Interagency Security Classification Appeals Panel); see also FOIA
    Post
    , "FOIA Officers Conference Held on Homeland Security" (posted
    7/3/03) (referring to Chairman of Interagency Security Classification Appeals
    Panel).

    156. See Exec. Order No. 12,958, as amended,
    § 5.3(b); see also id. § 3.5 (establishing mandatory declassification
    review program as non-FOIA mechanism for persons to seek access to classified
    information generated or maintained by agencies, including papers maintained
    by presidential libraries not accessible under FOIA).

    157. See id. § 5.2; see also
    FOIA Update, Vol. XVI, No. 2, at 15 (describing responsibilities
    of ISOO Director under original version of Executive Order 12,958); FOIA
    Update
    , Vol. VI, No. 1, at 1-2 (describing responsibilities of ISOO
    under Executive Order 12,356).

    158. Exec. Order No. 12,958, as amended, § 1.5, 68
    Fed. Reg. 15,315 (Mar. 28, 2003), reprinted in 50 U.S.C.A. § 435
    note (West Supp. 2003) and summarized in FOIA Post (posted
    4/11/03).

    159. See id. § 3.3.

    160. Id. § 1.5(a).

    161. See id.; see also 32 C.F.R.
    § 2001.12(a)(1) (2003) (establishing guidelines for the duration of the
    classification, and requiring that a "classification authority shall attempt
    to determine a date or event that is less than ten years from the date of
    the original classification and which coincides with the lapse of the information's
    national security sensitivity"); Information Security Oversight Office Ann.
    Rep. 6 (2003) (noting that "one of the principal procedures for maintaining
    the effectiveness of the classification system is to remove from the safeguarding
    system information that no longer requires protection").

    162. Exec. Order No. 12,958, as amended, § 1.5(b);
    see also 32 C.F.R. § 2001.12(a)(1).

    163. Exec. Order No. 12,958, as amended, § 1.5(b).

    164. Compare Exec. Order No. 12,958, as amended,
    § 3.3 (current version), with Exec. Order No. 12,958, § 3.4 (original
    version).

    165. Exec. Order No. 12,958, as amended, § 3.3(a)
    (applying twenty-five-year rule to classified information determined by
    Archivist of the United States to have "permanent historical value"); see
    also
    32 C.F.R. § 2001.30 (2003) (Information Security Oversight Office
    directive explaining requirements of automatic declassification program).

    166. Exec. Order No. 12,958, as amended, § 3.3(b)
    (specifying categories of sensitive information qualifying for exception
    to twenty-five-year rule -- including, for example, information that would
    reveal identity of confidential human source, disclose U.S. military war
    plans still in effect, reveal information that would assist in development
    or use of weapons of mass destruction, or violate statute or treaty); see
    also
    id. § 3.3(c), (d) (specifying manner in which agencies
    are to notify President of, and receive approval for, exceptions to automatic
    declassification for specific file series); White House Homeland Security
    Memorandum (directing heads of federal departments and agencies to ensure
    appropriate protection of sensitive homeland security-related information;
    distributing implementing guidance, in attached memorandum, to effect that
    such information should be exempted from automatic declassification).

    167. Compare Exec. Order No. 12,958, § 3.4(a)
    (mandating automatic declassification for twenty-five-year-old information),
    with Exec. Order No. 12,356, § 3.1(a) (specifying that passage
    of time alone does not compel declassification); see also Exec. Order
    No. 12,936, 3 C.F.R. 949 (1994) (separate executive order issued by President
    Clinton automatically declassifying millions of pages of old records held
    by NARA). But see 50 U.S.C. § 435 note (2000) (requiring Secretary
    of Energy and Archivist of the United States to ensure that information
    concerning atomic weapons and special nuclear material is not inadvertently
    released during automatic declassification of voluminous records under original
    version of Executive Order 12,958).

    168. Exec. Order No. 13,142, § 1, 64 Fed. Reg. 66089
    (1999) (extending automatic declassification deadline to October 17, 2001).

