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FOIA Update: Litigation Review: History of Exemption 1 Disclosure Orders

FOIA Update
Vol. XVI, No. 2



Litigation Review

History of Exemption 1 Disclosure Orders

During the early years of the administration of the Freedom of Information Act, courts consistently deferred to agency judgments on national security issues in litigation cases involving Exemption 1. Since 1979, however, courts have undertaken increasingly strict scrutiny of agency classification determinations -- and in some cases, they have issued disclosure orders (often, but not always, overturned on appeal) regarding information that was classified under an applicable executive order and withheld by an agency on Exemption 1 grounds:

  • Tzaneff v. FBI, No. 79-0333 (D.D.C. July 31, 1979). In the first case of its kind, a district court judge undertook in camera inspection of two classified documents, held an in camera hearing at which the court questioned the agency affiants "to obtain a clearer understanding of the basis for [the Exemption 1] deletions," and then ordered the disclosure of particular sentences within paragraphs that were "portion marked." No appeal was taken.
  • Holy Spirit Ass'n v. CIA, No. 79-0151 (D.D.C. July 27, 1979), aff'd in pertinent part, 636 F.2d 838 (D.C. Cir. 1980), cert. granted, vacated in part & remanded, 455 U.S. 997 (1982). The district court ruled that the CIA's affidavits were conclusory and rejected its use of Exemption 1 as "overly broad." The D.C. Circuit affirmed on entirely procedural grounds. That decision was later vacated by the Supreme Court. See FOIA Update, March 1982, at 5.
  • Lamont v. Department of Justice, 475 F. Supp. 761 (S.D.N.Y. 1979), subsequent decision, No. 76-3092 (S.D.N.Y. Dec. 20, 1979), rev'd in pertinent part, No. 81-6078 (2d Cir. Sept. 25, 1981). The district court ordered the FBI to disclose portions of two classified documents. After the FBI determined that the information contained in one of them could be declassified and disclosed, it appealed regarding the second one and the Second Circuit reversed.
  • Carlisle Tire & Rubber Co. v. United States Customs Serv., No. 78-2001 (D.D.C. Nov. 21, 1979). The district court ordered disclosure of portions of four documents that "were published in the Federal Register" and one other document which was "inadvertently made public." No appeal was taken by the defendant agency.
  • Weberman v. NSA, 490 F. Supp. 9 (S.D.N.Y.), rev'd & remanded, 646 F.2d 563 (2d Cir. 1980) (table cite), summary judgment granted, 2 GDS ¶ 82,067 (S.D.N.Y. 1981), aff'd, 668 F.2d 676 (2d Cir. 1982). The request concerned a subject so sensitive that NSA could not confirm or deny the existence of any document without harming the national security. The district court ordered NSA to confirm or deny and did not permit the agency to prove its case in camera. The Second Circuit reversed and, on remand, the district court awarded the agency judgment on the merits after reviewing a classified affidavit in camera.
  • Pratt v. Webster, 508 F. Supp. 751 (D.D.C. 1981), subsequent decision, 2 GDS ¶ 81,298 (D.D.C. 1981). The district court ordered the FBI to disclose classified information in several documents. On review, the FBI determined that the information could be disclosed without harm to national security. Accordingly, no appeal was taken on this issue.
  • Jaffe v. CIA, 516 F. Supp. 576 (D.D.C. 1981), subsequent decision, 573 F. Supp. 377 (D.D.C. 1983). The district court rejected the FBI's justification for the withholding of certain information under Exemption 1. In fact, the court actually included some of the classified information directly in its opinion. It then allowed the FBI to supplement its submissions supporting its classification determinations and subsequently granted summary judgment in the FBI's favor on its Exemption 1 claims.
  • Taylor v. Department of the Army, 2 GDS ¶ 82,008 (D.D.C. 1981), rev'd, 684 F.2d 99 (D.C. Cir. 1982). The district court determined that the Army could not properly classify the compilation of its unclassified "measured resource area ratings" for all major combat units of the Army, and it ordered almost immediate disclosure. The D.C. Circuit stayed the disclosure order and ultimately upheld the Army's classification determination. See FOIA Update, Sept. 1982, at 4.
  • Dunaway v. Webster, 519 F. Supp. 1059 (N.D. Cal. 1981). The district court rejected the FBI's classification determinations, but on its own applied Exemption 7(C) to the information. Although this decision was an adverse Exemption 1 precedent, no appeal was taken because the information was allowed to be withheld on other grounds.
  • Peterzell v. Department of State, No. 82-2853 (D.D.C. Apr. 3, 1984), reconsideration granted in part (D.D.C. Oct. 16, 1984), vacated & remanded, No. 84-5805 (D.C. Cir. Apr. 2, 1985) (unpublished memorandum), on remand, No. 82-2853 (D.D.C. Sept. 20, 1985). The district court ruled that public statements by senior executive and legislative branch officials constituted sufficient official acknowledgment of certain "covert action" to warrant disclosure of classified documents. After the D.C. Circuit ordered the district court to consider the State Department's classified affidavit in camera, the district court reversed its conclusion. See FOIA Update, Fall 1984, at 5.
