dissenting:
I respectfully submit that the court today departs from well-established principles in this circuit in order to sustain summary judgment for the Central Intelligence Agency (CIA). The court also adopts a restrictive definition of “agency records” that erodes the right to disclosure under the *357Freedom of Information Act1 (FOIA) and promotes secret law.
I. THE NEED FOR DISCOVERY IN FOIA CASES
Without discovery, a party to litigation may not have access to facts necessary to oppose" a motion for summary judgment. This problem is especially acute for plaintiffs in FOIA cases. Indeed, recognition of this dilemma has shaped a number of our decisions. In Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974), summary judgment was granted to the government on the basis of an affidavit declaring that the documents sought were exempt from disclosure. We reversed, recognizing that a FOIA plaintiff “obviously cannot know the precise contents of the documents sought; secret information is, by definition, unknown to the party seeking disclosure^]” 157 U.S.App.D.C. at 343, 484 F.2d at 823; that “[t]his lack of knowledge . seriously distorts the traditional adversary nature of our legal system’s form of dispute resolution^]” id. 157 U.S.App.D.C. at 344, 484 F.2d at 824; and that, although “formal” discovery under the Federal Rules of Civil Procedure was not at issue,2 procedures would have to be instituted to provide FOIA plaintiffs information roughly equivalent to what they would obtain through such discovery. “[C]ourts will simply no longer accept [from the defendant agency] conclusory and generalized allegations of exemptions . . . but will require a relatively detailed analysis in manageable segments [of the contents of documents the agency seeks to withhold].” Id. 157 U.S.App.D.C. at 346, 484 F.2d at 826. We held such a procedure necessary — before summary judgment could be granted to the government — to enable a FOIA plaintiff “to argue with desirable legal precision for the revelation of the concealed information.” Id. 157 U.S.App.D.C. at 343, 484 F.2d at 823.
Subsequently, the problem of ensuring adversariness arose in a context similar in several respects to the case at bar. In Schaffer v. Kissinger, 164 U.S.App.D.C. 282, 505 F.2d 389 (1974) (per curiam), before plaintiff was able successfully to pursue discovery, summary judgment was granted to the government on the basis of an affidavit stating that the documents plaintiff sought were classified “confidential” pursuant to Executive Order 11652, 3 C.F.R. 339 (1974), 50 U.S.C. § 401 (Supp. IV 1974). This court reversed, emphasizing that plaintiff had also filed an affidavit, as provided for by Rule 56(f), Fed.R.Civ.P.,3 stating his belief that genuine issues existed as to whether the classification was properly effected and indicating that he could not verify that belief without discovery. The court based its holding on the language of Rule *35856(f),4 the policies underlying the FOIA, and common sense:
Facts respecting the classification of the reports in question are solely in the control of the [defendant agency], [Plaintiff] should be allowed to undertake discovery for the purpose of uncovering facts which might prove his right of access to the documents which he seeks.
164 U.S.App.D.C. at 284, 505 F.2d at 391. It is significant that there was no evidence in Schaffer bolstering plaintiff’s claim that the affidavit submitted by the defendant agency was either executed in bad faith or was somehow erroneous. Without discovery, plaintiff had no means of producing such evidence. Relying solely on his Rule 56(f) affidavit, the court remanded the case with instructions to permit plaintiff to undertake discovery relevant to whether the reports in question were properly classified “confidential.”
Today the court ignores both Schaffer and the “overwhelming emphasis [the FOIA places] upon disclosure,” which guided our analysis in Vaughn. 157 U.S.App.D.C. at 343, 484 F.2d at 823. It does so in its zeal to protect the CIA from the burden of processing meritless FOIA requests for vital security information. I believe that such protection is available without eroding the requirements of the FOIA. First of all, the CIA has made no claim that preparation of the index mandated by Vaughn v. Rosen would have been either overly burdensome or likely to disclose matters that should be kept secret. Moreover, the CIA offers neither evidence nor reason to find that a complete bar to discovery was necessary to protect its personnel from harassment. Proper supervision of the discovery process, as described in the margin,5 could have avoided such problems. Through indexing and discovery the adversary system would have worked to maximize the probability that nonexempt information would be disclosed, thus fulfilling the central purpose of the FOIA.6
In sum, I submit that the grant of summary judgment to the CIA was premature. This position is reinforced by the factual ambiguity which pervades this record and which is exacerbated by the questionable legal standard on which the court distinguishes “agency records” from “congressional documents in an agency’s possession.”
