Approaching the Bench
In an action brought under the FOIA, the burden is "upon the agency to sustain its action"(1) in withholding records under one or more of the FOIA's nine exemptions by submitting affidavits "demonstrating the applicability of the exemptions."(2)
A problem arises if the agency determines that it cannot describe in a public affidavit the bases for withholding documents because to do so would reveal the information it is trying to protect. When an agency is confronted with this situation its only practical course is the submission of an affidavit in camera--that is, an affidavit which the court will review in private.
The present practice of preparing and submitting a detailed affidavit to justify
the withholding of documents originated in the D.C. Circuit's decision in Vaughn
v. Rosen.(3) The court in Vaughn,
though, recognized that an agency may not be always able to place on the public
record a detailed justification for its withholding if such justification "would
compromise the secret nature of the information
Three years later, in Phillippi v. Central Intelligence Agency,(5) the D.C. Circuit sanctioned the use of a classified affidavit in camera when the agency could neither confirm nor deny the existence of requested documents. Utilization of the in camera procedure, however, was not to be automatic. The district court was to "attempt to create as complete a public record as possible" by requiring the agency "to provide a public affidavit explaining in as much detail as is possible the basis for its claim."(6) Only with such adequate public justification could the court authorize an agency to submit an affidavit in camera.(7)
An agency's decision to seek approval for the submission of an affidavit in camera will most often occur in a case where the agency is withholding national security information and the courts generally have been receptive to such requests.(8) However, an agency should not overlook the danger of disclosing exempt information in a public affidavit in connection with material believed to be properly withheld under any of the FOIA's other exemptions. Thus the agency should consider the availability of the in camera procedure regardless of the exemptions claimed.(9)
When such a situation arises, the agency should then prepare an affidavit stating in as much detail as publicly possible the basis for its non-disclosure position as well as its assertion that it can provide necessary additional justification detail only in an in camera submission. This affidavit should then be filed with the district court together with a motion for leave to submit an affidavit in camera. If the district court rules that the affidavit may be submitted in camera, such an affidavit should set forth the justification for withholding the documents in great detail and a further statement of the reasons the agency could not address the matter in such detail in a public affidavit.
The use of the in camera procedure has become acceptable to the courts and may be necessary to the defense of a FOIA suit. Nevertheless, attempts to invoke this procedure should not be made indiscriminately. As the D.C. Circuit recently noted: "[s]uch affidavits, however, do not permit the plaintiff to respond, and thus should be employed only where absolutely necessary."(10)
1. 5 U.S.C.
2. Allen v. Central Intelligence Agency, No. 80-1380, D.C. Cir, decided November 12, 1980. slip op. at 8.
3. 157 U.S. App. D.C. 340, 484 F.2d 820 (1973).
4. Id. at 346, 484 F.2d at 826.
5. 178 U.S. App. D.C. 243, 546 F.2d 1009 (1976).
6. Id. at 24, 546 F.2d at 1013.
8. See e.g. Hayden v. National Security Agency, 197 U.S. App. D.C. 224, 608 F.2d 1381 (1979); Letelier v. United States Department of Justice, Civil Action No. 79-1984 (D.D.C. June 24, 1980).
9. See e.g. Mead Data Central, Inc. v. United States Department of the Air Force, 184 U.S. App. D.C. 350, 369, 566 F.2d 242, 261 (1977); Ferguson v. Kelly, 455 F. Supp. 324 (N.D. Ill. 1978); Tarnopol v. Federal Bureau of Investigation, 442 F. Supp. 5, 9 (D.D.C. 1977).
10. Allen v. Central Intelligence Agency, supra, slip op. 22, n.63.
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