  • Abbotts v. NRC, No. 77-0624 (D.D.C. May 1, 1984), rev'd & remanded, 766 F.2d 604 (D.C. Cir. 1985). The district court concluded that the existence of information in the public domain that was "similar" to the classified information at issue warranted disclosure of that classified information, but the D.C. Circuit reversed that judgment. See FOIA Update, Summer 1985, at 4.
  • Fitzgibbon v. CIA, 578 F. Supp. 704 (D.D.C. 1983), motion for reconsideration granted in part, No. 79-0956 (D.D.C. July 5, 1984), remanded, No. 84-5632 (D.C. Cir. Mar. 13, 1986), summary judgment granted, No. 79-0956 (D.D.C. May 19, 1989), aff'd in part, rev'd in part, remanded, 911 F.2d 755 (D.C. Cir. 1990). The district court ordered the CIA to disclose some of the classified information at issue in the case after reviewing the CIA's in camera affidavits. On appeal, the D.C. Circuit remanded the case in light of the Supreme Court's decision in CIA v. Sims, 471 U.S. 159 (1985) (protecting intelligence sources under Exemption 3). On remand, the district court found most of the information to be protected under Sims, but it affirmed its disclosure order as to some of the information that the CIA had sought to protect under Exemptions 1 and 3. The D.C. Circuit subsequently reversed the part of the district court's order that still required disclosure, but it rested its decision upon Exemption 3 grounds only. See FOIA Update, Spring/Summer 1990, at 22.
  • Powell v. United States Dep't of Justice, No. 82-0326 (N.D. Cal. Mar. 27, 1985), stay denied (N.D. Cal. June 14, 1985), stay denied, No. 85-1918 (9th Cir. July 18, 1985), stay denied, No. A-84 (U.S. July 31, 1985) (Rehnquist, Circuit Justice) (undocketed order). The district court ordered the disclosure of classified records that were belatedly determined by it to be within the scope of the request and therefore were not addressed in the agency's classification affidavits. The agency was unable to obtain appellate review of the merits of this adverse decision because the records were disclosed after stays pending appeal were denied, successively, by the district court, by the Ninth Circuit, and even by the Supreme Court. The district court also ordered the disclosure of certain other segments of classified information, but the case subsequently was settled with the agency permitted to withhold this classified information.
  • Donovan v. FBI, 625 F. Supp. 808 (S.D.N.Y.), aff'd in pertinent part, 806 F.2d 55 (2d Cir. 1986). The Second Circuit upheld a district court disclosure order when it found that the affidavit submitted by the FBI inadequately described the withheld documents and was "unconvincing" as to any potential harm that could result from disclosure. The case subsequently was settled, with the plaintiff withdrawing his request for the classified records at issue in exchange for the government's agreement not to seek to vacate the Second Circuit's opinion in the Supreme Court.
  • Siminoski v. FBI, No. 83-6499 (C.D. Cal. Nov. 3, 1988) (magistrate's recommendation), rejected in pertinent part (C.D. Cal. Jan. 16, 1990). A magistrate recommended disclosure after in camera review, "wholly unconvinc[ed]" that documents over 40 years old were properly classified. The district court rejected that recommendation, holding that the passage of time did not affect their classification status.
  • Lawyers Comm. for Human Rights v. INS, 721 F. Supp. 552 (S.D.N.Y. 1989), motion to reargue denied, No. 87-1115 (S.D.N.Y. May 23, 1990), subsequent decision (S.D.N.Y. June 7, 1990). The district court ordered the State Department to disclose documents "already released to the public," as well as portions of other documents that discussed "off-the-record" exchanges with the press. The agency's motion to reargue this issue was denied. Upon the submission of additional affidavits by the agency and an in camera review of the remaining documents, the court upheld the agency's other Exemption 1 withholdings.
  • Bowers v. United States Dep't of Justice, No. 86-336 (W.D.N.C. Mar. 9, 1990), rev'd, 930 F.2d 350 (4th Cir.), cert. denied, 502 U.S. 911 (1991). The district court ordered the disclosure of classified information in FBI counterintelligence files after giving little if any weight to the FBI's statements of national security harm. On appeal, the Fourth Circuit reversed and permitted the information to be withheld. See FOIA Update, Spring 1991, at 7.
  • Rosenfeld v. United States Dep't of Justice, 761 F. Supp. 1440 (N.D. Cal. 1991), aff'd, 57 F.3d 803 (9th Cir. 1995). (See discussion of this case on opposite page.)

As agencies implement the provisions of new Executive Order No. 12,958, and consider possible challenges to their classification determinations under Exemption 1 in future FOIA litigation cases, they should bear in mind the history and lessons of these Exemption FOIA decisions.

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Updated December 6, 2022