I. CIA v. SIMS
United States Supreme Court
CIA v. SIMS(1985)
No. 83-1075
Argued: December 4, 1984 Decided: April 16, 1985
[ Footnote * ] Together with No. 83-1249, Sims et al. v. Central Intelligence Agency et al., also on certiorari to the same court.
Between 1953 and 1966, the Central Intelligence Agency (CIA) financed a research project, code-named MKULTRA, that was established to counter Soviet and Chinese advances in brainwashing and interrogation techniques. Subprojects were contracted out to various universities, research foundations, and similar institutions. In 1977, respondents in No. 83-1075 (hereafter respondents) filed a request with the CIA under the Freedom of Information Act (FOIA), seeking, inter alia, the names of the institutions and individuals who had performed the research under MKULTRA. Citing Exemption 3 of the FOIA – which provides that an agency need not disclose “matters that are . . . specifically exempted from disclosure by statute . . . provided that such statute . . . refers to particular types of matters to be withheld” – the CIA declined to disclose the requested information. The CIA invoked, as the exempting statute referred to in Exemption 3, 102(d)(3) of the National Security Act of 1947, which states that “the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure.” Respondents then filed suit under the FOIA in Federal District Court. Applying, as directed by the Court of Appeals on an earlier appeal, a definition of “intelligence sources” as meaning only those sources to which the CIA had to guarantee confidentiality in order to obtain the information, the District Court held that the identities of researchers who had received express guarantees of confidentiality need not be disclosed, and also exempted from disclosure other researchers on the ground that their work for the CIA, apart from MKULTRA, required that their identities remain secret. The court further held that there was no need to disclose the institutional affiliations of the individual researchers whose identities were exempt from disclosure. The Court of Appeals affirmed this latter holding, but reversed the District Court’s ruling with respect to which individual researchers satisfied “the need-for-confidentiality” aspect of its formulation [471 U.S. 159, 160] of exempt “intelligence sources.” The Court of Appeals held that it was error automatically to exempt from disclosure those researchers to whom confidentiality had been promised, and that an individual qualifies as an “intelligence source” exempt from disclosure under the FOIA only when the CIA offers sufficient proof that it needs to protect its efforts in confidentiality in order to obtain the type of information provided by the researcher.
Held:
1. Section 102(d)(3) qualifies as a withholding statute under Exemption 3. Section 102(d)(3) clearly refers to “particular types of matters” within the meaning of Exemption 3. Moreover, the FOIA’s legislative history confirms that Congress intended 102(d)(3) to be a withholding statute under that Exemption. And the plain meaning of 102(d)(3)’s language, as well as the National Security Act’s legislative history, indicates that Congress vested in the Director of Central Intelligence broad authority to protect all sources of intelligence information from disclosure. To narrow this authority by limiting the definition of “intelligence sources” to sources to which the CIA had to guarantee confidentiality in order to obtain the information, not only contravenes Congress’ express intention but also overlooks the practical necessities of modern intelligence gathering. Pp. 166-173.
2. MKULTRA researchers are protected “intelligence sources” within 102(d)(3)’s broad meaning, because they provided, or were engaged to provide, information that the CIA needed to fulfill its statutory obligations with respect to foreign intelligence. To force the CIA to disclose a source whenever a court determines, after the fact, that the CIA could have obtained the kind of information supplied without promising confidentiality, could have a devastating impact on the CIA’s ability to carry out its statutory mission. The record establishes that the MKULTRA researchers did in fact provide the CIA with information related to its intelligence function, and therefore the Director was authorized to withhold these researchers’ identities from disclosure under the FOIA. Pp. 173-177.
3. The FOIA does not require the Director to disclose the institutional affiliations of the exempt researchers. This conclusion is supported by the record. The Director reasonably concluded that an observer who is knowledgeable about a particular intelligence research project, such as MKULTRA, could, upon learning that the research was performed at a certain institution, deduce the identities of the protected individual researchers. Pp. 177-181.
228 U.S. App. D.C. 269, 709 F.2d 95, affirmed in part and reversed in part. [471 U.S. 159, 161]
BURGER, C. J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, REHNQUIST, STEVENS, and O’CONNOR, JJ., joined. MARSHALL, J., filed an opinion concurring in the result, in which BRENNAN, J., joined, post, p. 181.
Acting Assistant Attorney General Willard argued the cause for petitioners in No. 83-1075 and respondents in No. 83-1249. With him on the briefs were Solicitor General Lee, Deputy Solicitor General Geller, David A. Strauss, Robert E. Kopp, Leonard Schaitman, and Stanley Sporkin.
Paul Alan Levy argued the cause for respondents in No. 83-1075 and petitioners in No. 83-1249. With him on the briefs were Alan B. Morrison and David C. Vladeck.
CHIEF JUSTICE BURGER delivered the opinion of the Court.
In No. 83-1075, we granted certiorari to decide whether 102(d)(3) of the National Security Act of 1947, as incorporated in Exemption 3 of the Freedom of Information Act, exempts from disclosure only those sources of intelligence information to which the Central Intelligence Agency had to guarantee confidentiality in order to obtain the information. In No. 83-1249, the cross-petition, we granted certiorari to decide whether the Freedom of Information Act requires the Agency to disclose the institutional affiliations of persons whose identities are exempt from disclosure as “intelligence sources.”
I
Between 1953 and 1966, the Central Intelligence Agency financed a wide-ranging project, code-named MKULTRA, concerned with “the research and development of chemical, biological, and radiological materials capable of employment in clandestine operations to control human behavior.” 1 The [471 U.S. 159, 162] program consisted of some 149 subprojects which the Agency contracted out to various universities, research foundations, and similar institutions. At least 80 institutions and 185 private researchers participated. Because the Agency funded MKULTRA indirectly, many of the participating individuals were unaware that they were dealing with the Agency.
MKULTRA was established to counter perceived Soviet and Chinese advances in brainwashing and interrogation techniques. Over the years the program included various medical and psychological experiments, some of which led to untoward results. 2 These aspects of MKULTRA surfaced publicly during the 1970’s and became the subject of executive and congressional investigations. 3
On August 22, 1977, John C. Sims, an attorney, and Sidney M. Wolfe, M.D., the director of the Public Citizen [471 U.S. 159, 163] Health Research Group, 4 filed a request with the Central Intelligence Agency seeking certain information about MKULTRA. Respondents invoked the Freedom of Information Act (FOIA), 5 U.S.C. 552. Specifically, respondents sought the grant proposals and contracts awarded under the MKULTRA program and the names of the institutions and individuals that had performed research. 5
Pursuant to respondents’ request, the Agency made available to respondents all of the MKULTRA grant proposals and contracts. Citing Exemption 3 of the FOIA, 5 U.S.C. 552(b) (3)(B), 6 however, the Agency declined to disclose the names of all individual researchers and 21 institutions. 7 Exemption 3 provides that an agency need not disclose “matters that are . . . specifically exempted from disclosure by statute . . . provided that such statute . . . refers to particular [471 U.S. 159, 164] types of matters to be withheld.” Ibid. The Agency relied on 102(d)(3) of the National Security Act of 1947, 61 Stat. 498, 50 U.S.C. 403(d)(3), which states that
“the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure.”
Dissatisfied with the Agency’s limited disclosure, respondents filed suit under the FOIA, 5 U.S.C. 552(a)(4)(B), in the United States District Court for the District of Columbia. That court ordered disclosure of the withheld names, holding that the MKULTRA researchers and affiliated institutions were not “intelligence sources” within the meaning of 102(d)(3). 479 F. Supp. 84 (1979).
On appeal, the United States Court of Appeals concluded, as had the District Court, that 102(d)(3) qualifies as a withholding statute under Exemption 3 of the FOIA. The court held, however, that the District Court’s analysis of that statute under the FOIA lacked a coherent definition of “intelligence sources.” Accordingly, it remanded the case for reconsideration in light of the following definition:
“[A]n `intelligence source’ is a person or institution that provides, has provided, or has been engaged to provide the CIA with information of a kind the Agency needs to perform its intelligence function effectively, yet could not reasonably expect to obtain without guaranteeing the confidentiality of those who provide it.” 206 U.S. App. D.C. 157, 166, 642 F.2d 562, 571 (1980).
On remand, the District Court applied this definition and ordered the Agency to disclose the names of 47 researchers and the institutions with which they had been affiliated. The court rejected respondents’ contention that the MKULTRA research was not needed to perform the Agency’s intelligence function, explaining that
“[i]n view of the agency’s concern that potential foreign enemies could be engaged in similar research and the [471 U.S. 159, 165] desire to take effective counter-measures, . . . [the Agency] could reasonably determine that this research was needed for its intelligence function.” App. to Pet. for Cert. in No. 83-1075, pp. 22a-23a.
The court then turned to the question whether the Agency could show, as the Court of Appeals’ definition requires, that it could not reasonably have expected to obtain the information supplied by the MKULTRA sources without guaranteeing confidentiality to them. The court concluded that the Agency’s policy of considering its relationships with MKULTRA researchers as confidential was not sufficient to satisfy the Court of Appeals’ definition because “the chief desire for confidentiality was on the part of the CIA.” Id., at 24a. The court recognized that some of the researchers had sought, and received, express guarantees of confidentiality from the Agency, and as to those held that their identities need not be disclosed. The court also exempted other researchers from disclosure on the ground that their work for the Agency, apart from MKULTRA, required that their identities remain secret in order not to compromise the Agency’s intelligence networks in foreign countries. Id., at 26a-27a, 30a-31a. Finally, the court held that there was no need to disclose the institutional affiliations of the individual researchers whose identities were exempt from disclosure; this withholding was justified by the need to eliminate the unnecessary risk that such intelligence sources would be identified indirectly. Id., at 27a, 34a.
Both the Agency and respondents appealed. The Court of Appeals affirmed that part of the District Court’s judgment exempting from disclosure the institutional affiliations of individual researchers found to be intelligence sources. However, it reversed the District Court’s ruling with respect to which individual researchers satisfied “the need-for-confidentiality” aspect of its formulation of exempt “intelligence sources.” 228 U.S. App. D.C. 269, 275, 709 F.2d 95, 101 (1983). [471 U.S. 159, 166]
At the outset, the court rejected the suggestion that it reconsider the definition of “intelligence sources.” Id., at 271, 709 F.2d, at 97. The court then criticized the District Court for focusing its inquiry on whether the Agency had in fact promised confidentiality to individual researchers. The court held that the District Court’s decision automatically to exempt from disclosure those researchers to whom confidentiality had been promised was erroneous; it directed the District Court on remand to focus its inquiry on whether the Agency offered sufficient proof that it needed to cloak its efforts in confidentiality in order to obtain the type of information provided by the researcher. Only upon such a showing would the individual qualify as an “intelligence source” exempt from disclosure under the FOIA. 8
We granted certiorari, 465 U.S. 1078 (1984) and 467 U.S. 1240 (1984). We now reverse in part and affirm in part.
II
No. 83-1075
A
The mandate of the FOIA calls for broad disclosure of Government records. 9 Congress recognized, however, that [471 U.S. 159, 167] public disclosure is not always in the public interest and thus provided that agency records may be withheld from disclosure under any of the nine exemptions defined in 5 U.S.C. 552(b). Under Exemption 3 disclosure need not be made as to information “specifically exempted from disclosure by statute” if the statute affords the agency no discretion on disclosure, 552(b)(3)(A), establishes particular criteria for withholding the information, or refers to the particular types of material to be withheld, 552(b)(3)(B).
The question in No. 83-1075 is twofold: first, does 102(d)(3) of the National Security Act of 1947 constitute a statutory exemption to disclosure within the meaning of Exemption 3; and second, are the MKULTRA researchers included within 102(d)(3)’s protection of “intelligence sources.”
B
Congress has made the Director of Central Intelligence “responsible for protecting intelligence sources and methods from unauthorized disclosure.” 50 U.S.C. 403(d)(3). As part of its postwar reorganization of the national defense system, Congress chartered the Agency with the responsibility of coordinating intelligence activities relating to national security. 10 In order to carry out its mission, the Agency was expressly entrusted with protecting the heart of all intelligence operations – “sources and methods.”
Section 102(d)(3) of the National Security Act of 1947, which calls for the Director of Central Intelligence to protect “intelligence sources and methods,” clearly “refers to particular types of matters,” 5 U.S.C. 552(b)(3)(B), and thus qualifies as a withholding statute under Exemption 3. The “plain meaning” of the relevant statutory provisions is sufficient to resolve the question, see, e. g., Garcia v. United [471 U.S. 159, 168] States, 469 U.S. 70, 75 (1984); United States v. Weber Aircraft Corp., 465 U.S. 792, 798 (1984). Moreover, the legislative history of the FOIA confirms that Congress intended 102(d)(3) to be a withholding statute under Exemption 3. 11 Indeed, this is the uniform view among other federal courts. 12
Our conclusion that 102(d)(3) qualifies as a withholding statute under Exemption 3 is only the first step of the inquiry. Agency records are protected under 102(d)(3) only to the extent they contain “intelligence sources and methods” or if disclosure would reveal otherwise protected information.
C
Respondents contend that the Court of Appeals’ definition of “intelligence sources,” focusing on the need to guarantee confidentiality in order to obtain the type of information desired, draws the proper line with respect to intelligence sources deserving exemption from the FOIA. The plain meaning of the statutory language, as well as the legislative history of the National Security Act, however, indicates that Congress vested in the Director of Central Intelligence very [471 U.S. 159, 169] broad authority to protect all sources of intelligence information from disclosure. The Court of Appeals’ narrowing of this authority not only contravenes the express intention of Congress, but also overlooks the practical necessities of modern intelligence gathering – the very reason Congress entrusted this Agency with sweeping power to protect its “intelligence sources and methods.”
We begin with the language of 102(d)(3). Baldrige v. Shapiro, 455 U.S. 345, 356 (1982); Steadman v. SEC, 450 U.S. 91, 97 (1981). Section 102(d)(3) specifically authorizes the Director of Central Intelligence to protect “intelligence sources and methods” from disclosure. Plainly the broad sweep of this statutory language comports with the nature of the Agency’s unique responsibilities. To keep informed of other nations’ activities bearing on our national security the Agency must rely on a host of sources. At the same time, the Director must have the authority to shield those Agency activities and sources from any disclosures that would unnecessarily compromise the Agency’s efforts.
