(dissenting):
The foregoing opinion would treat this demand on the Central Intelligence Agency (CIA) for “all records” of a certain character “relating to the activities of the Glomar Explorer. . . . ” (App. 7) as though it were a normal request under the Freedom of Information Act (FOIA). But it is not. By statute the CIA is specifically exempt from “any other law” which would require it to disclose any of the “functions . of [its] personnel.” This is not a discretionary statute1 and the exemption is not from disclosure after some involved procedure, but is an exemption “from . . . the provisions of any other law” which would so require.
Appellant seeks to use the FOIA as the base for her demand but the disposition of her request is controlled by the specific provisions of the CIA statute. The Act establishing and controlling its operations provides that the CIA
shall be exempted from . . . the provisions of any other law which requires the publication or disclosure of the . functions ... of personnel employed by the Agency.2
The Freedom of Information Act recognizes this special statute when it provides that its general requirements that certain agencies make available to the public certain information:
does not apply to matters that are— ******
(3) specifically exempted from disclosure by statute.3
5 U.S.C. § 552(b)(1)(A).
Thus, when the foregoing opinion attempts to apply FOIA procedures to appellant’s request by its assertion: “It is clear the FOIA contemplates that the courts will resolve fundamental issues in contested cases on the basis of in camera examinations of the relevant documents,” p.-of 178 U.S.App.D.C., p. 1012 of 546 F.2d supra, it fails to recognize the “exempt” status of the Agency, created, not only by the FOIA which recognizes the special status of the CIA, but created primarily by its own separate special statute.
Since the CIA is thus specifically exempted from the FOIA by the Act creating it, the CIA need only assert this fact when it refuses “the publication or disclosure of the functions . . . .” etc.4 requested. Once the court determines that fact nothing further is necessary. As Justice Stewart said in his concurring opinion in FAA Administrator v. Robertson, 422 U.S. 255, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975), which involved a factual situation *1017less favorable to the exemption than the CIA statute:
[T]he only question “to be determined in a district court’s de novo inquiry is the factual existence of such a statute, regardless of how unwise, self-protective, or inadvertent the enactment might be.” EPA v. Mink, supra, [410 U.S. 73] at 95 n, [93 S.Ct. 827, at 840, 35 L.Ed.2d 119.]
422 U.S. at 270, 95 S.Ct. 2140, 2149. Justice Marshall also concurred in the opinion by Justice Stewart.
The procedural aspects of the Freedom of Information Act thus need not be complied with by the CIA because when the Act provides that the Agency is “exempted from the . . . provisions of any other law . . .,” etc.,5 it means the entire law.
In this case, it is clear that complying with appellant’s request could result in the “publication and disclosure of the . functions ” of the Agency in a highly secret activity definitely related to national security. That is precisely the type of information the Act was designed to protect.6 The information here requested from the Agency was plainly not information that it was required to publish or disclose. On the facts here present the Agency was permitted to rest on the showing made on the factual existence of the statute and it was not required to indulge in any elaborate procedure to over-prove the obvious.
FAA Administrator v. Robertson, supra, held that the Federal Aviation Administration, by virtue of the subsection (3) exemption of the Freedom of Information Act, was not required to comply with the demand that it produce certain Systems Worthiness Analysis Program Reports made by the airlines to the FAA as part of its safety program. Its claim of exemption was based on 49 U.S.C. § 1504 (1970), which provides:
Any person may make written objection to the public disclosure of information contained in any . . . report . filed pursuant to the [FAA Act] . Whenever such objection is made, the Board or Administrator shall order such information withheld from public disclosure when, in their judgment, a disclosure of such information would adversely affect the interests of such person and is not required in the interest of the public.
Robertson held that this discretionary statute satisfied the terms of subsection (3) of the FOIA.
Following the Robertson decision, the 94th Congress amended subsection (3) to read as follows:
(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (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 *1018particular types of matters to be withheld.
Pub.L. 94-409, § 5(b), 90 Stat. 1247 (Sept. 13, 1976).
This amendment does not become effective until 180 days after the date of its enactment, so it is not controlling here; but it is important to note because it plainly indicates that, even after it does .become effective, the CIA exemption will still continue. In fact, it will even be strengthened because exemption (3) will then specifically exempt from disclosure all matter in those instances where the
statute . . . requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue . . . .7
(Emphasis added). The CIA statute is such a statute because it is not couched in discretionary terms, but specifically “Ieave[s] no discretion” that
the Agency shall be exempted from . the provisions of any other law which require the . . . disclosure of the . . . functions ... of personnel employed by the Agency.
50 U.S.C. § 403g (1970).
That the present request would violate this statute, both as presently interpreted and as it would be interpreted after the 1976 amendment, is too clear to require further discussion. The CIA statute was designed specially to prevent what my colleagues’ opinion would require — disclosing top secret information in order to protect it from disclosure. It is sufficient that the agency has pointed to the applicable statute.
I respectfully dissent.
. 50 U.S.C. § 403g (1970) provides:
In the interests of the security of the foreign intelligence activities of the United States and in order further to implement the proviso of section 403(d)(3) of this title that the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure, the Agency shall be exempted from the provisions of section 654 of Title 5, and the provisions of any other law which require the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency: Provided, That in furtherance of this section, the Director of the Bureau of the Budget shall make no reports to the Congress in connection with the Agency under section 947(b) of Title 5.
. Id. (emphasis added).
. 5 U.S.C. § 552(b) (1970), as amended (Supp. V, 1975) provides:
(b) This section does not apply to matters that are—
(1) (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;
(2) related solely to the internal personnel rules and practices of an agency;
(3) specifically exempted from disclosure by statute. .
(Emphasis added). Subsection (b)(1)(A) also furnishes a ground for exemption in this case but that exemption is less broad and might involve a more elaborate showing than is required under subsection (b)(3).
. 50 U.S.C. § 403g (1970).
. Id.
. The Agency’s reply of May 21, 1975, denying appellant’s request stated:
Mr. Duckett has determined that, in the interest of national security, involvement by the U.S. Government in the activities which are the subject matter of your request can neither be confirmed nor denied. Therefore, he has determined that the fact of the existence or non-existence of any material or documents that may exist which would reveal any CIA connection or interest in the activities of the Glomar Explorer is duly classified Secret in accordance with criteria established by Executive Order 11652. Acknowledgement of the existence or non-existence of the information you request could reasonably be expected to result in the compromise of important intelligence operations and significant scientific and technological developments relating to the national security, and might also result in a disruption in foreign relations significantly affecting the national security.
(J.A.ll).
The complaint also asserted:
He [the Agency] further alleged that the fact of the existence or non-existence of such records would relate to information pertaining to intelligence sources and methods which the Director of Central Intelligence has the responsibility to protect from unauthorized disclosure in accordance with section 102(d)(3) of the National Security Act of 1947, 50 U.S.C. § 403(d)(3), and therefore such records fall within exemption 3 of the FOIA, 5 U.S.C. § 552(b)(3).
(J.A.14).
. It is not necessary here to discuss the applicability of (3)(B).