Hayden v. National Security Agency/Central Security Service

608 F.2d 1381, 197 U.S. App. D.C. 224
CourtCourt of Appeals for the D.C. Circuit
DecidedOctober 29, 1979
DocketNos. 78-1728, 78-1729
StatusPublished
Cited by391 cases

This text of 608 F.2d 1381 (Hayden v. National Security Agency/Central Security Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hayden v. National Security Agency/Central Security Service, 608 F.2d 1381, 197 U.S. App. D.C. 224 (D.C. Cir. 1979).

Opinion

Opinion for the Court filed by Circuit Judge WILKEY.

WILKEY, Circuit Judge:

This case raises a recurring problem in the Freedom of Information Act (FOIA), concerning the balance struck by Congress between the disclosure of information by government agencies and the need for secrecy in some operations vital to the national defense. Appellants challenge a district court order which granted summary judgment to the National Security Agency (NSA) on grounds that documents requested by appellants under the FOIA were exempt from disclosure. We find that the requested documents fall within two exemptions of the Freedom of Information Act, and thus U.S. District Judge Corcoran properly refused to order disclosure.

I. PROCEDURAL FACTS

Appellants Hayden and Fonda submitted FOIA requests to NSA for all materials pertaining to them that were in NSA’s possession. The Agency responded that it had located foreign intelligence reports referring to appellants, but it refused to disclose them because they were all classified in their entirety. After unsuccessfully appealing through the Agency, appellants each brought suit in United States District Court to compel disclosure. Their actions were consolidated at trial and on appeal.

The Agency filed an affidavit with the district court, explaining that the located materials had been obtained through NSA’s monitoring of foreign electromagnetic signals, and that disclosure of information from the materials would jeopardize this intelligence collection mission. Deeming this affidavit insufficiently detailed to satisfy the standards of Vaughn v. Rosen,1 the district court granted appellants’ motion for detailed itemization, indexing, and justification of nondisclosure.

The Agency responded to the motion with a supplemental affidavit and with a request to file classified affidavits in camera, claiming that further justification would require the use of evidence which was itself classified and sensitive. Upon approval from the court, NSA submitted a twenty-page affidavit, classified “Top Secret.” Appellants moved for partial summary judgment and for in camera review of the withheld documents with participation of their counsel under protective order. The Agency moved for summary judgment on the basis of its affidavits.

The district court granted judgment for NSA on the issue of release of the documents, without viewing them in camera. Relying on the twenty-page in camera affidavit, the court found the requested documents to be within FOIA Exemptions 1 and 3. The court did, however, order the Agency to disclose the number of documents and pages being withheld; from this order the Agency has not appealed. Appellants have [227]*227now appealed the grant of summary judgment to NSA.2

II. STANDARDS AND THEIR APPLICATION

In previous cases involving FOIA requests for classified documents this court has considered what procedures are appropriate for a trial court to use, in order to determine whether documents should be released. Despite some variation in emphasis on disclosure versus secrecy, these decisions have agreed upon certain guidelines for the exercise of judicial discretion concerning such FOIA requests. Though each will be discussed in greater detail, these standards are in summary as follows. (1) The trial court must make a de novo review of the agency’s classification decision, with the burden on the agency to justify nondisclosure.3 (2) In conducting this review, the court is to give “substantial weight” to affidavits from the agency.4 (3) The court is to require the agency to create as full a public record as possible, concerning the nature of the documents and the justification for nondisclosure.5 (4) If step (3) does not create a sufficient basis for making a decision, the court may accept classified affidavits in camera,6 or it may inspect the documents in camera. This step is at the court’s discretion, with certain guidelines discussed below.7 (5) The court should require release of reasonably segregable parts of documents that do not fall within FOIA exemptions.8

In the present case, Judge Corcoran demonstrated an understanding of these procedural standards and complied with them. We find no respect in which the court abused its discretion or made any error of law. The case does present some questions to which the answer is not perfectly obvious, however, and we will examine them in detail. These points concern facts and issues peculiar to this case, which have not been directly faced in our prior decisions, and issues on which the guidance of the earlier decisions is perhaps not entirely clear.

A. Sufficiency of Public Record

The limited nature of the public record in this case raises a question of its sufficiency under Vaughn v. Rosen. It is true that the public NSA affidavits do not include the itemization of documents and detailed justification of nondisclosure usually required under Vaughn. When the itemization and justification are themselves sensitive, however, to place them on public record could damage security in precisely the way that FOIA Exemption 1 is intended to prevent. Vaughn anticipated this problem by observing that the agency’s analysis on the public record ordinarily “would not have to contain factual descriptions that if made public [228]*228would compromise the secret nature of the information . . . .”9

The facts of this case present a situation where the district court could reasonably find that public itemization and detailed justification would compromise legitimate secrecy interests, thus making it appropriate to receive affidavits in camera rather than in public. The unique signals intelligence mission of NSA, succinctly described in its first public affidavit, explains why secrecy concerns are greater here than is usual in FOIA cases. In most other types of cases, a public Vaughn itemization does not compromise secrecy, because the contents of the requested documents are not thereby disclosed, and it is only the substantive content which is allegedly exempt from disclosure. But with respect to NSA’s signals intelligence operations, the sensitive material comprises more than just the substantive content of messages. Harm could follow from the disclosure of any material that might help to identify the communications intercepted by NSA, such as information about date, time, origin, or manner of transmission or receipt. Such information would be helpful for determining which channels or types of communication are being monitored by NSA. Indeed, NSA does not allege that the substancé of the communications is sensitive, except insofar as it helps identify which communications have been of interes't to NSA.'

In this light, we find that the district court created “as complete a public record as is possible,” 10 within the limits of possibility imposed by NSA’s peculiar circumstances. We recognize that a fuller public record could enhance the adversary process; 11 but it could also reveal sensitive information. This would violate Exemption 1, for its basic purpose is to ensure that the FOIA will not

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Bluebook (online)
608 F.2d 1381, 197 U.S. App. D.C. 224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hayden-v-national-security-agencycentral-security-service-cadc-1979.