The “plain meaning” of 102(d)(3) may not be squared with any limiting definition that goes beyond the requirement that the information fall within the Agency’s mandate to conduct foreign intelligence. Section 102(d)(3) does not state, as the Court of Appeals’ view suggests, that the Director of Central Intelligence is authorized to protect intelligence sources only if such protection is needed to obtain information that otherwise could not be acquired. Nor did Congress state that only confidential or nonpublic intelligence sources are protected. 13 Section 102(d)(3) contains no such limiting language. Congress simply and pointedly protected all sources [471 U.S. 159, 170] of intelligence that provide, or are engaged to provide, information the Agency needs to perform its statutory duties with respect to foreign intelligence. The plain statutory language is not to be ignored. Weber Aircraft Corp., supra, at 798.
The legislative history of 102(d)(3) also makes clear that Congress intended to give the Director of Central Intelligence broad power to protect the secrecy and integrity of the intelligence process. The reasons are too obvious to call for enlarged discussion; without such protections the Agency would be virtually impotent.
Enacted shortly after World War II, 102(d)(3) of the National Security Act of 1947 established the Agency and empowered it, among other things, “to correlate and evaluate intelligence relating to the national security.” 50 U.S.C. 403(d) (3). The tragedy of Pearl Harbor and the reported deficiencies in American intelligence during the course of the war convinced the Congress that the country’s ability to gather and analyze intelligence, in peacetime as well as in war, must be improved. See, e. g., H. R. Rep. No. 961, 80th Cong., 1st Sess., 3-4 (1947); S. Rep. No. 239, 80th Cong., 1st Sess., 2 (1947).
Congress knew quite well that the Agency would gather intelligence from almost an infinite variety of diverse sources. Indeed, one of the primary reasons for creating the Agency was Congress’ recognition that our Government would have to shepherd and analyze a “mass of information” in order to safeguard national security in the postwar world. See ibid. Witnesses with broad experience in the intelligence field testified before Congress concerning the practical realities of intelligence work. Fleet Admiral Nimitz, for example, explained that “intelligence is a composite of authenticated and evaluated information covering not only the armed forces establishment of a possible enemy, but also his industrial capacity, racial traits, religious beliefs, and other related aspects.” National Defense Establishment: [471 U.S. 159, 171] Hearings on S. 758 before the Senate Committee on Armed Services, 80th Cong., 1st Sess., 132 (1947) (Senate Hearings). General Vandenberg, then the Director of the Central Intelligence Group, the Agency’s immediate predecessor, emphasized that “foreign intelligence [gathering] consists of securing all possible data pertaining to foreign governments or the national defense and security of the United States.” Id., at 497. 14
Witnesses spoke of the extraordinary diversity of intelligence sources. Allen Dulles, for example, the Agency’s third Director, shattered the myth of the classic “secret agent” as the typical intelligence source, and explained that “American businessmen and American professors and Americans of all types and descriptions who travel around the world are one of the greatest repositories of intelligence that we have.” National Security Act of 1947: Hearings on H. R. 2319 before the House Committee on Expenditures in the Executive Departments, 80th Cong., 1st Sess., 22 (1947) (Closed House Hearings). 15 In a similar vein, General Vandenberg spoke of “the great open sources of information upon which roughly 80 percent of intelligence should be based,” and identified such sources as “books, magazines, technical and scientific surveys, photographs, commercial analyses, newspapers, and radio broadcasts, and general information from [471 U.S. 159, 172] people with knowledge of affairs abroad.” Senate Hearings, at 492.
Congress was also well aware of the importance of secrecy in the intelligence field. Both General Vandenberg and Allen Dulles testified about the grim consequences facing intelligence sources whose identities became known. See Closed House Hearings, at 10-11, 20. Moreover, Dulles explained that even American citizens who freely supply intelligence information “close up like a clam” unless they can hold the Government “responsible to keep the complete security of the information they turn over.” Id., at 22. 16 Congress was plainly alert to the need for maintaining confidentiality – both Houses went into executive session to consider the legislation creating the Agency – a rare practice for congressional sessions. See n. 15, supra.
Against this background highlighting the requirements of effective intelligence operations, Congress expressly made the Director of Central Intelligence responsible for “protecting intelligence sources and methods from unauthorized disclosure.” This language stemmed from President Truman’s Directive of January 22, 1946, 11 Fed. Reg. 1337, in which he established the National Intelligence Authority and the Central Intelligence Group, the Agency’s predecessors. These institutions were charged with “assur[ing] the most effective accomplishment of the intelligence mission related to the national security,” ibid., and accordingly made “responsible [471 U.S. 159, 173] for fully protecting intelligence sources and methods,” id., at 1339. The fact that the mandate of 102(d)(3) derives from this Presidential Directive reinforces our reading of the legislative history that Congress gave the Agency broad power to control the disclosure of intelligence sources.
III
A
Applying the definition of “intelligence sources” fashioned by the Congress in 102(d)(3), we hold that the Director of Central Intelligence was well within his statutory authority to withhold the names of the MKULTRA researchers from disclosure under the FOIA. The District Court specifically ruled that the Agency “could reasonably determine that this research was needed for its intelligence function,” 17 and the Court of Appeals did not question this ruling. Indeed, the record shows that the MKULTRA research was related to the Agency’s intelligence-gathering function in part because it revealed information about the ability of foreign governments to use drugs and other biological, chemical, or physical agents in warfare or intelligence operations against adversaries. During the height of the cold war period, the Agency was concerned, not without reason, that other countries were charting new advances in brainwashing and interrogation techniques. 18
Consistent with its responsibility to maintain national security, the Agency reasonably determined that major research [471 U.S. 159, 174] efforts were necessary in order to keep informed of our potential adversaries’ perceived threat. We thus conclude that MKULTRA researchers are “intelligence sources” within the broad meaning of 102(d)(3) because these persons provided, or were engaged to provide, information the Agency needs to fulfill its statutory obligations with respect to foreign intelligence.
Respondents’ belated effort to question the Agency’s authority to engage scientists and academic researchers as intelligence sources must fail. The legislative history of 102(d)(3) indicates that Congress was well aware that the Agency would call on a wide range and variety of sources to provide intelligence. Moreover, the record developed in this case confirms the obvious importance of scientists and other researchers as American intelligence sources. Notable examples include those scientists and researchers who pioneered the use of radar during World War II as well as the group which took part in the secret development of nuclear weapons in the Manhattan Project. See App. 43; App. to Pet. for Cert. in No. 83-1075, p. 88a. 19
B
The Court of Appeals narrowed the Director’s authority under 102(d)(3) to withhold only those “intelligence sources” who supplied the Agency with information unattainable without guaranteeing confidentiality. That crabbed reading of the statute contravenes the express language of 102(d)(3), the statute’s legislative history, and the harsh realities of the present day. The dangerous consequences of that narrowing of the statute suggest why Congress chose to vest the [471 U.S. 159, 175] Director of Central Intelligence with the broad discretion to safeguard the Agency’s sources and methods of operation.
The Court of Appeals underestimated the importance of providing intelligence sources with an assurance of confidentiality that is as absolute as possible. Under the court’s approach, the Agency would be forced to disclose a source whenever a court determines, after the fact, that the Agency could have obtained the kind of information supplied without promising confidentiality. 20 This forced disclosure of the identities of its intelligence sources could well have a devastating impact on the Agency’s ability to carry out its mission. “The Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service.” Snepp v. United States, 444 U.S. 507, 509 , n. 3 (1980) (per curiam). See Haig v. Agee, 453 U.S. 280, 307 (1981). If potentially valuable intelligence sources come to think that the Agency will be unable to maintain the confidentiality of its relationship to them, many could well refuse to supply information to the Agency in the first place.
Even a small chance that some court will order disclosure of a source’s identity could well impair intelligence gathering and cause sources to “close up like a clam.” To induce some sources to cooperate, the Government must tender as absolute an assurance of confidentiality as it possibly can. “The continued availability of [intelligence] sources depends upon the CIA’s ability to guarantee the security of information [471 U.S. 159, 176] that might compromise them and even endanger [their] personal safety.” Snepp v. United States, supra, at 512.
We seriously doubt whether a potential intelligence source will rest assured knowing that judges, who have little or no background in the delicate business of intelligence gathering, will order his identity revealed only after examining the facts of the case to determine whether the Agency actually needed to promise confidentiality in order to obtain the information. An intelligence source will “not be concerned with the underlying rationale for disclosure of” his cooperation if it was secured “under assurances of confidentiality.” Baldrige v. Shapiro, 455 U.S., at 361 . Moreover, a court’s decision whether an intelligence source will be harmed if his identity is revealed will often require complex political, historical, and psychological judgments. See, e. g., Fitzgibbon v. CIA, 578 F. Supp. 704 (DC 1983). There is no reason for a potential intelligence source, whose welfare and safety may be at stake, to have great confidence in the ability of judges to make those judgments correctly.
The Court of Appeals also failed to recognize that when Congress protected “intelligence sources” from disclosure, it was not simply protecting sources of secret intelligence information. As noted above, Congress was well aware that secret agents as depicted in novels and the media are not the typical intelligence source; many important sources provide intelligence information that members of the public could also obtain. Under the Court of Appeals’ approach, the Agency could not withhold the identity of a source of intelligence if that information is also publicly available. This analysis ignores the realities of intelligence work, which often involves seemingly innocuous sources as well as unsuspecting individuals who provide valuable intelligence information.
Disclosure of the subject matter of the Agency’s research efforts and inquiries may compromise the Agency’s ability to gather intelligence as much as disclosure of the identities of intelligence sources. A foreign government can learn a great deal about the Agency’s activities by knowing the [471 U.S. 159, 177] public sources of information that interest the Agency. The inquiries pursued by the Agency can often tell our adversaries something that is of value to them. See 228 U.S. App. D.C., at 277, 709 F.2d, at 103 (Bork, J., concurring in part and dissenting in part). For example, disclosure of the fact that the Agency subscribes to an obscure but publicly available Eastern European technical journal could thwart the Agency’s efforts to exploit its value as a source of intelligence information. Similarly, had foreign governments learned the Agency was using certain public journals and ongoing open research projects in its MKULTRA research of “brainwashing” and possible countermeasures, they might have been able to infer both the general nature of the project and the general scope that the Agency’s inquiry was taking. 21
C
The “statutory mandate” of 102(d)(3) is clear: Congress gave the Director wide-ranging authority to “protec[t] intelligence sources and methods from unauthorized disclosure.” Snepp v. United States, supra, at 509, n. 3. An intelligence source provides, or is engaged to provide, information the Agency needs to fulfill its statutory obligations. The record establishes that the MKULTRA researchers did in fact provide the Agency with information related to the Agency’s intelligence function. We therefore hold that the Director was authorized to withhold the identities of these researchers from disclosure under the FOIA.
IV
No. 83-1249
The cross-petition, No. 83-1249, calls for decision on whether the District Court and the Court of Appeals correctly [471 U.S. 159, 178] ruled that the Director of Central Intelligence need not disclose the institutional affiliations of the MKULTRA researchers previously held to be “intelligence sources.” Our conclusion that the MKULTRA researchers are protected from disclosure under 102(d)(3) renders unnecessary any extended discussion of this discrete issue.
In exercising the authority granted by Congress in 102(d)(3), the Director must, of course, do more than simply withhold the names of intelligence sources. Such withholding, standing alone, does not carry out the mandate of Congress. Foreign intelligence services have an interest in knowing what is being studied and researched by our agencies dealing with national security and by whom it is being done. Foreign intelligence services have both the capacity to gather and analyze any information that is in the public domain and the substantial expertise in deducing the identities of intelligence sources from seemingly unimportant details.
In this context, the very nature of the intelligence apparatus of any country is to try to find out the concerns of others; bits and pieces of data “may aid in piecing together bits of other information even when the individual piece is not of obvious importance in itself.” Halperin v. CIA, 203 U.S. App. D.C. 110, 116, 629 F.2d 144, 150 (1980). Thus,
“`[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.'” Halkin v. Helms, 194 U.S. App. D.C. 82, 90, 598 F.2d 1, 9 (1978), quoting United States v. Marchetti, 466 F.2d 1309, 1318 (CA4), cert. denied, 409 U.S. 1063 (1972).
Accordingly, the Director, in exercising his authority under 102(d)(3), has power to withhold superficially innocuous information on the ground that it might enable an observer to discover the identity of an intelligence source. See, e. g., [471 U.S. 159, 179] Gardels v. CIA, 223 U.S. App. D.C. 88, 91-92, 689 F.2d 1100, 1103-1104 (1982); Halperin v. CIA, supra, at 113, 629 F.2d, at 147.
Here the Director concluded that disclosure of the institutional affiliations of the MKULTRA researchers could lead to identifying the researchers themselves and thus the disclosure posed an unacceptable risk of revealing protected “intelligence sources.” 22 The decisions of the Director, who must of course be familiar with “the whole picture,” as judges are not, are worthy of great deference given the magnitude of the national security interests and potential risks at stake. It is conceivable that the mere explanation of why information must be withheld can convey valuable information to a foreign intelligence agency.
The District Court, in a ruling affirmed by the Court of Appeals, permitted the Director to withhold the institutional affiliations of the researchers whose identities were exempt from disclosure on the ground that disclosure of “the identities of the institutions . . . might lead to the indirect disclosure of” individual researchers. App. to Pet. for Cert. in No. 83-1075, p. 27a. This conclusion is supported by the record. 23 The Director reasonably concluded that an observer [471 U.S. 159, 180] who is knowledgeable about a particular intelligence research project, like MKULTRA, could, upon learning that research was performed at a certain institution, often deduce the identities of the individual researchers who are protected “intelligence sources.” The FOIA does not require disclosure under such circumstances.
Respondents contend that because the Agency has already revealed the names of many of the institutions at which MKULTRA research was performed, the Agency is somehow estopped from withholding the names of others. This suggestion overlooks the political realities of intelligence operations in which, among other things, our Government may choose to release information deliberately to “send a message” to allies or adversaries. 24 Congress did not mandate the withholding of information that may reveal the identity of an intelligence source; it made the Director of Central Intelligence responsible only for protecting against unauthorized disclosures.