    169. See id. § 2 (specifying that April
    17, 2003, deadline pertains to "records otherwise subject to this paragraph
    for which a review or assessment conducted by the agency and confirmed by
    the Information Security Oversight Office has determined that they: (1)
    contain information that as created by or is under the control of more than
    one agency, or (2) are within file series containing information that almost
    invariably pertains to intelligence sources or methods").

    170. Exec. Order No. 12,958, as amended, § 3.3(a).

    171. Id.

    172. See Schrecker v. United States Dep't
    of Justice
    , 74 F. Supp. 2d 26, 30 (D.D.C. 1999), aff'd on other grounds,
    254 F.3d 162 (D.C. Cir. 2001); Billington v. Dep't of Justice, 69
    F. Supp. 2d 128, 134 (D.D.C. 1999), aff'd in part, vacated in part &
    remanded all on other grounds
    , 233 F.3d 581 (D.C. Cir. 2000) (Exemption
    1 determination not challenged on appeal); Hall v. United States Dep't
    of Justice
    , 26 F. Supp. 2d 78, 80 (D.D.C. 1998).

    173. See Exec. Order No. 12,958, as amended,
    § 3.3(a).

    174. See id. § 3.7 (directing Archivist
    to establish database of information that has been declassified by agencies,
    and instructing agency heads to cooperate in this governmentwide effort).

    175. Id. § 3.4(a).

    176. Id. § 3.5.

    177. See id.

    178. See id.

    179. Id.; cf. Miller v. Casey,
    730 F.2d 773, 778 (D.C. Cir. 1984) (refusing to review CIA decision to deny
    access to records under agency's discretionary "historical research program").

    180. See Exec. Order No. 12,958, as amended,
    § 3.5(b)(4), (d).

    181. Id. § 3.5(a)(3).

    182. Id. § 3.1(b).

    183. See FOIA Update, Vol. XVI, No.
    2, at 11 (chart comparing provisions of original version of Executive Order
    12,958 with those of predecessor Executive Order 12,356).

    184. See, e.g., ACLU v. United States Dep't
    of Justice
    , 265 F. Supp. 2d 20, 32 (D.D.C. 2003) (holding that even
    a "significant and entirely legitimate" public desire to view classified
    information "simply does not, in an Exemption 1 case, alter the analysis");
    Kelly v. CIA, No. 00-2498, slip op. at 15 (D.D.C. Aug. 8, 2002) (observing
    that agency should factor in public interest at time that classification
    decision is made, and further noting that requester's asserted public interest
    in disclosure of requested information will not undermine proper classification
    because it certainly is in public interest to withhold information that
    would damage national security), modified in other respects, No.
    00-2498, slip op. at 1 (D.D.C. Sept. 25, 2002), appeal on adequacy of
    search dismissed on procedural grounds
    , No. 02-5384, 2003 WL 21804101
    (D.C. Cir. July 31, 2003).

    185. Exec. Order No. 12,958, as amended, § 3.6(a),
    68 Fed. Reg. 15,315 (Mar. 28, 2003), reprinted in 50 U.S.C.A. § 435
    note (West Supp. 2003) and summarized in FOIA Post (posted
    4/11/03); see also Hogan v. Huff, No. 00-6753, 2002 WL 1359722,
    at *7 (S.D.N.Y. June, 21, 2002) (ruling that the executive order "authorizes
    agencies to refuse to confirm or deny the existence or non-existence of
    requested information whenever the fact of its existence is itself classified")
    (decided under original version of Executive Order 12,958).

    186. See Exec. Order No. 12,958, as amended,
    § 1.7(e).

    187. Id.; see also Billington v.
    Dep't of Justice
    , 11 F. Supp. 2d 45, 55 (D.D.C. 1998) (applying cited
    provision of executive order to rule that "aggregate result" does not need
    to be "self-evident" to qualify for Exemption 1 protection), summary
    judgment granted in pertinent part
    , 69 F. Supp. 2d 128 (D.D.C. 1999),
    aff'd in part, vacated in part & remanded all on other grounds,
    233 F.3d 581 (D.C. Cir. 2000).

    188. Halperin v. CIA, 629 F.2d 144, 150 (D.C.
    Cir. 1980) (observing that "[e]ach individual piece of intelligence information,
    much like a piece of a jigsaw puzzle, may aid in piecing together other
    bits of information even when the individual piece is not of obvious importance
    in itself").