II. THE MAJORITY’S “CONTROL/PROPERTY” TEST
The dispute in this case centers on two documents which the CIA admittedly possesses and on the scope of the CIA’s search *359for additional documents responsive to plaintiffs’ request for “legislative history.” The first document is a photostatic copy of a transcript containing the minutes of hearings conducted by the House Committee on Expenditures in the Executive Department on June 27, 1947. (Hereinafter referred to as the “hearing transcript.”) The second document is entitled “Statement of the Director of Central Intelligence before the House Armed Services Committee — 8 April 1948.” (Hereinafter referred to as the “Hillenkoetter statement.”)
My brothers agree with the CIA’s contention that the hearing transcript is simply unavailable to the public, whether or not specifically exempted from disclosure by the FOIA.7 They find that the transcript is a “congressional document,” not an “agency record,” and is therefore wholly beyond the reach of the Act. The court reasons that “the circumstances attending [the transcript’s] generation and the conditions attached to its possession by the CIA” plainly reveal that it “remains under the control and continues to be the property of the House of Representatives.” Maj. op. at-of 197 U.S.App.D.C., at 347 of 607 F.2d (emphasis added). This conclusion is reached as a matter of law, thus eliminating any justification for discovery, on the basis of representations by CIA officials. The agency has stated by affidavit that the transcript contains testimony taken in Executive Session; typewritten on both the cover and first page of the transcript is the word “Secret”; the text reveals that the stenographer and typist were sworn to secrecy; the CIA retains a copy of the transcipt for “internal reference purposes” only. Id at - of 197 U.S.App.D.C., at 347 of 607 F.2d, J.A. at 80.
In my view, the record in this case establishes as a matter of law that the hearing transcript is an “agency record,” and the court is empowered to order it withheld only if it qualifies for nondisclosure under FOIA exemptions one or three.8 First of all, the CIA claims to have had exclusive possession of this document for more than thirty years.9 More importantly, the CIA acknowledges that it employs this information in interpreting its organic legislation10 —i. e., in making decisions with respect to *360policy and operations. The Act does not define “agency records.” But the House and Senate reports reveal that the fundamental purpose of the FOIA was to open administrative policy and operations to the light of public scrutiny.11
I also find the court’s “control property” test unpersuasive. We are not told what it meant by congressional “control” over a document in an agency’s possession; or in what sense such a document can be considered congressional “property.” The fact that Congress is a non-agency does not preclude a document or copy of a document it has created from ever qualifying as an “agency record.” Federal agencies regularly receive documents created by non-agencies that obviously become “agency records” in the ordinary course. See, e. g., Washington Research Project, Inc. v. HEW, 164 U.S.App.D.C. 169, 504 F.2d 238 (1974) (grant application submitted to National Institute of Mental Health by noncommercial research scientist); Irons v. Gottschalk, 369 F.Supp. 403 (D.D.C.1974) (patent applications). Nor can the court rely on the view that because Congress may have somehow forbidden the CIA to disclose the transcript, thus exercising “control” over its contents, the transcript cannot be considered an “agency record.” “Control” in this sense goes to the question whether a document is exempt from disclosure — not to whether it is an “agency record.”12 In every exemp*361tion 3 case, for example, the ultimate question is whether Congress has forbidden the agency to disclose the records sought. To illustrate, 26 U.S.C. § 7213(a)(1) makes it unlawful “to divulge to any person the amount of income . . . set forth . in any income return . . ..” This proscription does not mean that tax returns are not “agency records.” Rather, tax returns are agency records that must be withheld under exemption 3. See, e. g., Tax Analysts & Advocates v. Internal Revenue Service, 164 U.S.App.D.C. 243, 505 F.2d 350 (1974).