The national interest sometimes makes it advisable, or even imperative, to disclose information that may lead to the identity of intelligence sources. And it is the responsibility of the Director of Central Intelligence, not that of the judiciary, to weigh the variety of complex and subtle factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the Agency’s intelligence-gathering process. Here Admiral Turner, as Director, decided that the benefits of disclosing the identities of institutions that had no objection to disclosure outweighed the costs [471 U.S. 159, 181] of doing so. But Congress, in 102(d)(3), entrusted this discretionary authority to the Director, and the fact that Admiral Turner made that determination in 1978 does not bind his successors to make the same determination, in a different context, with respect to institutions requesting that their identities not be disclosed. See, e. g., Salisbury v. United States, 223 U.S. App. D.C. 243, 248, 690 F.2d 966, 971 (1982).
V
We hold that the Director of Central Intelligence properly invoked 102(d)(3) of the National Security Act of 1947 to withhold disclosure of the identities of the individual MKULTRA researchers as protected “intelligence sources.” We also hold that the FOIA does not require the Director to disclose the institutional affiliations of the exempt researchers in light of the record which supports the Agency’s determination that such disclosure would lead to an unacceptable risk of disclosing the sources’ identities.
Accordingly, we reverse that part of the judgment of the Court of Appeals regarding the disclosure of the individual researchers and affirm that part of the judgment pertaining to disclosure of the researchers’ institutional affiliations.
It is so ordered.
Footnotes
[ Footnote 1 ] Final Report of the Select Committee to Study Government Operations with Respect to Intelligence Activities, S. Rep. No. 94-755, Book I, p. 389 (1976) (footnote omitted) (Final Report). MKULTRA began with a proposal [471 U.S. 159, 162] from Richard Helms, then the Agency’s Assistant Deputy Director for Plans. Helms outlined a special funding mechanism for highly sensitive Agency research and development projects that would study the use of biological and chemical materials in altering human behavior. MKULTRA was approved by Allen Dulles, then the Director of Central Intelligence, on April 13, 1953.
[ Footnote 2 ] Several MKULTRA subprojects involved experiments where researchers surreptitiously administered dangerous drugs, such as LSD, to unwitting human subjects. At least two persons died as a result of MKULTRA experiments, and others may have suffered impaired health because of the testing. See id., at 392-403. This type of experimentation is now expressly forbidden by Executive Order. Exec. Order No. 12333, 2.10, 3 CFR 213 (1982).
[ Footnote 3 ] See generally Final Report, at 385-422, 471-472; Report to the President by the Commission on CIA Activities Within the United States 226-228 (June 1975); Project MKULTRA, the CIA’s Program of Research in Behavioral Modification: Joint Hearings before the Select Committee on Intelligence and the Subcommittee on Health and Scientific Research of the Senate Committee on Human Resources, 95th Cong., 1st Sess. (1977); Human Drug Testing by the CIA, 1977: Hearings on S. 1893 before the Subcommittee on Health and Scientific Research of the Senate Committee on Human Resources, 95th Cong., 1st Sess. (1977).
An internal Agency report by its Inspector General had documented the controversial aspects of the MKULTRA project in 1963. See Report of Inspection of MKULTRA (July 26, 1963).
[ Footnote 4 ] Sims and Wolfe are the respondents in No. 83-1075 and the cross-petitioners in No. 83-1249. In order to avoid confusion, we refer to Sims and Wolfe as respondents throughout this opinion.
[ Footnote 5 ] Twenty years after the conception of the MKULTRA project, all known files pertaining to MKULTRA were ordered destroyed. Final Report, at 389-390, 403-405. In 1977, the Agency located some 8,000 pages of previously undisclosed MKULTRA documents. These consisted mostly of financial records that had inadvertently survived the 1973 records destruction. Upon this discovery, Agency Director Stansfield Turner notified the Senate Select Committee on Intelligence and later testified at a joint hearing before the Select Committee and the Subcommittee on Health and Scientific Resources of the Senate Committee on Human Resources. Although the Joint Committee was given a complete list of the MKULTRA researchers and institutions, the Committee honored the Agency’s request to treat the names as confidential. Respondents sought the surviving MKULTRA records that would provide this information.
[ Footnote 6 ] The Agency also cited Exemption 6, 5 U.S.C. 552(b)(6), which insulates from disclosure “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” This claim, rejected by the District Court and the Court of Appeals, is no longer at issue.
[ Footnote 7 ] The Agency tried to contact each institution involved in MKULTRA to ask permission to disclose its identity; it released the names of the 59 institutions that had consented. Evidently, the Agency made no parallel effort to contact the 185 individual researchers. See n. 22, infra.
[ Footnote 8 ] Judge Bork wrote a separate opinion, concurring in part and dissenting in part. He criticized the majority’s narrow definition of “intelligence sources,” urging in particular that there is “no reason to think that section 403(d)(3) was meant to protect sources of information only if secrecy was needed in order to obtain the information.” 228 U.S. App. D.C., at 277, 709 F.2d, at 103. He noted that “[i]t seems far more in keeping with the broad language and purpose of [ 403(d)(3)] to conclude that it authorizes the nondisclosure of a source of information whenever disclosure might lead to discovery of what subjects were of interest to the CIA.” Ibid. He also took issue with the majority’s conclusion that the FOIA sometimes requires the Agency to break a promise of confidentiality it has given to an intelligence source. This is “not an honorable way for the government of the United States to behave,” and would produce “pernicious results.” Id., at 276-277, 709 F.2d, at 102-103.
[ Footnote 9 ] The Court has consistently recognized this principle. See, e. g., Baldrige v. Shapiro, 455 U.S. 345, 352 (1982); NLRB v. Robbins Tire & [471 U.S. 159, 167] Rubber Co., 437 U.S. 214, 220 (1978); EPA v. Mink, 410 U.S. 73, 80 (1973).
[ Footnote 10 ] See, e. g., H. R. Rep. No. 961, 80th Cong., 1st Sess., 3 (1947); S. Rep. No. 239, 80th Cong., 1st Sess., 1 (1947).
[ Footnote 11 ] See H. R. Rep. No. 94-880, pt. 2, p. 15, n. 2 (1976). See also H. R. Conf. Rep. No. 93-1380, p. 12 (1974); S. Conf. Rep. No. 93-1200, p. 12 (1974); S. Rep. No. 93-854, p. 16 (1974). For a thorough review of the relevant background, see DeLaurentiis v. Haig, 686 F.2d 192, 195-197 (CA3 1982) (per curiam).
Recently, Congress enacted the Central Intelligence Agency Information Act, Pub. L. 98-477, 98 Stat. 2209, exempting the Agency’s “operational files” from the FOIA. The legislative history reveals that Congress maintains the position that 102(d)(3) is an Exemption 3 statute. See, e. g., H. R. Rep. No. 98-726, pt. 1, p. 5 (1984); S. Rep. No. 98-305, p. 7, n. 4 (1983).
[ Footnote 12 ] See, e. g., Miller v. Casey, 235 U.S. App. D.C. 11, 15, 730 F.2d 773, 777 (1984); Gardels v. CIA, 223 U.S. App. D.C. 88, 91, 689 F.2d 1100, 1103 (1982); Halperin v. CIA, 203 U.S. App. D.C. 110, 113, 629 F.2d 144, 147 (1980); National Comm’n on Law Enforcement and Social Justice v. CIA, 576 F.2d 1373, 1376 (CA9 1978).
[ Footnote 13 ] Congress certainly is capable of drafting legislation that narrows the category of protected sources of information. In other provisions of the FOIA and in the Privacy Act, Congress has protected “confidential source[s],” sources of “confidential information,” and sources that provided information under an express promise of confidentiality. See 5 U.S.C. 552(b)(7)(D), 552a(k)(2) and (5).
[ Footnote 14 ] Congressmen certainly appreciated the special nature of the Agency’s intelligence function. For example, Representative Wadsworth remarked that the “function of [the Agency] is to constitute itself as a gathering point for information coming from all over the world through all kinds of channels.” 93 Cong. Rec. 9397 (1947). Representative Boggs, during the course of the House hearings, commented that the Director of Central Intelligence “is dealing with all the information and the evaluation of that information, from wherever we can get it.” National Security Act of 1947: Hearings on H. R. 2319 before the House Committee on Expenditures in the Executive Departments, 80th Cong., 1st Sess., 112 (1947).
[ Footnote 15 ] These hearings were held in executive session. The transcript was declassified in 1982. The Senate also held hearings behind closed doors. See S. Rep. No. 239, 80th Cong., 1st Sess., 1 (1947).
[ Footnote 16 ] Secrecy is inherently a key to successful intelligence operations. In the course of issuing orders for an intelligence mission, George Washington wrote to his agent:
“The necessity of procuring good intelligence, is apparent and need not be further urged. All that remains for me to add is, that you keep the whole matter as secret as possible. For upon secrecy, success depends in most Enterprises of the kind, and for want of it they are generally defeated . . . .” 8 Writings of George Washington 478-479 (J. Fitzpatrick ed. 1933) (letter from George Washington to Colonel Elias Dayton, July 26, 1777).
[ Footnote 17 ] App. to Pet. for Cert. in No. 83-1075, pp. 22a-23a.
[ Footnote 18 ] For example, Director of Intelligence Stansfield Turner explained in an affidavit that the MKULTRA program was initiated because the Agency was confronted with “learning the state of the art of behavioral modification at a time when the U.S. Government was concerned about inexplicable behavior of persons behind the `iron curtain’ and American prisoners of war who had been subjected to so called `brainwashing.'” Id., at 89a.
[ Footnote 19 ] Indeed, the legislative history of the recently enacted Central Intelligence Agency Information Act, Pub. L. 98-477, 98 Stat. 2209, in which Congress exempted the Agency’s “operational files” from disclosure under the FOIA, 50 U.S.C. 431 (1982 ed., Supp. III), reveals Congress’ continued understanding that scientific researchers would be valuable intelligence sources. See H. R. Rep. No. 98-726, pt. 1, p. 22 (1984).
[ Footnote 20 ] Indeed, the Court of Appeals suggested that the Agency would be required to betray an explicit promise of confidentiality if a court determines that the promise was not necessary, or if a court concludes that the intelligence source to whom the promise was given was “unreasonably and atypically leery” of cooperating with the Agency. 228 U.S. App. D.C., at 273, 709 F.2d, at 99. However, “[g]reat nations, like great men, should keep their word.” FPC v. Tuscarora Indian Nation, 362 U.S. 99, 142 (1960) (Black, J., dissenting).
[ Footnote 21 ] In an affidavit, Director of Central Intelligence Turner stated that “[t]hroughout the course of the [MKULTRA] Project, CIA involvement or association with the research was concealed in order to avoid stimulating the interest of hostile countries in the same research areas.” App. to Pet. for Cert. in No. 83-1075, pp. 89a-90a.
[ Footnote 22 ] During the congressional inquiries into MKULTRA, then Director of Central Intelligence Turner notified the 80 institutions at which MKULTRA research had been conducted. Many of these institutions had not previously been advised of their involvement; Director Turner notified them as part of “a course of action [designed to] lead to the identification of unwitting experimental subjects.” Id., at 92a, n. 1. As a result of inquiries into the MKULTRA program, many of these institutions disclosed their involvement to the public. Others advised the Agency that they had no objection to public disclosure. Director Turner disclosed the names of these institutions; he did not disclose the names of any institutions that objected to disclosure. See n. 7, supra.
[ Footnote 23 ] For example, an affidavit filed by an Agency operations officer familiar with MKULTRA stated that disclosure of the institutions at which MKULTRA research was performed would pose “a threat of damage to existing intelligence-related arrangements with the institutions or exposure of past relationships with the institutions.” App. 27.
[ Footnote 24 ] Admiral Turner provided one well-known example of this phenomenon:
“[D]uring the Cuban missile crisis, President Kennedy decided to release a great deal of sensitive intelligence information concerning Soviet missile installations in Cuba. It was clear, at that time, that the Soviets had to be told publicly that the United States Government had precise information on the extent of the Soviet threat in order to justify the strong countermeasures then taken by our Government.” App. to Pet. for Cert. in No. 83-1075, p. 90a.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, concurring in the result.
To give meaning to the term “intelligence source” as it is used in 102(d)(3) of the National Security Act of 1947, the Court today correctly concludes that the very narrow definition offered by the Court of Appeals is incorrect. 1 That the [471 U.S. 159, 182] Court of Appeals erred does not, however, compel the conclusion that the Agency’s sweeping alternative definition is in fact the correct one. 2 The Court nonetheless simply adopts wholesale the Agency’s definition of “intelligence source.” That definition is mandated neither by the language or legislative history of any congressional Act, nor by legitimate policy considerations, and it in fact thwarts congressional efforts to balance the public’s interest in information and the Government’s need for secrecy. I therefore decline to join the opinion of the Court.
I
The Freedom of Information Act (FOIA or Act) established a broad mandate for disclosure of governmental information by requiring that all materials be made public “unless explicitly allowed to be kept secret by one of the exemptions . . . .” S. Rep. No. 813, 89th Cong., 1st Sess., 10 (1965). The Act requires courts to review de novo agency claims of exemption, and it places on the agency the burden of defending its withholding of information. 5 U.S.C. 552(a) (4)(B). Congress, it is clear, sought to assure that the Government would not operate behind a veil of secrecy, and it narrowly tailored the exceptions to the fundamental goal of disclosure.
Two of these few exceptions are at issue in this case. The first, on which the Court focuses, is Exemption 3, which exempts information “specifically exempted from disclosure by statute,” if the statute affords the agency no discretion on disclosure, 552(b)(3)(A), establishes particular criteria for withholding the information, 552(b)(3)(B), or refers to the particular types of material to be withheld, ibid. The Court [471 U.S. 159, 183] quite rightly identifies 102(d)(3) of the National Security Act as a statutory exemption of the kind to which Exemption 3 refers; that section places with the Director of Central Intelligence the responsibility for “protecting intelligence sources and methods from unauthorized disclosure.”
A second exemption, known as Exemption 1, covers matters that are “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C. 552(b)(1). This latter Exemption gives to the Executive Branch the authority to define material that will not be disclosed, subject of course to congressional amendment of the Exemption. Agency decisions to withhold are subject to de novo review in the courts, which must ascertain whether documents are correctly classified, both substantively and procedurally.