    189. See Salisbury v. United States,
    690 F.2d 966, 971 (D.C. Cir. 1982) (explicitly acknowledging "mosaic-like
    nature of intelligence gathering") (decided under Executive Order 12,065);
    Edmonds v. FBI, 272 F. Supp. 2d 35, 47-48 (D.D.C. 2003) (accepting
    that "some information required classification because it was intertwined
    with the sensitive matters at the heart of the case" and "would tend to
    reveal matters of national security even though the sensitivity of the information
    may not be readily apparent in isolation") (decided under original version
    of Executive Order 12,958); ACLU v. United States Dep't of Justice,
    265 F. Supp. 2d 20, 29 (D.D.C. 2003) (allowing agency to withhold statistical
    intelligence-collection data, noting that "even aggregate data is revealing,"
    and concluding that disclosure "could permit hostile governments to accurately
    evaluate the FBI's counterintelligence capabilities") (decided under original
    version of Executive Order 12,958); Loomis v. United States Dep't of
    Energy
    , No. 96-149, 1999 WL 33541935, at *7 (N.D.N.Y. Mar. 9, 1999)
    (finding that safety measures regarding nuclear facilities set forth in
    manuals and lay-out plans contain highly technical information and that
    "such information in the aggregate could reveal sensitive aspects of operations")
    (decided under original version of Executive Order 12,958), summary affirmance
    granted
    , 21 Fed. Appx. 80 (2d Cir. 2001); see also Am. Friends
    Serv. Comm. v. DOD
    , 831 F.2d 441, 444-45 (3d Cir. 1987) (recognizing
    validity of "compilation" theory, and ruling that certain "information harmless
    in itself might be harmful when disclosed in context") (decided under Executive
    Order 12,356); Taylor v. Dep't of the Army, 684 F.2d 99, 105 (D.C.
    Cir. 1982) (upholding classification of compilation of information on army
    combat units) (decided under Executive Order 12,065); Nat'l Sec. Archive
    v. FBI
    , 759 F. Supp. 872, 877 (D.D.C. 1991) (adjudging that disclosure
    of code names and designator phrases could provide hostile intelligence
    analyst with "common denominator" permitting analyst to piece together seemingly
    unrelated data into snapshot of specific FBI counterintelligence activity)
    (decided under Executive Order 12,356); Jan-Xin Zang v. FBI, 756
    F. Supp. 705, 709-10 (W.D.N.Y. 1991) (upholding classification of any particular
    source-identifying word or phrase that could by itself or in aggregate lead
    to disclosure of intelligence source) (decided under Executive Order 12,356);
    cf. CIA v. Sims, 471 U.S. 159, 178 (1985) (recognizing that
    "the very nature of the intelligence apparatus of any country is to try
    to find out the concerns of others," and reasoning that "[w]hat may seem
    trivial to the uninformed, may appear of great moment to one who has a broad
    view of the scene and may put the questioned item of information in its
    proper context") (Exemption 3).

    190. Abbotts v. NRC, 766 F.2d 604, 608 (D.C.
    Cir. 1985) (quoting Afshar v. Dep't of State, 702 F.2d 1125, 1130
    (D.C. Cir. 1983))) (decided under Executive Order 12,356).

    191. See, e.g., Doherty v. United States
    Dep't of Justice
    , 775 F.2d 49, 53 (2d Cir. 1985); Paisley v. CIA,
    712 F.2d 686, 700 (D.C. Cir. 1983); Edmonds, 272 F. Supp. 2d at 57
    (holding that agency may properly determine that release of any portion
    of document would result in harm to national security and on that basis
    classify entire document); Armstrong v. Executive Office of the President,
    897 F. Supp. 10, 17 (D.D.C. 1995) (finding that Vaughn Index and
    supporting affidavits demonstrate that limited number of country captions
    and source citations contained in intelligence summaries are so "inextricably
    intertwined" with text of summaries as to be exempt from disclosure); Bevis
    v. Dep't of the Army
    , No. 87-1893, slip op. at 2 (D.D.C. Sept. 16, 1988)
    (ruling that redaction is not required when it would reduce balance of text
    to "unintelligible gibberish"); Am. Friends Serv. Comm. v. DOD, No.
    83-4916, 1988 WL 82852, at *4 (E.D. Pa. Aug. 4, 1988) (holding that very
    fact that records sought would have to be extensively "reformulated, re-worked
    and shuffled" prior to any disclosure thus in and of itself established
    that nonexempt material was "inextricably intertwined" with exempt material),
    aff'd, 869 F.2d 587 (3d Cir. 1989) (unpublished table decision).

