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of certiorari was filed and granted, the stay was to continue in effect pending the judgment of the Court.
On December 11, 1981, the CIA filed its petition for a writ of certiorari in the Supreme Court, seeking review only of the lower courts' orders to disclose the six classified documents which had been the subject of the agency's cross-appeal in the circuit court. According to the petition, the questions presented for review were:
1. Whether the courts below properly rejected the Central Intelligence Agency's claim that portions of documents that could lead a knowledgeable reader to identify confidential intelligence sources and would reveal confidential information obtained as a consequence of a liaison arrangement with a foreign intelligence or security service are exempt from disclosure under Exemptions 1 and 3 of the Freedom of Information Act, 5 U.S.C. 552(b) (1) and (3).
2. Whether the district court complied with the requirements of the FOIA and showed appropriate deference for the constitutional responsibilities of the Executive Branch in matters of national security and foreign policy when it (a) refused to sustain the CIA's withholding of the documents on the basis of the representations in the public affidavit and document disposition index regarding the need to protect intelligence sources and a liaison relationship with a foreign intelligence or security service, and (b) rejected the CIA's offer to present in camera testimony to explain more fully the facts and justification for the withholding. [Petition for a Writ of Certiorari . . ., December
11, 1981, at I] The CIA argued that review was warranted for several reasons. First, the agency maintained, the lower court decisions, by ordering the release of classified national security materials for the first time under the FOIA, not only “jeopardize[d] the particular intelligence sources and liaison relationship involved; it substantially undermine[d] the ability of the CIA to assure the confidentiality of its intelligence services generally ." (Id. at 11) Second, the agency contended, the lower court decisions ran counter to Congress' recognition of the compelling need for maintaining the confidentiality of intelligence sources, as evidenced by the passage of legislation providing two separate exemptions from FOIA disclosure of such information. (See exemptions 1 and 3 of the FOIA, 5 U.S.C. $ 552(b) (1) and (3), and 50 U.S.C. $ 403(d)(3.) Third, the CIA argued, its public affidavits and document disposition indices were "more than sufficient" to sustain the withholding of the documents in question and the lower courts should not be permitted to substitute their judgment for that of the CIA on questions of national security. Moreover, the agency asserted, even if the district court felt the documents (and its own in camera review) were insufficient to sustain the exemption, "it was obligated to afford the CIA an opportunity to make an in camera submission to support its determination to withhold the documents before the court ordered the re lease of the information.” (Id. at 12]
Only then would the court be in the possession of all the
States v. Nixon, 418 U.S. 683, 710 (1974). [Id.] The CIA did not seek review of the appeals court holding that the 35 Congressionally-related documents and the 11 documents prepared by the CIA in connection with the Congressional investigation were "agency records,” not Congressional records outside the scope of the FOIA. It did state in a footnote, however, that:
Significant portions of these documents contain sensitive national security information or would, if released, reveal aspects of a congressional investigation the House of Representatives has not chosen to make public. The court of appeals remanded with express directions to the district court to consider the exemptions claimed by the CIA for the 11 CIA-generated documents (App. A, infra, 10a). It is unclear whether these express directions also apply to the 35 congressionally-generated documents. However that may be, we do not read the court of appeals' opinion to foreclose consideration of claims of exemption for these documents and thereby to require their immediate release. The court of appeals simply reversed the district court's order of summary judgment in favor of the CIA on another ground.
Moreover, the court of appeals has recognized that it would be especially inappropriate to foreclose the assertion of an exemption where necessary to protect national security information. See Jordan v. Department of Justice, 591 F. 2d 753, 780 (D.C. Cir. 1978) (en banc); see also Coastal States Gas Corp. v. Department of Energy, 644 F. 2d 969, 985 n.80(3rd Cir. 1981); cf. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 165 n.30(1975). The court of appeals also has recognized that similar considerations apply when personal privacy is at stake. Ryan v. Department of Justice, 617 F. 2d 781, 791-792 (D.C. Cir. 1980). We must assume that the court would show equal deference to congressionally generated documents that concern aspects of a congressional investigation that the House of Representatives has not chosen to make public (see United States Constitution,
Art. I, Section 5, Clause 3). (Id. 23-24, n. 17] On December 28, 1981, the Church filed a motion for a modification of the stay, noting that the petition for a writ of certiorari encompassed only the six national security documents and not the 35 Congressionally-related documents. Since a writ had not been filed with respect to the latter group of documents, the Church asked that the stay be dissolved insofar as they were concerned. The Chief Justice denied the motion two days later, and the Church subsequently refiled it with Justice Brennan on December 31, 1981. On January 18, 1982, the following order was entered by the Court:
The motion of respondent to modify the order entered by
tion for a writ of certiorari. On January 14, 1982, the Church filed its brief in opposition to the CIA's petition for a writ of certiorari, asserting that the petition should not be granted because the agency was asking the Court "to relieve it from the consequences of its remiss presentation of its case in the district court or to interpret the Freedom of Information Act in a manner which the Congress has purposefully rejected.” [Brief in Opposition, January 14, 1982, at 6] The brief summarized its argument as follows:
The district court thoroughly reviewed the CIA's claims of exemption, gave the full measure of deference to those claims and, in the interest of responsible de novo review, compared, first-hand, those claims with the documents at issue. Having examined the documents, the court held that, in minor aspect, the claims of exemption were overbroad. Subsequently, the court rejected the CIA's offer to upgrade its presentation in camera. These rulings were affirmed on appeal. Nothing in this situation creates a special or important reason for granting the writ of certiorari. Petitioner's philosophical reservations as to the advisability of the de novo standard of review for national security claims and as to the usefulness of the adversary system in resolving those claims are inappropriate for determination here and invite legislative rather than judicial action. [Id.
at 17] On February 12, 1982, the CIA filed a reply brief in which it termed the Church's arguments "an effort to divert attention from the cavalier manner in which the courts below disposed of a case raising serious national security concerns." (Reply Brief for Petitioners, February 12, 1982, at 2]
On February 18, 1982, the counsel for the Church filed a letter with the Court indicating that the Church was "permanently reced[ing] from its Freedom of Information Act request for the six documents" at issue in the petition for a writ of certiorari. (The letter noted, however, that the Church intended to pursue its request for the remaining documents involved in the litigation in the lower courts.)