Exemption 1 is the keystone of a congressional scheme that balances deference to the Executive’s interest in maintaining secrecy with continued judicial and congressional oversight. In the past, Congress has taken affirmative steps to make clear the importance of this oversight. See n. 5, infra. Exemption 1 allows the Government to protect from the scrutiny of this Nation’s enemies classes of information that warrant protection, as long as the Government proceeds through a publicly issued, congressionally scrutinized, and judicially enforced executive order. See Hearings on Executive Order on Security Classification before the Subcommittee of the Committee on Government Operations of the House of Representatives, 97th Cong., 2d Sess. (1982) (Hearing).
Exemption 1 thus plays a crucial role in the protection of Central Intelligence Agency information. That the Court does not mention this Exemption even once, in the course of its lengthy analysis on the policy reasons for broadly interpreting [471 U.S. 159, 184] the “intelligence source” provision, is extraordinary. By focusing myopically on the single statutory provision on which the Agency has chosen to rely in asserting its secrecy right, the Court rewards the Agency’s decision not to invoke Exemption 1 in these cases. 3 Of course, the Agency may fairly assert any possible ground for decision, and it has no duty to select that which is narrowest. But the Court, intent to assure that important information is protected, today plays into the Agency’s hands by stretching the “intelligence source” exception beyond its natural limit; it does so while simply ignoring the fact that the information sought could properly have been withheld on other grounds – on which the Agency chose not to rely. The cost of acceding to the Agency’s litigation strategy, rather than undertaking a thorough analysis of the entire statutory scheme, is to mangle, seriously, a carefully crafted statutory scheme.
II
I turn, then, to consider in light of this statutory framework the Court’s analysis of Exemption 3. After concluding that Exemption 3 incorporates 102(d)(3) as a withholding provision, the Court sets out to define the term “intelligence source.” First, it looks to the “plain meaning” of the phrase and concludes that an “intelligence source” is self-evidently the same as an “information source.” Ante, at 169-170. Second, the Court looks to the legislative history. Pulling [471 U.S. 159, 185] together pieces of testimony from congressional hearings on the need to establish a centralized agency to gather information, it concludes that Congress knew that the Agency would collect information from diverse sources, and that “Congress was plainly alert to the need for maintaining confidentiality” so as not to lose covert sources of information. Ante, at 172; see also Brief for Petitioners in No. 83-1075, pp. 18-21. Third, the Court chastises the Court of Appeals for adopting a “crabbed” reading of the statute and explains how, as a policy matter, the “forced disclosure of the identities of its intelligence sources could well have a devastating impact on the Agency’s ability to carry out its mission.” Ante, at 175; see also Brief for Petitioners in No. 83-1075, p. 31. The Court offers examples of highly sensitive information that, under the lower court’s reading, might be disclosed. See ante, at 176-177; see also Brief for Petitioners in No. 83-1075, pp. 34-37.
Before this Court, the Agency argued against the lower court’s definition of “intelligence source,” substituted its own sweeping offering, and then recounted a litany of national security nightmares that would surely befall this Nation under any lesser standard; today the Court simply buys this analysis. But the Court thereby ignores several important facts. First, the holding today is not compelled by the language of the statute, nor by the legislative history on which the Court relies. Second, the Court of Appeals’ definition is not the sole alternative to the one adopted by the Court today. Third, as noted, supra, other broad exemptions to FOIA exist, and a holding that this Exemption 3 exception does not apply here would in no way pose the risk of broad disclosure the Agency suggests. The Court’s reliance on the Nation’s national security interests is simply misplaced given that the “intelligence source” exemption in the National Security Act is far from the Agency’s exclusive, or most potent, resource for keeping probing eyes from secret documents. In its haste to adopt the Agency’s sweeping definition, [471 U.S. 159, 186] the Court completely bypasses a considerably more rational definition that comports at least as well with the statutory language and legislative history, and that maintains the congressionally imposed limits on the Agency’s exercise of discretion in this area.
To my mind, the phrase “intelligence source” refers only to sources who provide information either on an express or implied promise of confidentiality, and the exemption protects such information and material that would lead to disclosure of such information. This reading is amply supported by the language of the statute and its history.
First, I find reliance on “plain meaning” wholly inappropriate. The heart of the issue is whether the term “intelligence source” connotes that which is confidential or clandestine, and the answer is far from obvious. The term is readily susceptible of many interpretations, and in the past the Government itself has defined the term far less broadly than it now does before this Court. In testimony before the House Subcommittee on Government Operations on President Reagan’s Exemption 1 Executive Order, Steven Garfinkel, Director of the Information Security Oversight Office, explained that the term “intelligence source” is narrow and does not encompass even all confidential sources of information:
“[C]ertain of these sources are not `intelligence sources.’ They are not involved in intelligence agencies or in intelligence work. They happen to be sources of information received by these agencies in confidence.” Hearing, at 204.
The current administration’s definition of the term “intelligence source” as used in its Executive Order does not, of course, control our interpretation of a longstanding statute. But the fact that the same administration has read the phrase in different ways for different purposes certainly undercuts the Court’s argument that the phrase has any single and readily apparent definition. [471 U.S. 159, 187]
“[P]lain meaning, like beauty, is sometimes in the eye of the beholder,” Florida Power & Light Co. v. Lorion, 470 U.S. 729, 737 (1985), and in an instance such as this one, in which the term at issue carries with it more than one plausible meaning, it is simply inappropriate to select a single reading and label it the “plain meaning.” The Court, like the Government, argues that the statute does not say “confidential source,” as it might were its scope limited to sources who have received an implied or express promise of confidentiality. See ante, at 169, and n. 13; Brief for Petitioners in No. 83-1075, p. 16. However, the statute also does not say “information source” as it might were it meant to define the class of material that the Court identifies. I therefore reject the Court’s basic premise that the language at issue necessarily has but a single, obvious interpretation.
Nor does the legislative history suggest anything other than a congressional desire to protect those individuals who might either be harmed or silenced should their identities or assistance become known. The congressional hearings quoted by the Court, and by the Government in its brief, focus on Congress’ concern about the “deadly peril” faced by intelligence sources if their identities were revealed, and about the possibility that those sources would “`close up like a clam'” without protection. See ante, at 172; Brief for Petitioners in No. 83-1075, p. 20. These concerns are fully addressed by preventing disclosure of the identities of sources who might face peril, or cease providing information, if their identities were known, and of other information that might lead an observer to identify such sources. That, to my mind, is the start and finish of the exemption for an “intelligence source” – one who contributes information on an implicit understanding or explicit assurance of confidentiality, as well as information that could lead to such a source. 4 [471 U.S. 159, 188]
This reading of the “intelligence source” language also fits comfortably within the statutory scheme as a whole, as the Court’s reading does not. I focus, at the outset, on the recent history of FOIA Exemption 1 and particularly on the way in which recent events reflect Congress’ ongoing effort to constrain agency discretion of the kind endorsed today. The scope of Exemption 1 is defined by the Executive, and its breadth therefore quite naturally fluctuates over time. For example, at the time this FOIA action was begun, Executive Order 12065, promulgated by President Carter, was in effect. That Order established three levels of secrecy – top secret, secret, and confidential – the lowest of which, “confidential,” was “applied to information, the unauthorized disclosure of which reasonably could be expected to cause identifiable damage to the national security.” 3 CFR 191 (1979).
The Order also listed categories of information that could be considered for classification, including “military plans, weapons, or operations,” “foreign government information,” and “intelligence activities [and] sources.” Id., at 193. As it is now, nondisclosure premised on Exemption 1 was subject to judicial review. A court reviewing an Agency claim to withholding under Exemption 1 was required to determine de novo whether the document was properly classified and whether it substantively met the criteria in the Executive Order. If the claim was that the document or information in it contained military plans, for example, a court was required to determine whether the document was classified, whether it in fact contained such information and whether disclosure of the document reasonably could be expected to cause at least identifiable damage to national security. The burden was on the Agency to make this showing. At one time, this [471 U.S. 159, 189] Court believed that the Judiciary was not qualified to undertake this task. See EPA v. Mink, 410 U.S. 73 (1973), discussed in n. 5, infra. Congress, however, disagreed, overruling both a decision of this Court and a Presidential veto to make clear that precisely this sort of judicial role is essential if the balance that Congress believed ought to be struck between disclosure and national security is to be struck in practice. 5
Today’s decision enables the Agency to avoid making the showing required under the carefully crafted balance embodied in Exemption 1 and thereby thwarts Congress’ effort to limit the Agency’s discretion. The Court identifies two categories of information – the identity of individuals or entities, whether or not confidential, that contribute material related [471 U.S. 159, 190] to Agency information gathering, and material that might enable an observer to discover the identity of such a “source” – and rules that all such information is per se subject to withholding as long as it is related to the Agency’s “intelligence function.” The Agency need not even assert that disclosure will conceivably affect national security, much less that it reasonably could be expected to cause at least identifiable damage. It need not classify the information, much less demonstrate that it has properly been classified. Similarly, no court may review whether the source had, or would have had, any interest in confidentiality, or whether disclosure of the information would have any effect on national security. No court may consider whether the information is properly classified, or whether it fits the categories of the Executive Order. By choosing to litigate under Exemption 3, and by receiving this Court’s blessing, the Agency has cleverly evaded all these carefully imposed congressional requirements. 6
If the class thus freed from judicial review were carefully defined, this result conceivably could make sense. It could [471 U.S. 159, 191] mean that Congress had decided to slice out from all the Agency’s possible documents a class of material that may always be protected, no matter what the scope of the existing executive order. But the class that the Court defines is boundless. It is difficult to conceive of anything the Central Intelligence Agency might have within its many files that might not disclose or enable an observer to discover something about where the Agency gathers information. Indeed, even newspapers and public libraries, road maps and telephone books appear to fall within the definition adopted by the Court today. The result is to cast an irrebuttable presumption of secrecy over an expansive array of information in Agency files, whether or not disclosure would be detrimental to national security, and to rid the Agency of the burden of making individualized showings of compliance with an executive order. Perhaps the Court believes all Agency documents should be susceptible to withholding in this way. But Congress, it must be recalled, expressed strong disagreement by passing, and then amending, Exemption 1. In light of the Court’s ruling, the Agency may nonetheless circumvent the procedure Congress has developed and thereby undermine this explicit effort to keep from the Agency broad and unreviewable discretion over an expansive class of information.
III
The Court today reads its own concerns into the single phrase, “intelligence source.” To justify its expansive reading of these two words in the National Security Act the Court explains that the Agency must be wary, protect itself, and not allow observers to learn either of its information resources or of the topics of its interest. “Disclosure of the subject matter of the Agency’s research efforts and inquiries may compromise the Agency’s ability to gather intelligence as much as disclosure of the identities of intelligence sources,” ante, at 176, the Court observes, and the “intelligence source” [471 U.S. 159, 192] exemption must bear the weight of that concern as well. That the Court points to no legislator or witness before Congress who expressed a concern for protecting such information through this provision is irrelevant to the Court. That each of the examples the Court offers of material that might disclose a topic of interest, and that should not be disclosed, could be protected through other existing statutory provisions, is of no moment. 7 That the public already knows all about the MKULTRA project at issue in this case, except for the names of the researchers, and therefore that the Court’s concern about disclosure of the Agency’s “topics of interest” argument is not appropriate to this case, is of no consequence. And finally, that the Agency now has virtually unlimited discretion to label certain information “secret,” in contravention of Congress’ explicit efforts to confine the Agency’s discretion both substantively and procedurally, is of no importance. Instead, simply because the Court can think of information that it believes should not be disclosed, and that might otherwise not fall within this exemption, the Court undertakes the task of interpreting the exemption to cover that information. I cannot imagine the canon of statutory construction upon which this reasoning is based. [471 U.S. 159, 193]
Congress gave to the Agency considerable discretion to decide for itself whether the topics of its interest should remain secret, and through Exemption 1 it provided the Executive with the means to protect such information. If the Agency decides to classify the identities of nonconfidential contributors of information so as not to reveal the subject matter or kinds of interests it is pursuing, it may seek an Exemption 1 right to withhold. Under Congress’ scheme, that is properly a decision for the Executive. It is not a decision for this Court. Congress has elsewhere identified particular types of information that it believes may be withheld regardless of the existence of an executive order, such as the identities of Agency employees, or, recently, the contents of Agency operational files. See 50 U.S.C. 403g (exempting from disclosure requirements the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency); Central Intelligence Agency Information Act, Pub. L. 98-477, 701(a), 98 Stat. 2209, 50 U.S.C. 431 (1982 ed., Supp. III) (exempting the Agency’s operational files from disclosure under FOIA). Each of these categorical exemptions reflects a congressional judgment that as to certain information, the public interest will always tip in favor of nondisclosure. In these cases, we have absolutely no indication that Congress has ever determined that the broad range of information that will hereinafter be enshrouded in secrecy should be inherently and necessarily confidential. Nevertheless, today the Court reaches out to substitute its own policy judgments for those of Congress.
IV
To my mind, the language and legislative history of 102(d)(3), along with the policy concerns expressed by the Agency, support only an exemption for sources who provide information based on an implicit or explicit promise of confidentiality and information leading to disclosure of such sources. That reading of the “intelligence source” exemption poses no threat that sources will “clam up” for fear of [471 U.S. 159, 194] exposure, while at the same time it avoids an injection into the statutory scheme of the additional concerns of the Members of this Court. The Court of Appeals, however, ordered the release of even more material than I believe should be disclosed. Accordingly, I would reverse and remand this case for reconsideration in light of what I deem to be the proper definition of the term “intelligence source.”
[ Footnote 1 ] The Court of Appeals defined an “intelligence source” as “a person or institution that provides, has provided, or has been engaged to provide the CIA with information of a kind the Agency needs to perform its intelligence function effectively, yet could not reasonably expect to obtain without guaranteeing the confidentiality of those who provide it.” 206 U.S. App. D.C. 157, 166, 642 F.2d 562, 571 (1980) (Sims I).
[ Footnote 2 ] The Court today defines an “intelligence source” as one that “provides, or is engaged to provide, information . . . related to the Agency’s intelligence function,” ante, at 177, and holds also that the Director may withhold, under this definition, information that might enable an observer to discover the identity of such a source. Ante, at 178.