It appears that the court would supplement the element of “control” with other concepts having to do with “property.” The court’s ultimate position, as I see it, would be that Congress has a property interest in, as well as control over, the contents of the transcript, the paper on which the contents are typed, and any copy of the transcript. But so sweeping a notion of congressional control and property is plainly at odds with the majority’s concession that the Hillenkoetter statement is an “agency record.” Maj. op. at - of 197 U.S.App.D.C., at 348 of 607 F.2d. Both the transcript and the Hillenkoetter statement contain testimony originally prepared by intelligence officials and subsequently delivered secretly before Congress. J.A. at 79-82. There is no logical reason to believe, and none has been suggested, that Congress would have an interest in controlling the testimony in one but not the other. The transcript contains, in addition to testimony, questions and comments by committee members. Perhaps, then, the testimony should be considered the property of the Executive branch, where it originated, and the comments the property of Congress. If so, to the extent the transcript consists of nonexempt testimony it should be disclosed under the majority’s own rationale.13 The only further difference between the two documents that is even arguably material is that the copy of the Hillenkoetter statement which the CIA possesses was apparently typed by agency employees, while the CIA’s copy of the transcript was transcribed and typed by employees of Congress. As I have indicated, the origin of a piece of paper is simply not dispositive of the question whether it qualifies as an “agency record.”
In any case, even assuming the “control/property” standard is the correct one, factual ambiguities in the record would preclude summary judgment. If Congress does, generally speaking, exert control over, and maintain property interests in, docu*362ments possessed by federal agencies, the majority’s test generates a need to ascertain the methods by which such control is exercised and relinquished, and the means by which such property interests are created and extinguished. In this case discovery is necessary specifically to determine whether Congress or the committee that conducted the hearings ever instructed the CIA to preserve the secrecy of the transcript, and, if so, for how long. Apparently the transcript itself contains no such express instruction, and the CIA concedes that the source of the “Secret” classification is unknown. J.A. at 80. The fact that the committee met in Executive Session serves only to raise further questions concerning the nature of the “longstanding practice” governing secrecy of such sessions to which the majority refers. Maj. op. at n.45.14Also, discovery is necessary to determine whether, in the thirty years during which the CIA has possessed the transcript, it has ever acted inconsistently with congressional “control,” as by disclosing the contents of the transcript to other agencies or individuals without seeking congressional authority. Finally, plaintiffs should be permitted to pursue further the question whether Congress itself has explicitly or implicitly indicated that it no longer considers preservation of the transcript’s secrecy to be crucial. Even without discovery plaintiffs have demonstrated that the Church Committee has published portions of the transcript.15
III. THE CIA’S CLAIMS OF EXEMPTION
The majority adopts the CIA’s declaration by affidavit that the withheld portions 16 of the Hillenkoetter statement are exempt from disclosure as a matter of law on grounds of national security. This result is reached by two separate paths — directly, under FOIA exemption one, 5 U.S.C. § 552(b)(1) (1976), and indirectly, by incorporating into FOIA exemption three, id., § 552(b)(3), the nondisclosure provisions of the National Security Act of 1947, 50 U.S.C. § 403(d)(3), and the Central Intelligence Agency Act of 1949, 50 U.S.C. § 403g. See generally Maj. op. at --- of 197 U.S.App.D.C., at 348-352 of 607 F.2d. The majority may well be correct in concluding that disclosure of the withheld material would threaten our national security. Congress, however, has unambiguously expressed its intention that such determinations shall be made de novo. 5 U.S.C. § 552(a)(4)(B) (1976).17 The affidavits submitted by the CIA are no substitute.
*363A. Exemption One18
In the ease of exemption one the district court must determine the propriety of a document’s classification according to “both procedural and substantive criteria contained in the Executive Order under which it was classified.” Zweibon v. Mitchell, 170 U.S.App.D.C. 1, 49, 516 F.2d 594, 642 (1975) (quoting from H.R.Rep.No.1380, 93d Cong., 2d Sess., 12 (1974)); see also Halperin v. Department of State, 184 U.S.App.D.C. 124 at 128, 565 F.2d 699 at 703 (1977). Such determinations could not have been made on the record in this case because the affidavit submitted by the CIA fails to reveal the date on which the Hillenkoetter statement was originally classified. J.A. at 81. Without discovery, the district court could merely speculate about which Executive Order, if any,19 governed the original classification.
