In law professor's appeal of FOIA suit to compel Central Intelligence Agency to disclose their files about him, Seventh Circuit discusses exemptions dealing with intelligence disclosure and confirms that CIA is not obligated to disclose files under Freedom of Information Act and Privacy Act
Professor M. Cherif Bassiouni (plaintiff) is a prominent professor of international law, and head of DePaul University's International Human Rights Law Institute. In 1983, plaintiff asked the CIA to produce all documents in its possession that mention him. The CIA responded that it did have some, but refused to give details.
Plaintiff tried again in 1999, this time invoking the Freedom of Information Act (FOIA) and the Privacy Act. The CIA again gave the same answer. Plaintiff was dissatisfied with the CIA's refusal to describe and provide its internally generated documents or those received from sources other than the Department of State.
In his FOIA suit, the district court held that the CIA was under no duty to disclose the documents, and plaintiff appealed. The U.S. Court of Appeals for the Seventh Circuit, however, affirms.
As the Court explains: "Both the FOIA and the Privacy Act contain exceptions for classified information. 5 U.S.C. Section 552(b)(1) (FOIA); 5 U.S.C. Section 552a(k) (Privacy Act); (for Exemption 3, see Section 552(b)(3), which likewise covers properly classified documents in light of the National Security Act, 50 U.S.C. Section 403 ..., but we need not discuss it given exemption 1.). The Privacy Act also allows the CIA to exempt records in its possession by regulation. See 5 U.S.C. Section 552a(j)(1).
The Agency has used this authority, see 32 C.F.R. Section 1901.62 This leads [the plaintiff] to direct his fire against the CIA's invocation of exemptions to the FOIA. The Agency does not contend that the contents of all documents mentioning Bassiouni are classified; it could hardly do so, given not only that its refusal to identify which documents it holds but also the certainty that its files contain many U.N. reports, newspaper clippings, and other non-classified materials.
Instead, the Agency maintained that providing a list of the documents that mention [plaintiff] and claiming document-by-document exemptions for those whose contents are classified, would reveal details about intelligence-gathering methods. These methods are classified independently of the information in materials the CIA collects. See Executive Order 12958 Section 1.5( c), (d) ... (Since this suit began, Executive Order 13292, 68 Fed. Reg. 15315 (Mar. 28, 2003) has superseded E.O. 12958), but the substantive criteria pertinent to [plaintiff's] situation are unchanged. ...)" [Slip op. 2-3]
The problem here is that revelation of the information in the CIA files might reveal sensitive sources to other intelligence services. For instance, it might reveal a foreign source of information. In intelligence circles, "how" often indicates "from whom."
Even a Vaughn index of such documents (named after Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (1973)) can identify undercover agents. If [plaintiff] were to obtain such information, anybody could do so. Foreign spy services would be most interested to learn who the CIA's sources are.
"When a pattern of responses itself reveals classified information, the only way to keep secrets is to maintain silence uniformly. Today the agency's silence is called a "Glomar response,' taking its name from the Hughes Glomar Explorer, a ship built (we now know) to recover a sunken Soviet submarine, but disguised as a private vessel for mining manganese nodules from the ocean floor. ..."
"Every appellate court to address the issue has held that the FOIA permits the CIA to make a "Glomar response' when it fears that inference from Vaughn indexes or selective disclosure could reveal classified sources or methods of obtaining foreign intelligence." [Slip op. 6]
Moreover, the CIA did not waive any right to a Glomar response when it admitted that it did in fact have documents about plaintiff. "Perhaps it would be best to jettison the distinction between a "Glomar response' (refusing to acknowledge whether the CIA has even one responsive document) and a "no number, no list response' (acknowledging that the CIA has at least one responsive document but refusing to elaborate). Neither name has any magic; the statute and the executive order in combination, not the CIA's nomenclature, are dispositive. Because it is the details that could tip the agency's hand, they are what matter."
"From now on, a "Bassiouni response' could cover both situations, which are legally identical. Indeed, unless the CIA is willing to concede that its records system is like a roach motel " papers go in, but they don't come out " disclosure that the agency had some documents identifying a person in Year t does not imply that it still has them in Year t + n."
"The agency therefore could have made a flat Glomar response to Bassiouni's 1999 request. This shows that the Glomar response and the no number, no list response are functionally identical and implies that the verbal distinction should be eliminated, lest it confuse or mislead requesters and judges into thinking that something depends on the turn of the phrase." [Slip op. 8-9]
Finally, the Court rejects plaintiff's argument that Section 552a(e)(7) of the Privacy Act, requiring the agency to "maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual ... or [is] within the scope of an authorized law enforcement activity."
Plaintiff correctly points out that the CIA must not maintain such records, but this does not imply that it must disclose such records. If plaintiff had been interested in purging his files, he could have asked the district court to review the files in camera.
Citation: Bassiouni v. Central Intelligence Agency, 2004 WL 2805780; No. 04-2258 (7th Cir. Dec. 8, 2004).
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