[ Footnote 3 ] Indeed, these cases present a curious example of the Government’s litigation strategy. Despite the repeated urging of the District Court, the Agency steadfastly refused to invoke Exemption 1 to withhold the information at issue. The lists of names of MKULTRA researchers were in fact once classified under an Executive Order and were therefore within the potential scope of Exemption 1, but the Agency elected to declassify them. See 479 F. Supp. 84, 88 (DC 1979). The District Court went so far as to postpone the effective date of its disclosure order, so the Agency could “act on the possibility of classifying the names of institutions and researchers which would otherwise be disclosable,” ibid., and thereby withhold the information under Exemption 1. The Agency refused to do so, however.
[ Footnote 4 ] The fact that Congress established an Agency to collect information from anywhere it could does not mean that it sought through the phrase “intelligence source” to keep secret everything the Agency did in this [471 U.S. 159, 188] regard. Far from it, as the Court and the Agency both acknowledge, the early congressional expressions of concern about secrecy all focused on the need to maintain the anonymity of persons who would provide information only on an assurance of confidentiality.
[ Footnote 5 ] In EPA v. Mink, 410 U.S. 73 (1973), the Court held that when an agency relied on Exemption 1, which at the time covered matters “specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy,” 5 U.S.C. 552(b)(1) (1970 ed.), a reviewing court could affirm the decision not to disclose on the basis of an agency affidavit stating that the document had been duly classified pursuant to executive order. The Court held that in camera inspection of the documents was neither authorized nor permitted because “Congress chose to follow the Executive’s determination in these matters.” 410 U.S., at 81 .
Shortly thereafter, Congress overrode a Presidential veto and amended the Act with the express purpose of overuling the Mink decision. Exemption 1 was modified to exempt only matters that are “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) in fact properly classified pursuant to such Executive order.” 5 U.S.C. 552(b)(1). In addition, Congress amended the judicial review language to provide that “the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action.” 5 U.S.C. 552(a)(4)(B). The legislative history unequivocally establishes that in camera review would often be necessary and appropriate. See S. Rep. No. 93-1200, p. 9 (1974).
[ Footnote 6 ] The current Executive Order moves Exemption 1 a step closer to Exemption 3, given the manner in which the Court interprets the National Security Act exemption. Like its predecessor, the Order establishes three classification levels, but unlike the prior Order, the “confidential” classification no longer requires a reasonable possibility of identifiable damage. Instead, the label “confidential” now shall be applied to “information the unauthorized disclosure of which reasonably could be expected to cause damage to the national security.” Exec. Order No. 12356, 3 CFR 166 (1983). In addition, the new Order not only lists “intelligence sources” as a category subject to classification, but it also creates a presumption that such information is confidential. This presumption shifts from the Agency the burden of proving the possible consequence to national security of disclosure. As a result, if the Agency defines “intelligence source” under the Executive Order as broadly as the Court defines the term in 102(d)(3), the Agency need make but a limited showing to a court to invoke Exemption 1 for that material. In light of this new Order, the Court’s avid concern for the national security consequences of a narrower definition of the term is quite puzzling.
[ Footnote 7 ] For example, the Court suggests that disclosure of the fact that the Agency subscribes to an obscure but publicly available Eastern European technical journal “could thwart the Agency’s efforts to exploit its value as a source of intelligence information.” Ante, at 177; see Brief for Petitioners in No. 83-1075, p. 36. Assuming this method of obtaining information is not protected by Exemption 1, through an executive order, it would surely be protected through Exemption 3’s incorporation of 102(d)(3) of the National Security Act. That provision, in addition to protecting “intelligence sources,” also protects “intelligence methods,” and surely encompasses covert means of obtaining information, the disclosure of which might close access to certain kinds of information. Similarly, the fact that some unsuspecting individuals provide valuable intelligence information must be protected, see ante, at 176; Brief for Petitioners in No. 83-1075, p. 39, n. 15, but again, because it is a covert means of obtaining information, not because the “source” of that information needs or expects confidentiality. [471 U.S. 159, 195]
II. CIA v. Sims, 471 U.S. 159 (1985)
Central Intelligence Agency v. Sims
No. 83-1075
Argued December 4, 1984
Decided April 16, 1985*
Syllabus
Between 1953 and 1966, the Central Intelligence Agency (CIA) financed a research project, code-named MKULTRA, that was established to counter Soviet and Chinese advances in brainwashing and interrogation techniques. Subprojects were contracted out to various universities, research foundations, and similar institutions. In 1977, respondents in No. 83-1075 (hereafter respondents) filed a request with the CIA under the Freedom of Information Act (FOIA), seeking, inter alia, the names of the institutions and individuals who had performed the research under MKULTRA. Citing Exemption 3 of the FOIA — which provides that an agency need not disclose
“matters that are . . . specifically exempted from disclosure by statute . . . provided that such statute . . . refers to particular types of matters to be withheld”
— the CIA declined to disclose the requested information. The CIA invoked, as the exempting statute referred to in Exemption 3, § 102(d)(3) of the National Security Act of 1947, which states that
“the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure.”
Respondents then filed suit under the FOIA in Federal District Court. Applying, as directed by the Court of Appeals on an earlier appeal, a definition of “intelligence sources” as meaning only those sources to which the CIA had to guarantee confidentiality in order to obtain the information, the District Court held that the identities of researchers who had received express guarantees of confidentiality need not be disclosed, and also exempted from disclosure other researchers on the ground that their work for the CIA, apart from MKULTRA, required that their identities remain secret. The court further held that there was no need to disclose the institutional affiliations of the individual researchers whose identities were exempt from disclosure. The Court of Appeals affirmed this latter holding, but reversed the District Court’s ruling with respect to which individual researchers satisfied “the need-for-confidentiality” aspect of its formulation
Page 471 U. S. 160
of exempt “intelligence sources.” The Court of Appeals held that it was error automatically to exempt from disclosure those researchers to whom confidentiality had been promised, and that an individual qualifies as an “intelligence source” exempt from disclosure under the FOIA only when the CIA offers sufficient proof that it needs to protect its efforts in confidentiality in order to obtain the type of information provided by the researcher.
Held:
1. Section 102(d)(3) qualifies as a withholding statute under Exemption 3. Section 102(d)(3) clearly refers to “particular types of matters” within the meaning of Exemption 3. Moreover, the FOIA’s legislative history confirms that Congress intended § 102(d)(3) to be a withholding statute under that Exemption. And the plain meaning of § 102(d)(3)’s language, as well as the National Security Act’s legislative history, indicates that Congress vested in the Director of Central Intelligence broad authority to protect all sources of intelligence information from disclosure. To narrow this authority by limiting the definition of “intelligence sources” to sources to which the CIA had to guarantee confidentiality in order to obtain the information not only contravenes Congress’ express intention but also overlooks the practical necessities of modern intelligence gathering. Pp. 471 U. S. 166-173.
2. MKULTRA researchers are protected “intelligence sources” within § 102(d)(3)’s broad meaning, because they provided, or were engaged to provide, information that the CIA needed to fulfill its statutory obligations with respect to foreign intelligence. To force the CIA to disclose a source whenever a court determines, after the fact, that the CIA could have obtained the kind of information supplied without promising confidentiality, could have a devastating impact on the CIA’s ability to carry out its statutory mission. The record establishes that the MKULTRA researchers did in fact provide the CIA with information related to its intelligence function, and therefore the Director was authorized to withhold these researchers’ identities from disclosure under the FOIA. Pp. 471 U. S. 173-177.
3. The FOIA does not require the Director to disclose the institutional affiliations of the exempt researchers. This conclusion is supported by the record. The Director reasonably concluded that an observer who is knowledgeable about a particular intelligence research project, such as MKULTRA, could, upon learning that the research was performed at a certain institution, deduce the identities of the protected individual researchers. Pp. 471 U. S. 177-181.
228 U.S.App.D.C. 269, 709 F.2d 95, affirmed in part and reversed in part.
Page 471 U. S. 161
BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, REHNQUIST, STEVENS, and O’CONNOR, JJ., joined. MARSHALL, J., filed an opinion concurring in the result, in which BRENNAN, J., joined, post, p. 471 U. S. 181.
III. Sims v. CIA
Sims
v.
Central Intelligence Agency
United States Court of Appeals, District of Columbia CircuitSep 29, 1980
642 F.2d 562 (D.C. Cir. 1980)
J. SKELLY WRIGHT, Chief Judge:
This appeal presents two issues concerning the obligations of the Central Intelligence Agency (CIA) under the Freedom of Information Act (FOIA). In response to a citizen request for the names of persons and institutions who conducted scientific and behavioral research under contracts with or funded by the CIA, the Agency asserts two statutory exemptions from the disclosure requirements of the FOIA. Invoking Exemption 3, the Agency claims that the requested material is “specifically exempted from disclosure” by the terms of the National Security Act. The Agency also cites Exemption 6, which shields “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]” The District Court denied the applicability of either exemption to the facts in issue and granted summary judgment to the appellees who requested the documents. In reviewing the District Court’s analysis of the issue presented under Exemption 3, we are unable to conclude that the court reached its decision through application of the proper legal standard. We therefore remand the case for additional proceedings. With regard to Exemption 6, the decision of the District Court is affirmed, although, as explained below, we differ with the court’s analysis of the issue presented.
5 U.S.C. § 552 (1976).
5 U.S.C. § 552(b)(3) (1976). Exemption 3 authorizes withholding of documents that concern matters “specifically exempted by statute” from the disclosure requirements of the FOIA. See text at note 30 infra (quoting provision in full).
National Security Act of 1947, ch. 343, 61 Stat. 496 (1947) (codified in scattered sections of 5 50 U.S.C.). The Agency relies on § 102(d)(3) of the Act, 50 U.S.C. § 403(d)(3) (1976), which authorizes the Director of Central Intelligence to protect “intelligence sources and methods from unauthorized disclosure[.]” The CIA argues that the persons and institutions who conducted the research involved in this case are “intelligence sources” within the meaning of the statute.
5 U.S.C. § 552(b)(6) (1976).
The opinion of the District Court, as amended August 13, 1979, is reported at 479 F.Supp. 84 (D.D.C. 1979).
I. FACTS AND PROCEDURAL BACKGROUND
A. Facts
Between 1953 and 1966 the CIA sponsored extensive research concerning “chemical, biological, and radiological materials capable of employment in clandestine operations to control human behavior.” Code-named MKULTRA, the CIA’s research program included 149 subprojects undertaken on a contract basis. CIA records document the participation of at least 80 institutions and 185 researchers. Because the CIA funded MKULTRA largely through a front organization, many of the participating individuals and institutions apparently had no knowledge of their involvement with the Agency.
Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, S. Rep. No. 94-755, 94th Cong., 2d Sess., Book I at 389 (1976) (footnote omitted) (hereinafter cited as “Church Committee Final Report”).
Brief for appellants at 10.
Brief for appellants at 10.
On the basis of available documents, it appears that the CIA originally conceived MKULTRA as a defensive response to possible use by the Soviets and the Chinese of chemical and biological agents as instruments of interrogation and brainwashing. Later, however, the Agency expanded the scope of the program to include efforts to develop chemical and biological agents for use by the CIA. At least some of the subprojects tested chemical and biological substances by administering them to human subjects. Some of the subjects volunteered for their experimental role. Others were unwitting participants, who may never have known what happened to them. At least two persons died as the result of MKULTRA experiments. The extent of possible damage to the health of others remains unknown, because CIA records fail to disclose the identities of all experimental subjects.
For an account of MKULTRA research and abuses, see generally Church Committee Final Report, supra note 6, at 385-422, 471-472, reprinted in Addendum to Brief for Appellant at 12-51; Joint Hearings Before the Senate Committee on Intelligence and the Subcommittee on Health and Scientific Research of the Senate Committee on Human Resources, “Project MKULTRA, The CIA’s Program of Research in Behavioral Modification,” 95th Cong., 1st Sess. (Aug. 3, 1977) (hereinafter cited as “Joint Hearings”); Report to the President by the Commission on CIA Activities Within the United States 226-228 (1975) (hereinafter cited as “Rockefeller Commission Report”).
The abuses associated with MKULTRA achieved broad publicity as a result of investigations and published reports by an executive commission chaired by Vice President Nelson Rockefeller and a congressional committee led by Senator Frank Church. Nonetheless, the details of the project’s history remain mysterious. At the direction of then Director Richard Helms, the CIA destroyed most of its substantive records pertaining to the project in 1973. Investigative efforts therefore depended largely on oral testimony. In 1977, however, the Agency located some 8,000 pages of previously undisclosed documents related to the project. Consisting mostly of fiscal and financial records, the new material had escaped the search of the archivists who conducted the earlier purge. In addition to general descriptions of 149 subprojects, the new documents contained the names of persons and institutions who had contracted to undertake research.
The Rockefeller Commission Report, supra note 9, was completed in 1975.
The Church Committee Final Report, supra note 6, was compiled prior to the discovery by the CIA of the documents that are the subject of the present FOIA request. Those documents were, however, made available to the Joint Senate Committee comprised of the Senate Select Committee on Intelligence and the Sub-committee on Health and Scientific Research of the Senate Committee on Human Resources, See Joint Hearings, supra note 9.
Brief for appellants at 12.
Upon discovery of the project data, CIA Director Stansfield Turner notified the Senate Select Committee on Intelligence, and he testified at a joint hearing of the Select Committee on Intelligence and the Subcommittee on Health and Scientific Research of the Senate Committee on Human Resources. The CIA subsequently provided the Joint Committee first with summary reports and then with copies of the documents themselves. Although the CIA’s records listed participating researchers and institutions, Admiral Turner requested that the Committee treat the names as confidential. The Committee has honored this request.