    192. 5 U.S.C. § 552(b) (2000) (sentence immediately
    following exemptions).

    193. See, e.g., Oglesby v. United States
    Dep't of the Army
    , 920 F.2d 57, 66 n.12 (D.C. Cir. 1990) (dictum) (noting
    failure of Army affidavit to specify whether any reasonably segregable portions
    of 483-page document were withheld pursuant to Exemption 1); Ray v. Turner,
    587 F.2d 1187, 1197 (D.C. Cir. 1978) (remanding for greater specificity
    in affidavit because agency may not rely on "exemption by document" approach
    even in Exemption 1 context); see also Harper v. DOD, No.
    93-35876, 1995 WL 392032, at *2 (9th Cir. July 3, 1995) (reversing part
    of district court order that permitted agency to withhold entire report
    under Exemption 1, because district court failed to make "necessary findings"
    on segregability).

    194. See Trans-Pac. Policing Agreement
    v. United States Customs Serv.
    , 177 F.3d 1022, 1028 (D.C. Cir. 1999);
    Kimberlin v. Dep't of Justice, 139 F.3d 944, 950 (D.C. Cir. 1998);
    Army Times Publ'g Co. v. Dep't of the Air Force, 998 F.2d 1067, 1068,
    1071-72 (D.C. Cir. 1993); PHE, Inc. v. Dep't of Justice, 983 F.2d
    248, 252-53 (D.C. Cir. 1993); Schiller v. NLRB, 965 F.2d 1205, 1210
    (D.C. Cir. 1992).

    195. See Oglesby v. United States Dep't
    of the Army
    , 79 F.3d 1172, 1180-81 (D.C. Cir. 1996); Krikorian v.
    Dep't of State
    , 984 F.2d 461, 466-67 (D.C. Cir. 1993); see also
    Canning v. United States Dep't of Justice, 848 F. Supp. 1037, 1049
    n.2 (D.D.C. 1994) (applying Krikorian standard to specifically find
    that agency "carefully and methodically . . . respect[ed FOIA's
    segregation] principle"); Bay Area Lawyers Alliance for Nuclear Arms
    Control v. Dep't of State
    , No. C89-1843, slip op. at 7-8, 11-12 (N.D.
    Cal. June 4, 1993) (applying same standard).

    196. Krikorian, 984 F.2d at 467; see also
    Greenberg v. United States Dep't of Treasury, 10 F. Supp. 2d 3, 14-15
    (D.D.C. 1998) (ordering that CIA "more specifically" explain in subsequent
    Vaughn Index why portions of records withheld in full are not reasonably
    segregable); FOIA Update, Vol. XIV, No. 3, at 11-12 ("OIP Guidance:
    The 'Reasonable Segregation' Obligation").

    197. Oglesby, 79 F.3d at 1181.

    198. Id.

    199. 5 U.S.C. § 552(c)(3).

    200. Id.; see also Attorney General's
    Memorandum on the 1986 Amendments to the Freedom of Information Act

    24-25 (Dec. 1987).

    201. See FOIA Post, "Homeland
    Security Law Contains New Exemption 3 Statute" (posted 1/27/03); FOIA
    Post
    , "Guidance on Homeland Security Information Issued" (posted 3/21/02);
    see also FOIA Post, "Annual Report Guidance for DHS-Related
    Agencies" (posted 8/8/03).

    202. See Homeland Security Act of 2002, Pub.
    L. 107-296, 116 Stat. 2135; see also Homeland Security Act Amendments
    of 2003, Pub. L. 108-7, 117 Stat. 526.