The district court apparently relied on an asserted reclassification of the Hillenkoetter statement in concluding that “the withheld portions . . . have been properly classified according to the provisions of Executive Order No. 11652,” J.A. at 189, which is the Order presently in force. See 3 C.F.R. 339 (1974), 50 U.S.C. § 401 (Supp. IV 1974). Perhaps discovery pertaining to the validity of the original classification would be unnecessary if reclassification under Executive Order No. 11652 had been properly effected. The district court, however, was plainly in error. Section 4(A) of the Executive Order requires that classified material “show on its face its classification and whether it is subject to or exempt from the General Declassification Schedule. It shall also show the office of origin, the date of preparation and [the date of] classification . .” Excepting that the word “Secret” and the date of preparation appear on the face of the Hillenkoetter statement, J.A. at 80, there is no indication in the record that these procedures were followed.
We said recently in Halperin v. Department of State, 184 U.S.App.D.C. 124, 565 F.2d 699 (1977), that the government cannot claim a statutory exemption from the FOIA if it has failed to comply with the procedures necessary to give such exemption effect.20
*364B. Exemption Three21
In the case of exemption three the district court must determine whether the material withheld is specifically exempted from disclosure by statute. I have no quarrel with the court’s holding that 50 U.S.C. §§ 403(d) and 403g specifically require that “intelligence sources and methods” be kept secret. Maj. op. at --- of 197 U.S.App.D.C., at 349-350 of 607 F.2d. I believe the court is mistaken, however, in eschewing “discovery or in camera inspection to test for the presence of segregable, non-exempt material” on what is essentially the ground that “the Agency has already segregated and released 80% of the Hillenkoetter statement to plaintiffs.” Id. at n.65. This rationale violates the court’s statutory responsibility to undertake de novo review for “reasonably segregable material,” 5 U.S.C § 552(b) (1976); Department of the Air Force v. Rose, 425 U.S. 352, 374, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976), and places the disclosure decision squarely in the hands of the CIA.22
Our decisions establish that in national security cases as in all others, summary judgment is proper without discovery or in camera inspection only if the agency has submitted an itemized index that “subdivide^] the document under consideration into manageable parts cross-referenced to the relevant portion of the Government’s justification.” Vaughn v. Rosen, supra, 157 U.S.App.D.C. at 347, 484 F.2d at 827. See also Weissman v. CIA, 184 U.S.App.D.C. 117, 123, 565 F.2d 692, 698 (1977) (as amended, April 4, 1977); Phiilippi v. CIA, 178 U.S.App.D.C. 243 at 247, 546 F.2d 1009, at 1013 (1977). Cf. Mead Data Central, Inc. v. Department of the Air Force, 184 U.S.App.D.C. 350, at 358-360, 566 F.2d 242 at 250-*365252 (1977). Such an index, as I discussed earlier, “can ... be subjected to criticism by the party seeking the document. If in camera examination of the document is still necessary, the court will at least have the benefit of being able to focus on the issues identified and clarified by the adversary process.” Phillippi v. CIA, supra, 178 U.S.App.D.C. at 247, 546 F.2d at 1013; Vaughn v. Rosen, supra, 157 U.S.App.D.C. 346-48, 484 F.2d at 826-828. See also S.Rep.No.93-854, 93d Cong., 2d Sess., 14-15 (1974).
The affidavit filed here by the CIA, quoted in part in the court’s opinion at 21, plainly fails to supply the information necessary to facilitate the adversary process and de novo review. First, the affidavit speaks for the most part only of intelligence “devices,” “sources,” “methods,” and “operations.” Essentially it parrots the language of the exempting statutes, 50 U.S.C. §§ 403(d)(3) (“intelligence sources and methods”) and 403g (intelligence “functions”), rather than providing the detailed description the “requesting party [needs] to present its case effectively,” Mead Data Central, Inc. v. Dept. of the Air Force, 184 U.S.App.D.C. 350 at 359, 566 F.2d 242 at 251 (1977); Vaughn v. Rosen, supra, 157 U.S.App.D.C. at 343-44, 484 F.2d at 823-24, 828, and a reviewing court requires to make an independent evaluation of an agency’s exemption claims.23 Second, as plaintiffs point out, the affidavit “makes no effort to match its assertions to given pages or paragraphs in the [Hillenkoetter] statement.” Brief for Appellants at 33. For want of an itemized index, it is impossible to determine whether all nondisclosed portions of the statement have been described, much less properly withheld.