B. FOIA Request and Litigation
In a letter dated August 22, 1977, following the conclusion of congressional hearings, John C. Sims and Dr. Sidney M. Wolfe — respectively an attorney and a physician employed by the Nader group Public Citizen — filed a request under the Freedom of Information Act for a list of the names of institutions and researchers who had conducted research under the MKULTRA program, as revealed in any existing MKULTRA documents. According to submissions filed with the court by the CIA, the documents within the scope of the appellees’ request contain a total of 265 names: the names of 80 institutions and 185 individual researchers. Upon receipt of the document request, the CIA contacted each of the 80 institutions to ask if they would consent to disclosure of their identities. The Agency made no parallel effort to communicate with the individual researchers. Of the 80 institutions, 59 agreed to disclosure. Their names were revealed to appellees on June 13, 1978. The Agency has also permitted appellees to examine the surviving financial records for the MKULTRA subprojects undertaken by the other persons and institutions, but with their names deleted. In other words, the CIA continues to withhold the names of the 21 research institutions that declined to authorize release of their identities as well as the names of all of the 185 individual researchers listed in MKULTRA files. Dissatisfied with the extent of the information provided to them, appellees brought this FOIA action on November 30, 1978.
Although the FOIA imposes no burden of justification, appellees Sims and Wolfe have argued that only by identifying and approaching individual researchers would it be possible to discover information of great public interest: the scope of MKULTRA experimentation, the substantive findings of the research, the side effects of various drugs, and the identities of experimental subjects. Brief for appellees at 26-28.
In a memorandum opinion dated April 12, 1979 the District Court held that the institutions and researchers did not, as asserted by the CIA, qualify for withholding under Exemption 3 because they did not constitute “intelligence sources” within the meaning of 50 U.S.C. § 403(d)(3). With regard to the Exemption 6 argument, the court requested that the parties submit supplemental memoranda on the relevance of possible express or implied promises by the CIA to maintain the confidentiality of the researchers whose work it had funded. The court also asked the CIA to draft letters to the researchers and institutions soliciting their understandings of Agency obligations to maintain secrecy. On May 14, 1979 the CIA submitted a further memorandum, an affidavit by Admiral Turner, and a draft of a form letter suitable for mailing to individual researchers. But the Agency declined to assert reliance on a contract theory as its basis for withholding, and it reargued its position that the involved institutions and researchers should be considered “intelligence sources” as a matter of law. In an opinion of August 7, 1979 Judge Oberdorfer rejected both defenses. The court adhered to its prior holding that the institutions and researchers did not constitute “intelligence sources” because the Agency had not shown that “its decision to treat the MK-ULTRA institutions and researchers as “intelligence sources’ under § 403(d)(3) is not an overbroad application of the term, too susceptible to administrative discretion to pass muster under [FOIA Exemption] (b)(3).” Regarding Exemption 6, the court determined that it could not accept the position of the Agency without additional information as to whether “any researcher had any reasonable expectation that his or her participation would be anonymous, as to whether any researcher has any other privacy interests which might be compromised by disclosure * * * or whether any researcher has any other objection or reason for objection to disclosure of his or her name.” Judge Oberdorfer again invited the CIA to communicate with the individual researchers and apprise the court of their responses by October 1, 1979. The court also gave the Agency additional time to reconsider its decision not to rely on Exemption 1 to the FOIA, which authorizes withholding of documents that are properly classified in order to protect national security interests in defense or foreign policy. The CIA chose not to pursue the suggestions of the District Court. The Agency adhered to its view that its Exemption 6 claim required no communication with the individual researchers, and it filed no papers asserting that the names in issue could properly be classified to protect the national security under Exemption 1. A final judgment ordering disclosure of the researchers’ names was entered on November 30, 1979. This appeal ensued.
The opinion is printed in the Appendix (App.) at 81-85.
App. 84.
Id.
Reprinted in App. at 88-97.
Sims v. CIA, 479 F.Supp. 84 (D. D.C. 1979) (as amended Aug. 13, 1979).
Id. at 87.
Id. at 89.
Exemption 1, 5 U.S.C. § 552(b)(1) (1976), immunizes from compulsory disclosure matters that are:
(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order[.]
Executive Order 12065, 43 Fed.Reg. 28949 (July 3, 1978), currently permits classification of information within three categories:
1-102. “Top Secret” shall be applied only to information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security.
1-103. “Secret” shall be applied only to information, the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security.
1-104. “Confidential” shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause identifiable damage to the national security.
Id. at 28950, §§ 1-102-1-104. The court’s invitation to the CIA to cite Exemption 1 could scarcely have been more explicit:
The Court also notes that the policy objectives which concern the Director might very well be accommodated by classifying the lists of names of institutions and researchers pursuant to Executive Order 12065, so that the lists would be exempt from disclosure by 5 U.S.C. § 552(b)(1). In fact, the lists were once so classified, but the defendant has since elected to declassify them so that they are not now exempt under (b)(1). Nothing in the Court’s ruling that (b)(3) is inapplicable to the lists here at issue is intended to foreclose (or approve) new classification of the lists and resort to section (b)(1) in order to protect any commitment to anonymity made by defendants to any institution or researchers. The effective date of the accompanying order has been set forward to October 1, 1979 in order to permit the defendant to reexamine and act on the possibility of classifying the names of institutions and researchers which would otherwise be disclosable and to amend the motion and opposition to invoke (b)(1), if it should elect to do so.
Sims v. CIA, supra note 18, 479 F.Supp. at 88 (footnote omitted).
Defendant’s Response to Plaintiffs’ Motion for Issuance of a Final Order, App. at 113, 114-115 (Nov. 27, 1979).
Reprinted in App. at 117.
II. FREEDOM OF INFORMATION ACT
The Freedom of Information Act, under which this case arises, prescribes with unmistakable clarity the role of the courts in evaluating agency claims of exemption. The basic policy of the Act is to compel disclosure. The burden is always on the agency to support any claim of a right to withhold, 5 U.S.C. § 552(a)(3) (1976), and the courts are authorized to undertake de novo review of agency constructions of applicable statutes and of agency determinations that particular records fall within exemption classifications. Id.
Courts were given authority to review de novo any denial of access “in order that the ultimate decision as to the propriety of the agency’s action is made by the court and [to] prevent [review] from becoming meaningless judicial sanctioning of agency discretion.” S. Rep. No. 813, 89th Cong., 1st Sess. 8 (1965).
In weighing claims asserted by an agency as intimately connected with national security as the CIA, courts may feel a natural disposition to proceed with some deference. Even in this delicate context, however, Congress has indicated that the basic FOIA policy of maximum disclosure must be enforced in appropriate cases by the courts.
Congress specifically addressed this issue when it overrode President Ford’s veto to pass the 1974 Amendment authorizing de novo review of agency classification decisions in national security cases. The legislative history of this provision, which became 5 U.S.C. § 552(b)(1), is extensively rehearsed in Ray v. Turner, 587 F.2d 1187, 1206-1214 (D.C. Cir. 1978) (Wright, C. J., concurring).
Two amendments to the Freedom of Information Act, both adopted in response to deferential decisions by the Supreme Court, clearly signal congressional intent concerning the judicial role. The first amendment responded to EPA v. Mink, 410 U.S. 73, 81-84, 93 S.Ct. 827, 833-34, 35 L.Ed.2d 119 (1973), in which the Court affirmed nondisclosure under Exemption 1, the “national security” exemption to the FOIA, solely on the basis of an agency affidavit. Exemption 1 then covered matters “specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy,” and the Court construed the provision as withholding judicial authority to test the propriety of executive classifications. Within two years Congress reversed Mink by legislation. As modified, Exemption 1 now requires that, in order to qualify for the exemption, information must “in fact [be] properly classified pursuant to * * * Executive order.” Its terms thus demand judicial determination of the relation of various documents to the national security and, accordingly, review of agency records in order for courts to determine the propriety of classification.
5 U.S.C. § 552(b)(1) (1970).
5 U.S.C. § 552(b)(1) (1976).
5 U.S.C. § 552(a)(4)(B) (1976).
Congress moved similarly to nullify the decision rendered by the Supreme Court in FAA Administrator v. Robertson, 422 U.S. 255, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975). Exemption 3 originally applied to any “matters specifically exempted from disclosure by statute.” After the Robertson Court held that this language encompassed a statute granting broad agency discretion to determine whether information should be withheld, Congress, concerned that the Court’s construction threatened the purposes of the FOIA, quickly amended the Act. Exemption 3 now authorizes nondisclosure of matters “specifically exempted from disclosure by statute” only where the exempting provision either “(A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld[.]”
5 U.S.C. § 552(b)(3) (1970).
5 U.S.C. § 552(b)(3) (1976).
In the case at bar the CIA rests its claim of a right to withhold, as it must, on specific exemptions provided by the FOIA. The CIA is not exempt from the FOIA. Congress has determined that the requirements of national security are satisfied by the specific structure of exemptions created by statute.
Within the statutory framework the CIA is entitled to rely on any or all of the nine FOIA exemptions. In previous cases brought before this court the Agency has relied most frequently on Exemption 1, pertaining to matters classified in order to protect the national security. But the CIA is not limited to that exemption, or required to invoke it in a particular case. It has chosen not to invoke it in this one.
See, e. g., Ray v. Turner, supra note 25; Phillippi v. CIA, 546 F.2d 1109 (D.C. Cir. 1976).
Denial of protection claimed for documents under one exemption does not, of course, mean that the same or similar material would not be exemption from disclosure if another exemption were invoked and its procedures properly satisfied. But the burden is always on the agency to justify non-disclosure under the terms of the specific exemption or exemptions that it claims. In this case the CIA has based its claim on two exemptions from among the nine: the Exemption 3 exception for matters specifically protected by statute and the Exemption 6 shield for personnel and similar files.
III. EXEMPTION 3
A. Issue Presented
This court has held consistently that Section 102(d)(3) of the National Security Act of 1947, 50 U.S.C. § 403(d)(3) (1976), which authorizes the Director of Central Intelligence to protect “intelligence sources and methods” from unauthorized disclosure, “establishes particular criteria for withholding or refers to particular types of matters to be withheld” and thus qualifies as a withholding statute under Exemption 3. E.g., Goland v. CIA, 607 F.2d 339, 350 (D.C. Cir. 1978), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980); Marks v. CIA, 590 F.2d 997 (D.C. Cir. 1978). Our Section 403(d)(3) cases have mostly involved questions of the degree of factual specificity a CIA affidavit must attain in order to enable a court to determine that particular documents come within its terms. E.g., Goland v. CIA, supra, 607 F.2d at 351; Ray v. Turner, 587 F.2d 1187, 1196-1197 (D.C. Cir. 1978). Other cases have considered the conditions under which a court should undertake de novo review of the accuracy of facts alleged in a CIA affidavit claiming a right to withhold under Exemption 3. E.g., Ray v. Turner, supra, 387 F.2d at 1194-1195; Weissman v. CIA, 565 F.2d 692 (D.C. Cir. 1977). Never, however, have we undertaken expressly to construe the term “intelligence sources and methods.” We have simply assumed the phrase to have a plain meaning. The question of statutory construction presented by this case is therefore one of first impression, in which there is little precedent to guide us. We must determine, or provide guidelines for determining, whether the researchers and institutions whose names the CIA seeks to withhold constitute “intelligence sources” within the meaning of Section 403(d)(3).
The Agency makes no claim that any of the information here in issue must be withheld in order to protect intelligence “methods.”
Although we have never before been asked to construe this term, our cases make clear the guidelines within which construction of exempting statutes under Exemption 3 must proceed. “The words of the statute and the relevant precedents establish the kinds of matters that are exempt and any necessary procedural steps that are required for exemption.” Ray v. Turner, supra, 587 F.2d at 1214 (Wright, C.J., concurring). Moreover, we must take care that terms susceptible of expansive interpretation are construed “with sensitivity to the `hazard[s] that Congress foresaw.'” Founding Church of Scientology v. Nat’l Security Agency, 610 F.2d 824, 829 (D.C. Cir. 1979) (brackets in original), quoting American Jewish Congress v. Kreps, 574 F.2d 624, 629 (D.C. Cir. 1978). In order to carry out “Congress’ intent to close the loophole created in Robertson,” Founding Church of Scientology v. Nat’l Security Agency, supra, 610 F.2d at 829, quoting Ray v. Turner, supra, 587 F.2d at 1220 (Wright, C.J., concurring), courts must guard against expansion of the “particular types of matters” Congress has exempted from disclosure in a way that would create broad agency discretion of the very type that Congress sought to eliminate.
Because the term “intelligence methods and sources” appears in the text of the National Security Act, it is appropriate for us to begin our analysis with the construction proposed by the CIA, an agency chartered by that statute and charged with major responsibility for its administration. See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 431, 95 S.Ct. 2362, 2378, 45 L.Ed.2d 280 (1975); Skidmore v. Swift, 323 U.S. 134, 138-140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944). But we must not shrink from the responsibility vested in us by Congress. The question presented is one of law reserved ultimately to our determination.
B. CIA Interpretation
On this appeal the CIA argues for a standard under which the term “intelligence source” is defined to mean “any individual, entity or medium that is engaged to provide, or in fact provides, the CIA with substantive information having a rational relation to the nation’s external national security.” The Agency candidly concedes that this is a broad definition, which would apply even to periodicals — including Pravda and the New York Times — from which it culls information that informs its view of foreign nations and their policy intentions.
Brief for appellants at 24.
See reply brief for appellants at 5.
The CIA supports its construction of the National Security Act primarily through an appeal to policy considerations. The Agency argues that the complexity of its mission makes necessary an expansive definition broad enough to encompass those who give assistance to clandestine agents and those who develop intelligence devices and techniques on which agents rely, even if they do not themselves provide the CIA directly with information about foreign governments. Noting that information about mind-altering drugs, like all research leading to development of investigative devices and technology, is rationally related to national security and threats thereto, the Agency worries that scientists may hesitate to undertake research for the Agency in the future, or that exposure of researchers’ identities might expose them to foreign surveillance or interference. The Agency also argues that its responsibilities include analysis as well as collection of secret information, and that it should not, consistent with the demands of national security, be compelled to make public the names of those persons and even those publications that it consults. Finally, the Agency insists that a standard weakening its power to withhold information in one area of its activities may cause persons associated with it in other areas to lose confidence in the Agency’s promises and hence to break contact with it.
See generally brief for appellants at 25-28; reply brief for appellants at 3-9.