On February 24, 1982, the Solicitor General, on behalf of the CIA, filed a letter with the Court responding to the Church's announcement that it was abandoning the case. The Solicitor General asked the Court to nonetheless vacate the judgment of the court of appeals insofar as it affirmed the decision of the district court requiring the disclosure of the six documents and to remand that aspect of the case with directions to dismiss as moot. The letter concluded that the court of appeals decision “seriously departs from established principles of FOIA litigation and should not be permitted to stand as precedent to be invoked by other litigants seeking national security documents."
On March 8, 1982, the Supreme Court granted the CIA's petition for a writ of certiorari, and (based on the representations in the February 18th letter from the counsel for the Church and the February 24th response from the Solicitor General) vacated the judgment of the court of appeals insofar as it affirmed the decision of the district court requiring the disclosure of the six documents at issue. [455 U.S. 997] The order also remanded the case to the court of appeals with directions that it instruct the district court to dismiss that aspect of the case as moot.
On July 19, 1982, the court of appeals issued an amended judgment based on the Supreme Court order and remanded the case to the district court.
On September 17, 1982, the Clerk of the House filed an amicus memorandum in the district court addressing the applicability of the Speech or Debate Clause to the records still at issue. The Clerk noted that the appeals court, in finding that the materials were not Congressional records exempt from disclosure under the FOIA, had at least tacitly indicated that the broader protection of the Clause might apply to such interagency communications which revealed the deliberations of Congress.
At the outset of his memorandum, the Clerk argued that although the documents sought had been found to be "agency records,” they in fact reflected the “deliberative and communicative process" of the Congress and were therefore privileged from disclosure. In this case, the Clerk maintained, the Congessional deliberations involved the investigation of Korean-American relations by the Subcommittee on International Organizations of the House Committee on International Relations. Since, as part of this investigation, the Subcommittee consulted with the CIA and other Executive branch departments, the documents at issue were exempt from disclosure under Exemption 5 of the FOIA (5 U.S.C. $ 552(b)(5)), the deliberative process exemption, the Clerk contended:
Thus the express purpose of the investigation into this matter authorized by the House of Representatives, of its nature required both formal and informal inquiries into a wide range of subjects and included contacts with many executive departments, among them the Central Intelligence Agency. The CIA was consulted because one of the legislative purposes of the investigation was to examine the interrelationships between the intelligence communities of Korea and the United States for the purpose of amending laws governing those relationships. Investigation of Korean-American Relations, Report of the Subcomm. on International Organizations of the House Comm. on Inter
national Relations, 95th Cong., 2d Sess. p. 116-117 (Comm.
as Amicus Curiae, September 17, 1982, at 7] Furthermore, said the Clerk, since the documents reflected the investigative and information gathering process of the Legislative branch they also came within the protective ambit of the Speech or Debate Clause.
The Clerk next argued that the Clause applied even in situations where the plaintiff was seeking material from third parties rather than Congress. For this proposition, the Clerk cited Tavoulareas v. The Washington Post, 93 F.R.D. 11 (D.D.C. 1981). (See page 434 of this report for a discussion of that case.) Further, said the Clerk, the case law also established that "the location of documents evidencing legislative acts does not permit litigants, be they plaintiffs, coordinate branches or FOIA requesters, from' probing the processes of the Congress through compelled disclosure." [id. at 12 (emphasis in original]
Finally, the Clerk argued that the Publication Clause of the U.S. Constitution 2 also barred disclosure of the records: "The final report of the Subcommittee extensively details the work of the investigation. To the extent that the Subcommittee determined not to publish or make available to the public the inter-branch communications sought by the requester, it exercised its constitutional right to keep those records secret-a decision which should not be overturned under the FOIA.” (Id. at 12-13]
On November 15, 1982, the CIA filed a motion for summary judgment with respect to the 41 documents still at issue in the case. (The 41 documents were comprised of 11 of the 15 documents the Church originally requested which were created by the CIA but which consisted of information complied in response to specific requests from Congress, and 30 of the 35 documents the Church originally requested which originated with committees of the House and which were transmitted to the CIA.) The CIA claimed that the documents had all been properly withheld under the various exemption provisions of the FOIA, specifically Exemptions 1, 3, 5, and 6 (5 U.S.C. § 552(b)(1), (3), (5), and (6)).
Initially, the CIA argued that its exemption claims with respect to the Congressionally-generated documents were properly before the court. When the case was first before the court, the CIA said, the agency did not assert that the documents were protected from release under specific FOIA exemptions, but rather claimed that the materials were Congressional records and were exempt vel non from release. Since the district court originally agreed with the CIA's characterization, the agency contended that it should be given the opportunity after the decision was reversed to raise the new exemption claims on remand. Moreover, since it was planning
2 The Publication Clause of the U.S. Constitution provides that "Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require secrecy ..." (art. I, § 5, cl. 3]