IV. THE CIA’S SEARCH FOR RESPONSIVE DOCUMENTS
The court refuses to permit plaintiffs to conduct discovery pertinent to the scope of the CIA’s search for “legislative history” on the ground that affidavits submitted by the agency reveal as a matter of law that the search was thorough. The majority emphasizes the assertion by the agency’s Information and Privacy Coordinator that the “CIA ‘interpreted [plaintiffs’] request broadly enough to ensure that [it] would locate all documents within the scope of the request.’ ” Maj. op. at - of 197 U.S.App.D.C., at 353 of 607 F.2d; J.A. at 78. The majority states that “the Agency’s good faith would not be impugned unless there were some reason to believe that [additional responsive] documents could be located without an unreasonably burdensome search.” Maj. op. at - of 197 U.S.App.D.C., at 353 of 607 F.2d. Finding that the CIA did, in fact, act in good faith, the court refuses to reach plaintiffs’ contention that the agency’s definition of “agency records,” 32 C.F.R. § 1900.3(g) (1976),24 is unduly narrow and may have served as an impermissible basis for withholding otherwise responsive documents. Maj. op. at--*366of 197 U.S.App.D.C., at 355-356 of 607 F.2d.
The court may well be correct in concluding that the CIA has acted in good faith, and that its search was thoroughly responsive to plaintiffs’ request. My disagreement, again, concerns not the substance but the timing of the judgment in favor of the agency.
As I understand plaintiffs’ position, although they do raise questions about the CIA’s good faith,25 the real issue here concerns the scope the agency attributed to the term “legislative history.” Clearly, whether or not the CIA acted in good faith, its understanding of “legislative history” shaped its search for responsive documents. It is not enough for the CIA simply to state that it “interpreted the request broadly.” Without discovery of the precise definition employed by the persons who conducted the search, plaintiffs were in no position to argue effectively that the search was under-inclusive.26 Such discovery, of course, might have led the parties to agree on an appropriate search. At a minimum, such discovery would have enabled plaintiffs to reformulate their request to eliminate confusion and the possibility of future lawsuits. Also, such discovery would have revealed whether the persons conducting the search did in fact withhold otherwise responsive documents on the basis of the CIA’s definition of “agency records.” If so, the question would arise whether that definition is permitted by the FOIA.
Y. ATTORNEY’S FEES
Plaintiffs claim to be entitled to an award of attorney’s fees on the ground that the CIA produced several documents only after this litigation was instituted.27 The court rejects this claim in part because plaintiffs have not shown the required “causal nexus between their litigation and the CIA’s disclosure.” Maj. op. at-of *367197 U.S.App.D.C. at 356 of 607 F.2d. I do not disagree with the court’s legal standard. What concerns me, however, is that here again plaintiffs have had no opportunity to make their case. A showing of an agency’s subjective reasons for producing documents is difficult to accomplish at all events. It is virtually impossible without discovery.
VI. CONCLUSION
In a recent FOIA case Judge Wilkey remarked that “[t]he data which plaintiff seeks to have produced . . . are matters of interest not only to him but to the nation.” Weisberg v. Department of Justice, 177 U.S.App.D.C. 161 at 164, 543 F.2d 308 at 311 (1976). This observation applies with particular force to the legislative history underlying the creation of the CIA. I regret that an issue of such importance has not been resolved in accordance with principles of summary judgment.
. 5 U.S.C. § 552 (1976).