C. The Statutory Context
In assessing the arguments proffered by the CIA we must be mindful that the “unmistakable thrust” of the Robertson amendment to the FOIA “is to assure that basic policy decisions on governmental secrecy be made by the Legislative rather than the Executive branch,” American Jewish Congress v. Kreps, supra, 574 F.2d at 628 n. 33; see Founding Church of Scientology v. Nat’l Security Agency, supra, 610 F.2d at 827-829, and that it is the responsibility of the courts under the FOIA “to insure that agencies do not impermissibly expand by unreviewed interpretations the `particular types of matters’ Congress has exempted from disclosure,” Ray v. Turner, supra, 587 F.2d at 1221 (Wright, C.J., concurring). Taking seriously the responsibilities vested in us by the Congress, we are unable to agree with the CIA that Congress intended the term “intelligence sources” to refer so broadly. Although the legislative history is sparse, the mosaic of relevant statutory enactments reflects Congress’ sensitivity to the need for discrimination in identifying particular types of matters exempted from disclosure. This sensitivity can be seen, not only in the Freedom of Information Act, but also in the relationship between the National Security Act and the Central Intelligence Agency Act — a relationship that belies the suggestion that Congress intended the term “intelligence sources” to receive an elastic construction in order to preserve vital secrets that would otherwise lack protection.
5 U.S.C. § 552 (1976).
National Security Act of 1947, ch. 343, 61 Stat. 496 (1947) (codified in scattered sections of 5 50 U.S.C.).
Central Intelligence Agency Act of 1949, ch. 227, § 1, 63 Stat. 208 (1949) (codified at 50 U.S.C. §§ 403a- 403j (1976).
The principal purpose of Congress in enacting the National Security Act of 1947, in which Section 403(d)(3) appears, was to unify the armed forces under a single Secretary of Defense. As part of an overall effort “to provide for the establishment of integrated policies and procedures for the departments, agencies, and functions of the Government relating to national security[,]” the Act created the National Security Council and the Central Intelligence Agency. The statute vests in the CIA responsibility for correlating and evaluating intelligence generated, not only through its own facilities, but also through those of other government agencies. It then states, without further elucidation or definition of terms, that “the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure[.]”
National Security Act of 1947 § 2, 50 U.S.C. § 401 (1976).
National Security Act § 102(d), 50 U.S.C. § 403(d) (1976), recites the powers and duties of the CIA as follows:
For the purpose of coordinating the intelligence activities of the several Government departments and agencies in the interest of national security, it shall be the duty of the Agency, under the direction of the National Security Council —
(1) to advise the National Security Council in matters concerning such intelligence activities of the Government departments and agencies as relate to national security;
(2) to make recommendations to the National Security Council for the coordination of such intelligence activities of the departments and agencies of the Government as relate to the national security;
(3) to correlate and evaluate intelligence relating to the national security, and provide for the appropriate dissemination of such intelligence within the Government using where appropriate existing agencies and facilities: Provided, That the Agency shall have no police, subpena, law-enforcement powers, or internal-security functions: Provided further, That the departments and other agencies of the Government shall continue to collect, evaluate, correlate, and disseminate departmental intelligence: And provided further, That the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure;
(4) to perform, for the benefit of the existing intelligence agencies, such additional services of common concern as the National Security Council determines can be more efficiently accomplished centrally;
(5) to perform such other functions and duties related to intelligence affecting the national security as the National Security Council may from time to time direct.
In the context, the phrase “intelligence sources and methods” is ambiguous. It would support the CIA’s construction that the identity of anyone providing information rationally related to national security is ipso facto protected. Yet the Act’s underlying purpose of safeguarding national security gives equal plausibility to the inference that persons are intended to be regarded as protected intelligence sources only if nondisclosure of their identities would itself be justifiable on national security grounds — the construction probably most compatible with the position of appellees on this appeal.
Against this background, the Central Intelligence Agency Act of 1949, and particularly Section 7 of that Act, 50 U.S.C. § 403g (1976), assumes some significance. As it appears in the United States Code, Section 403g, “in order further to implement the [protection of intelligence sources] proviso of section 403(d)(3),” recites in greater detail specific kinds of information that are statutorily exempt from disclosure: “[T]he Agency shall be exempted from the provisions * * * of any * * * law[s] which require the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency[.]”
50 U.S.C. § 403g (1976).
We believe the specificity of Section 403g is important to this case for two reasons. First, it suggests that the parade of horribles feared by the CIA if its definition is not accepted would simply not occur. Section 403g provides specific protection for most of the CIA activities and contractual relationships about which the Agency has expressed greatest concern. This conclusion is strengthened by the fact that the Agency may always — though it has not chosen to do so in this case — invoke Exemption 1 to justify nondisclosure of any material it properly decides to classify in order to protect a specific interest in national security. Second, Section 403g evinces a congressional awareness that Section 403(d)(3) as originally written is not and was not intended to be endlessly expansive. Congress recognized that Section 403(d)(3) would require construction and interpretation limiting executive discretion to withhold; otherwise it would have felt no need to “implement” the original proviso by listing the specific matters exempted from disclosure under Section 403g.
As a result of congressional action the meaning of “intelligence sources” in Section 403(d)(3) unambiguously encompasses all classes of persons and entities within the listing of Section 403g. In order to preserve, yet also to limit, the range of matters additionally protected, we must look, in the absence of clear legislative history, to the congressionally mandated and valid purposes of the Central Intelligence Agency, whose effective functioning Congress sought in Section 403(d)(3) to promote.
In chartering the CIA Congress set out, not to protect secrecy as an end in itself, but to provide for effective collection and analysis of foreign intelligence pertinent to concerns of national security. Secrecy seems to have been a concern only insofar as it was pertinent to protection of the national security. Analysis should therefore focus on the practical necessity of secrecy. In order to avoid an overbroad discretionary standard, see Founding Church of Scientology v. Nat’l Security Agency, supra, 610 F.2d at 829, yet at the same time to protect the underlying concerns of Congress, Section 403(d)(3) must be interpreted in functional terms: an “intelligence source” is a person or institution that provides, has provided, or has been engaged to provide the CIA with information of a kind the Agency needs to perform its intelligence function effectively, yet could not reasonably expect to obtain without guaranteeing the confidentiality of those who provide it.
D. Issues on Remand
Application of this standard will entail a number of complex determinations for which this case must be remanded to the District Court. Conceptually distinct, yet implicating similar if not identical factual concerns, these include definition of the class or “kind” of information involved and assessment of the likelihood that disclosure would undermine CIA access to information of that kind.
The inquiries requisite to these determinations will be heavily factual, and, as an opinion by Judge Wilkey recently emphasized, courts should accord “substantial weight” to the factual allegations of the CIA in the area of national security. Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980). Congress intended no less, but also no more.
In amending the Freedom of Information Act to reverse the Mink case and to provide for de novo review in the District Courts of agency decisions to classify information under the national security exemption, Congress carefully considered the weight to which agency determinations were entitled. One proposal called for agency classifications in the national security context to be subject only to minimal judicial scrutiny: courts would be limited to determining whether there was a “reasonable basis” for the agency decision to withhold a document. Congress explicitly rejected this position. De novo review was provided in every case.
The bill reported by the Senate Judiciary Committee would have prescribed this standard. S. 2543, 93d Cong., 2d Sess. § (b)(2), reprinted in Staffs of Senate Committee on the Judiciary and House Committee on Government Operations, Freedom of Information Act and Amendments of 1974 (Pub.L. 93-502), Source Book: Legislative History, Texts, and Other Documents, at 282 (Committee Print 1975) (hereinafter cited as “Source Book”).
The “reasonable basis” language was deleted from the Senate bill pursuant to an amendment introduced by Senator Muskie. See 120 Cong.Rec. 17022-17032 (1974). Senator Ervin supported the Amendment with the following remarks:
The [unamended] bill provides that a court cannot reverse an agency even though it finds it was wrong in classifying the document as being one affecting national security, unless it further finds that the agency was not only wrong, but also unreasonably wrong.
Congressional intent emerges clearly from the report of the Conference Committee to which the “substantial weight” standard can be traced. The report recognized that “the Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects [ sic] might occur as a result of public exposure of a particular classified record.” Accordingly, it was “expect[ed] that Federal courts, in making de novo determinations in section 552(b)(1) cases under the Freedom of Information law, will accord substantial weight to an agency’s affidavit concerning the details of the classified status of the disputed record.” But the Conference Committee reiterated its intention to authorize de novo judicial decisions. And it specified that “[t]he burden remains on the Government under this law.”
S. Rep. No. 93-1200, 93d Cong., 2d Sess. 9 (1974). The Conference Committee explicitly rejected a proposal by President Ford to return to the “reasonable basis” standard of review. See letter from President Gerald R. Ford to Honorable William S. Moorehead, August 20, 1974, reprinted in Source Book, supra note 42, at 380.
S. Rep. No. 93-1200, supra note 44, at 12.
Id. at 9.
As the Halperin case illustrates, the “substantial weight” formula is most likely to assist the Government in meeting its burden when answering questions about the future effects of document disclosure on national security. As the court stated, a predictive statement “will always be speculative to some extent[.]” Halperin v. CIA, supra, 629 F.2d at 149. In holding the Government to the burden of justification imposed on it by Congress, courts should not require the impossible. On the other hand, there are other inquiries in which the CIA must stand on essentially the same footing as any other litigant. For example, final resolution of FOIA cases typically demands an application of law to fact. Once the facts are found, it may remain to be determined whether they fall within the exempting ambit of one or another statute. Construction of statutes is an area of special judicial competence. Agency interpretations should not, in this context, receive any more “substantial weight” than their intrinsic merit commands.
The Halperin case is again illustrative. One section of the court’s opinion settled the narrow point of law that private attorneys who work under contract for the CIA in matters pertaining to necessarily clandestine activities constitute “personnel employed by the Agency” whose names are exempt from disclosure under Exemption 3 and Section 403g. See id., 629 F.2d at 151. Before reaching this narrow legal conclusion the court, in other parts of its opinion, accorded substantial weight to the Agency’s assertion that disclosure of the names of such attorneys would lead to exposure of intelligence sources. Id., 629 F.2d at 147-150. But the court indicated no reliance on the Agency in determining the legal issue. It would be inappropriate for a court to abdicate any part of its responsibility to decide whether a factual showing of the likely consequences of disclosure should suffice to bring a particular document within the protective intent of a pertinent statute.
IV. EXEMPTION 6
Exemption 6 to the Freedom of Information Act authorizes withholding of “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]” In order for an agency to justify nondisclosure under this provision, the Government must carry each of three burdens. First, the agency must establish that the requested file is in fact appropriately classified as “personnel,” “medical,” or “similar.” Second, it must demonstrate that release of the information would violate substantial privacy interests of the person or persons involved. Finally, but only if the first two burdens are met, the statute prescribes a balancing test on which the agency must also prevail. In order to resist disclosure, the agency must show that the substantial interest in personal privacy is not outweighed by the public interest in disclosure. Dep’t of Air Force v. Rose, 425 U.S. 352, 373, 96 S.Ct. 1592, 1604, 48 L.Ed.2d 11 (1976); Getman v. NLRB, 450 F.2d 670, 674-677 (D.C. Cir. 1971).
5 U.S.C. § 552(b)(6) (1976). The CIA invokes Exemption 6 to protect the names of individual researchers, but makes no claim that the names of the institutions participating in MKULTRA could be withheld on that basis. Exemption 6 is applicable only to individuals. Nat’l Parks and Conservation Ass’n v. Kleppe, 547 F.2d 673, 685 n. 44 (D.C. Cir. 1976); Robertson v. Dep’t of Defense, 402 F.Supp. 1342, 1348 (D.D.C. 1975).
Although finding that a list of names of individual researchers comprised “similar files” under Exemption 6, the District Court rejected the Government’s claimed right to withhold by determining that the CIA had failed to satisfy the third requirement of nondisclosure. The court noted that the Agency had not supplied information the court deemed essential to accurate assessment of the privacy interests involved. And without such information the Government could not prevail on the balancing test.
Any ambiguity in the court’s opinion arises because the second and third inquiries are so intimately connected. Although the court’s conclusion that the public interest in disclosure outweighs the privacy interest in nondisclosure clearly assumes some weighing of the relevant privacy interest, it is unclear whether the District Court in this case decided the second issue — whether there was an invasion of personal privacy sufficiently deep and severe to qualify under any circumstances as “clearly unwarranted.” The court might merely have assumed the existence of such an interest arguendo and then found that interest to be overridden. See Sims v. CIA, supra note 18, 479 F.Supp. at 89.
Although the District Court held that the CIA had not provided adequate factual support for its claim to invoke Exemption 6, it invited the CIA to communicate with individual researchers to elicit “additional information as to whether any researcher has any reasonable expectation that his or her participation would be anonymous, as to whether any researcher has any other privacy interests which might be compromised by disclosure of participation in the project or whether any researcher has any other objection or reason for objection to disclosure of his or her name.” Id. Believing it possible that the CIA might somehow justify its Exemption 6 claim on the basis of facts developed from the suggested communications, the District Court deferred the effective date of its order to disclose for nearly two months to give the CIA time to elicit more facts and develop legal arguments based thereon. The CIA, however, chose not to communicate with the researchers. It merely repeated the legal theories urged earlier.
After the District Court rendered its decision in this case Judge Robinson’s opinion for this court in Board of Trade of City of Chicago v. Commodity Futures Trading Comm’n, 627 F.2d 392, 396-400 (D.C. Cir. 1980), has analyzed and clarified the features that a document must possess to meet the threshold, definitional requirements of a “similar” file under Exemption 6. Had Judge Oberdorfer had the benefit of this opinion, he might well have concluded, as we do, that the CIA records requested in this case cannot be considered “personnel and medical files [or] similar files” eligible for withholding.
Exemption 6 was intended by Congress to protect individuals from public disclosure of “intimate details of their lives, whether the disclosure be of personnel files, medical files, or other similar files.” Board of Trade of City of Chicago v. Commodity Futures Trading Comm’n, supra, 627 F.2d at 399, quoting Rural Housing Alliance v. U.S. Dep’t of Agriculture, 498 F.2d 73, 77 (D.C. Cir. 1974); see Robles v. EPA, 484 F.2d 843, 845 (4th Cir. 1973). Although the opinion in Rural Housing stated that the exemption “is phrased broadly to protect individuals from a wide range of embarrassing disclosures,” 498 F.2d at 77, the context makes clear the court’s recognition that the disclosures with which the statute is concerned are those involving matters of an intimate personal nature. Because of its intimate personal nature, information regarding “marital status, legitimacy of children, identity of fathers of children, medical condition, welfare payments, alcoholic consumption, family fights, reputation, and so on” falls within the ambit of Exemption 6. Id. By contrast, as Judge Robinson stated in the Chicago Board of Trade case, 627 F.2d at 399, the decisions of this court have established that information connected with professional relationships does not qualify for the exemption.