    203. See Exec. Order No. 13,228, § 5, 66 Fed.
    Reg. 51812 (Oct. 8, 2001) (creating the Homeland Security Council).

    204. See FOIA Post, "Critical Infrastructure
    Regulations Issued by DHS" (posted 2/27/04); FOIA Post, "FOIA Officers
    Conference Held on Homeland Security" (posted 7/3/03); FOIA Post,
    "Homeland Security Law Contains New Exemption 3 Statute" (posted 1/27/03).

    205. See id.; see also Information
    Security Oversight Office Ann. Rep. 6 (2003) (cautioning that "if we are
    not attentive, the demands of war can distract is from doing what is necessary
    today to ensure the continued efficacy of the security classification system");
    FOIA Post, "Guidance on Homeland Security Information Issued" (posted
    3/21/02).

    206. See Attorney General's Memorandum for
    Heads of All Federal Departments and Agencies Regarding the Freedom of Information
    Act (Oct. 12, 2001), reprinted in FOIA Post (posted 10/15/01)
    (reminding agencies of importance of "safeguarding our national security"
    in FOIA decisionmaking).

    207. See White House Memorandum for Heads
    of Executive Departments and Agencies Concerning Safeguarding Information
    Related to Homeland Security [hereinafter White House Homeland Security
    Memorandum] (Mar. 19, 2002), reprinted in FOIA Post (posted
    3/21/02).

    208. See Memorandum from Acting Director of
    Information Security Oversight Office and Co-Directors of Office of Information
    and Privacy to Departments and Agencies [hereinafter ISOO/OIP Homeland Security
    Memorandum], reprinted in FOIA Post (posted 3/21/02) (citing
    Attorney General Ashcroft's FOIA Memorandum).

    209. See ISOO/OIP Homeland Security Memorandum
    (referring to sections 1.5, 1.6, and 3.4(b)(2) of original version of Executive
    Order 12,958 (authorizing information concerning weapons of mass destruction
    to be exempted from automatic declassification)).

    210. See id. (referring to sections
    1.6(d)(2) and 3.4(b)(2) of original version of Executive Order 12,958).

    211. See id.

    212. See id. (explaining that initial
    classification or reclassification should be undertaken in accordance with
    Executive Order 12,958).

    213. See id.; Exec. Order No. 12,958,
    §§ 1.8(d); see also 42 U.S.C. § 2162 (2000) (governing classification
    of information concerning atomic weapons and other special nuclear material).

    214. FOIA Post, "Critical Infrastructure
    Information Regulations Issued by DHS" (posted 2/27/04) (describing Department
    of Homeland Security report to Congress of February 20, 2004, which addresses
    development of policy and governmentwide procedures for handling "sensitive
    homeland security information"); see also FOIA Post, "FOIA
    Officers Conference Held on Homeland Security" (posted 7/3/03) (discussing
    Department of Justice FOIA officers conference concerning homeland security-related
    FOIA issues).

    215. White House Homeland Security Memorandum, reprinted
    in
    FOIA Post (posted 3/21/02); see also ISOO/OIP Homeland
    Security Memorandum, reprinted in FOIA Post (posted 3/21/02).

    216. 6 U.S.C.A. § 131(3) (West Supp. 2004) (defining
    "critical infrastructure information"); see also FOIA Post,
    "Critical Infrastructure Regulations Issued by DHS" (posted 2/27/04) (explaining
    implementation of section 214 of Homeland Security Act, which prohibits
    disclosure of certain "critical infrastructure information" and triggers
    protection of Exemption 3).

    217. Exec. Order No. 12,958, as amended, § 1.2(b)
    (providing that "no other terms shall be used to identify United States
    classified information").

    218. FOIA Post, "FOIA Officers Conference
    Held on Homeland Security" (posted 7/3/03) (emphasizing that "primary emphasis
    [should be] on the safeguarding of information, where appropriate due to
    its particular sensitivity rather than on the basis of any catch-all label").

    219. See id.

    220. 6 U.S.C.A. § 133 (West Supp. 2004); see also
    FOIA Post, "Homeland Security Law Contains New Exemption 3 Statute"
    (posted 1/27/03) (summarizing provisions and operation of new Exemption
    3 statute).

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