In Getman v. NLRB, supra, for example, we ordered disclosure of a list of names and addresses of persons eligible to vote in union representation elections, despite assertions that their privacy would be compromised. Although holding explicitly only that release would not constitute a clearly unwarranted invasion of privacy, we strongly suggested that the requested lists of names and addresses failed to qualify as “similar files.” “[T]he real thrust of Exemption (6),” we wrote, “is to guard against unnecessary disclosure of files of such agencies as the Veterans Administration or the Welfare Department or Selective Service or Bureau of Prisons * * *. The giving of names and addresses is a very much lower degree of disclosure[.]” 450 F.2d at 675.
In Getman we held that the law professors conducting an NLRB voting study were entitled to compel the NLRB to provide them with the names and addresses of employees eligible to vote in certain union elections. Because the avowed purpose of the professors was to telephone selected employees and ask them to submit to interviews, the court recognized that “disclosure does involve some invasion of privacy[.]” Getman v. NLRB, 450 F.2d 670, 675 (D.C. Cir. 1971). But we stressed that disclosure of the business connection between union and employee bared no intimately personal facts and left “any disclosure of information [that is] more personal * * * wholly consensual and within the control of the employee.” Id.
Board of Trade of City of Chicago v. Commodity Futures Trading Comm’n, supra, provides more direct authority. That case arose from an investigation by the Commodity Futures Trading Commission of the Board of Trade’s contract to operate a commodity futures market in Chicago. As part of its inquiry into the plywood futures contract the Commission solicited criticisms and suggestions from persons trading under the contract, at least some of whom responded with the understanding that their identities would be kept confidential. The Commission therefore asked the Board to respond to complaints and suggestions that it identified only as issuing from “trade sources.” Arguing that it could not assess the criticisms and suggestions without knowing their sources, the Board refused to respond until the names in question were released. The Commission still declined to reveal the names of its informants, and an FOIA action ensued. In an opinion by Judge Robinson this court concluded that Exemption 6 did not apply to the challenged records, due to their essentially business nature. There was present in the case a privacy interest, implicated “insofar as release of identifying details would expose the occupations of these sources, their relationship to the Board, and how they perceive the workings of the market enterprise from which they derive at least part of their livelihood.” 627 F.2d at 399. “But,” the court continued, “the fact remains that the withheld information associates these individuals with business of the Board, and not with any aspect of their personal lives. The interest in nondisclosure thus asserted is not in continued privacy of personal matters, but in anonymity * * * on purely commercial matters.” Id. at 399-400.
The Commodity Futures Trading Commission is an independent regulatory agency created by the Commodity Futures Trading Act of 1974. Commodity Exchange Act, 42 Stat. 998 (1922), as amended by the Commodity Futures Trading Commission Act of 1974, Pub.L. No. 93-463, 88 Stat. 1389, 7 U.S.C. § 1 et seq. (1976). To function lawfully as a futures contract market, a Board of Trade must meet certain standards as well as comply with Commission guidelines. The Commission periodically conducts investigations to determine whether all requirements are being satisfied.
We adhere to the analysis of Exemption 6 developed in the Chicago Board of Trade case. Exemption 6 was developed to protect intimate details of personal and family life, not business judgments and relationships. Surely it was not intended to shield matters of such clear public concern as the names of those entering into contracts with the federal government.
To support its claim to invoke Exemption 6 the CIA relies principally on Dep’t of Air Force v. Rose, supra, a case in which the Supreme Court ordered release of files summarizing disciplinary proceedings against cadets at the Air Force Academy but approved deletion of individual names therein. In holding that records of disciplinary proceedings triggered the “similar files” provision of Exemption 6, the Court noted, among other factors, the possibility of “lifelong embarrassment” ensuing from disclosure. The CIA argues that the possibility of embarrassment to CIA researchers brings the records requested in the present case within the holding of Rose. We cannot agree.
Although the threat of embarrassment was a significant factor in Rose, see 425 U.S. at 376-377, 96 S.Ct. 1592 at 1606-07, 48 L.Ed.2d 11, the Court was also at pains to note that the records of the panels at the Air Force Academy involved judgments about matters that are intimate and personal in the highest degree — judgments of ethical propriety and individual honor. There was no implication that “embarrassment” alone would have sufficed to justify nondisclosure. Clearly Exemption 6 could not be invoked, under Rose, to protect the concerns of a contractor who would be embarrassed by disclosure of his responsibility for shoddy work. No more should it reach the names of those embarrassed by the nature of contract work they have undertaken.
The fact that an embarrassing disclosure might have costly business consequences was implicitly held to be irrelevent in Board of Trade of City of Chicago v. Commodity Futures Trading Comm’n, 627 F.2d 392, 400 (D.C. Cir. 1980).
Moreover, even if we were to reach the stage of weighing the privacy interest in nondisclosure and ultimately that of balancing, we would be compelled to agree with the District Court that the CIA has failed to justify nondisclosure. Eschewing suggestions by the District Court that it communicate with the individual researchers, the Agency has failed to particularize their objections to disclosure or to establish the likely consequences of disclosure in individual cases. In the absence of a more detailed and conclusive factual showing, we could hardly find that the Agency had shown an invasion of personal privacy so deep and severe as to count as “clearly unwarranted” when measured against the countervailing public interest in full disclosure. And in applying a statute whose language “instructs the court to tilt the balance in favor of disclosure,” Getman v. NLRB, supra, 450 F.2d at 674, we have to accord substantial weight to the claims of possible public profit. These include possible increases in public knowledge of specific experimental projects and possible identification of additional victims of drug testing.
See text following note 47 supra.
V. CONCLUSION
For the reasons stated herein, the judgment of the District Court must be vacated and the case remanded for further action not inconsistent with this opinion.
Vacated and remanded.
* * * * * *
Why not let the judge determine that question, because national security is information that affects national defense and our dealings with foreign countries? That is all it amounts to.
If a judge does not have enough sense to make that kind of judgment, he ought not to be a judge * * *.
Id. at 17030.
[56] MARKEY, Chief Judge, dissenting in part:
I join Chief Judge Wright’s typically lucid opinion for the court, dissenting, with utmost respect, only from the conclusion that a remand in respect of Exemption 3 is either necessary or advisable.
Three years is enough. Plaintiffs filed their request in August, 1977. After more than a year of delay, they filed suit in November, 1978. After a year of litigation, they prevailed in 1979. It is now September, 1980. The information sought is at least 14 years old. Absent some imperative, plaintiffs should not be forced to return for further litigation in the district court.
I agree that courts, while shirking none of their statutory responsibilities under FOIA, should approach with sheathed swords when our nation’s security is involved. The CIA is not the EPA or the FAA. Here, however, the Agency has specifically declined to refuse disclosure on national security grounds.
Indeed, the Agency has declined and disdained the deference-in-depth shown it by the district court. It has elected to confront the courts with a broad interpretation of Exemption 3, declining the district court’s grant of additional time to consider Exemption 1, to assert a contract theory, to contact the researchers, and to show facts indicating that its interpretation of “intelligence sources” as here applied is not so overbroad as to amount to untrammeled agency discretion. Before us, the Agency presents policy questions more properly presented to the Congress. The resulting impression is one of noblesse oblige. It does the Agency no injustice to remark that one who appears to have thrown down a gauntlet should not be surprised when it appears to have been picked up. The Agency’s implicit invitation to supply a usable definition of “intelligence source,” as that phrase is employed in Section 403(d)(3), has been well met in Chief Judge Wright’s opinion.
The clarity and applicability of that definition to the facts of record, coupled with the conduct of the Agency, prompt my view that remand is unnecessary and inadvisable.
It is true that neither the Agency in 1977, nor the district court in 1978, had the present definition available. Nonetheless, the differences between the definition here established and that employed by the Agency are not, in light of the record, such as to compel remand.
The present definition is broader in some senses and narrower in others. It is broader in substituting “provides, has provided, or has been engaged to provide” for the Agency’s “is engaged to provide, or in fact provides.” It is narrower in eliminating “medium,” and in supplanting the broad terms “substantive information” and “having a rational relation to the nation’s external national security” with a more usable “information of a kind the Agency needs to perform its intelligence function effectively.” It is narrower also in adding the eminently appropriate requirement that the information be of a kind the CIA “could not reasonably expect to obtain without guaranteeing the confidentiality of those who provide it.”
For convenience, the definitions are juxtaposed:
Present definition:
“[A]n `intelligence source’ is a person or institution that provides, has provided, or has been engaged to provide the CIA with information of a kind the Agency needs to perform its intelligence function effectively, yet could not reasonably expect to obtain without guaranteeing the confidentiality of those who provide it.”
The Agency’s definition:
“An `intelligence source’ generally is any individual, entity or medium that is engaged to provide, or in fact provides, the CIA with substantive information having a rational relation to the nation’s external national security.”
The Agency’s definition effectively reads “intelligence source” as “information source,” requiring protection of all sources of all information “rationally related” to national security. As the majority opinion makes clear, that sucks into secrecy’s maw too many sources of too many kinds of information. That the Agency’s definition is unacceptable, however, is not alone sufficient basis for remand here.
We deal here only with Exemption 3, not with Exemption 1. Considerations of national security may go beyond inquiries on whether a potential adversary may already have certain information, and may encompass inquiries on whether the adversary knows the Agency knows, whether the adversary may learn the Agency is interested in knowing, and, of course, whether the adversary may learn of the Agency’s source or sources of that certain information.
Application of the standard, that is, the majority’s definition, does not in my view require determinations “conceptually distinct” from those made by, or foreclosed by the Agency to, the district court. Further, I find the implicated factual concerns identical.
Presumably, remand is thought necessary to allow the Agency to show that the 21 institutions and 185 researchers provided “information of a kind the Agency needs to perform its intelligence function effectively, yet could not reasonably expect to obtain without guaranteeing the confidentiality of those who provide it.” But, as the record shows, the Agency has already established the “kind” of information here involved (research data on behavior modifying drugs). It has established its claimed need for the information, that is, to counter use of such drugs by potential adversaries and to develop its own capacity for their use. Whatever may be said of the wisdom or morality of the MKULTRA program and its operation, the Agency’s need for the research data “to perform its intelligence function effectively” has not been challenged on this record. Hence, a remand is unnecessary to prove that element of the standard.
That leaves only the question of whether the information was of a kind the Agency “could not reasonably expect to obtain without guaranteeing the confidentiality of those who provide it.” Yet proof of the answer to that question is precisely what the Agency has adamantly refused to seek or present, though the district court twice invited it to do so. The Agency effectively refused the district court’s request for evidence of express or implied confidentiality promises by the Agency. It declined the district court’s suggestion that it ask the researchers, in connection with Exemption 6, whether they even expected confidentiality. A remand to enable a party to do what it had specifically refused to do when initially before the district court, thereby allowing that party to force the conduct of piecemeal litigation, is in my view entirely inappropriate.
Further, what there is in the record on the subject indicates that the Agency had good reason for not attempting to prove the information unobtainable without a guarantee of confidentiality. From all that appears, the information was obtained without that guarantee, express or implied. The Agency dealt primarily through a front organization. If the Agency had promised confidentiality, explicitly or implicitly, it could have so established in the court below. That it did not, even in response to the court’s invitation, should be taken as evidence that it could not and cannot do so on remand.
Similarly, reclassification of the names, reliance on Exemption 1, or similar post-appeal actions in avoidance of disclosure by the Agency, would create an impression of playing fast and loose with the judicial process. With three years to consider reclassification, and more than two years to consider reliance before the courts on Exemption 1, the Agency may be presumed to have no sound basis for those actions. A contrary view would make the Agency appear to have engaged in judicial gamesmanship, holding back some defenses while it tries out others through an appeal, a practice not required to obtain a judicial pronouncement on the defenses asserted. The courts’ treatment here of two defenses could have easily included a third.
Though the “substantial weight” standard was initially phrased in relation to classified records and those here are declassified, it is not necessary to base a present refusal to remand on that ground. That the court in Halperin gave substantial weight to the Agency’s assertion respecting the effect of disclosure of the names of attorneys under contract for the CIA might have relevance if we were considering a “factual showing” of the effect of disclosure here. The district court and this court have here been denied that showing, though the Agency has had more than ample opportunity to make it and to rely on a “substantial weight” standard. If, as the majority correctly says, it would be “inappropriate for a court to abdicate any part of its responsibility to decide” when presented with such a factual showing, even in the face of a substantial weight standard, it would appear even more inappropriate for an appellate court to remand when the district court was specifically and unequivocally denied that showing.
The Agency has not here asserted that the institutions or researchers were working under a contract with the Agency or were otherwise “employees” under 50 U.S.C. § 403g (1976).
It is true that courts should not require the impossible, and that predictions of what others might do if the names here sought were disclosed are necessarily speculative, but the time for those considerations is in my view past. Moreover, nothing of record remotely hints that the Agency will be able to do any more than repeat the bald assertions already made, namely, that disclosure of these names will impede willingness of others to work with the Agency. Whether the public today perceives the Agency as a pariah is not established on the record, but the disclosure of the names of institutions and researchers who were under the impression that they were not working for the Agency cannot be assumed to impede a willingness of others to work for the Agency when asked to do so. Presumably, also, those employing the FOIA to obtain the names here sought do not intend to risk continued viability of the statute by unnecessarily exposing those institutions and researchers to public ridicule solely on the ground that they were caught up without their knowledge in MKULTRA.
Hence I cannot join the conclusion that the district court applied an improper legal standard to the Exemption 3 defense. That defense rested on the Agency’s definition of “intelligence sources.” The district court, viewing that definition as overbroad (a proper legal standard), held the defense inadequate. We do the same, on the same ground. That we also “provide guidelines” will be helpful to the Agency, to others, and to the interests of judicial economy in future cases. Where, however, as here, the Agency cannot meet those guidelines, indeed, declined to even try meeting them when the district court (in different words) invited that effort, I would not remand. I would affirm the district court’s judgment respecting Exemption 3.