. The sole issue in Vaughn was whether the agency had demonstrated by affidavit that the documents sought were exempt from disclosure. Plaintiff simply contested the sufficiency of the affidavit. 157 U.S.App.D.C. at 343, 484 F.2d at 823. He did not attempt to bolster his case by serving interrogatories on agency officials, Rule 33, Fed.R.Civ.P., or by deposing them, Rules 30 and 31. Thus the question whether discovery under the rules should be permitted was not involved in the case.
In the present case, by contrast, plaintiffs urge that proper ventilation of the issues requires both discovery and more detailed affidavits. Plaintiffs seek to discover the circumstances surrounding the creation, and possession by the CIA, of the “hearing transcript,” Part II, infra; the procedures and substantive criteria observed in classifying the “Hillenkoetter statement,” Part III(A), infra; the breadth of the CIA’s search for responsive documents and the reasons for delay, Part IV, infra; and whether the agency’s decision to disclose certain materials was prompted by this lawsuit, Part V, infra. In addition, plaintiffs contend that the affidavits filed by the CIA fail adequately to describe specific materials withheld and the reasons for nondisclosure, Parts II n.8 and III(B), infra.
. (f) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
. See note 3 supra.
. The Federal Rules leave discovery in the hands of the parties in the first instance. The district court is charged with supervising the process when disputes arise. Thus, if the CIA believed plaintiffs’ requests for discovery to be burdensome or otherwise objectionable, it had several alternatives to a motion for summary judgment that were more consonant with the spirit of the FOIA. It could, for example, have served objections to specific interrogatories on plaintiffs, who then would have had to decide whether to move in district court to compel answers under Rule 37(a)(2). The CIA could itself have moved in district court to terminate or limit a deposition, Rule 30(d), or for a protective order, Rule 26(c). The grounds for such a protective order, like those for refusing to answer specific questions, are generous. The district court “may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense. . . ."Id The district court may also, of course, recognize any privilege asserted by a party seeking to resist discovery. Rule 26(c)(6). Thus discovery would neither have overly burdened the agency nor jeopardized its legitimate secrets, but would have provided both plaintiffs and the district court the information necessary to make the FOIA work.
. See generally S.Rep.No.813, 89th Cong., 1st Sess. (1965); H.R.Rep.No.1497, 89th Cong., 2d Sess. (1966), U.S.Code Cong. & Admin.News 1966, p. 2418. The Senate Report states unequivocally that “[i]t is the purpose of the present bill ... to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language . . ..” S.Rep.No.813, supra, at 3. See also H.R.Rep.No.1497, supra, at 3.
For a brief discussion of the history and purposes of the FOIA, see EPA v. Mink, 410 U.S. 73, 79-80, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973).
. This is our first occasion to consider an agency’s claim that the FOIA does not apply to information in its possession. Compare, e. g., Soucie v. David, 145 U.S.App.D.C. 144, 448 F.2d 1067 (1971), in which the issue was whether the Office of Science and Technology is an “agency” for purposes of the FOIA.
The Court of Appeals for the Tenth Circuit, however, has considered a claim similar to that raised here by the CIA. In Cook v. Willingham, 400 F.2d 885 (10th Cir. 1968) (per curiam), the court decided that presentence reports are not “agency records” even though in the possession of prison authorities. I disagree. See note 13 infra.
. 5 U.S.C. §§ 552(b)(1), (3) (1976). I submit that the exemption one issue cannot be resolved on this record since the CIA has failed to reveal whether the procedures it followed in classifying the transcript comport with the requirements of Executive Order No. 11652. The Affidavit of George L. Cary, Legislative Counsel of the CIA (hereinafter “Cary Affidavit”), J.A. at 81, states only that a “Secret” classification marking has been affixed on the face of the transcript. It does not mention the other requirements contained in the Executive Order. See generally Part III(A) infra. I suggest also that neither exemption one nor exemption three can be held applicable to the transcript until the CIA files an itemized description of its contents. See generally id.; Part III(B) infra.
. Although no explanation of “agency records” is provided either in the FOIA itself or in the legislative history, the Justice Department has suggested that the Act requires disclosure of “records in being and in the possession or control of an agency.” R. Clark, Attorney General’s Memorandum on the Public Information Section of the Administrative Procedure Act 23 (1967), reprinted in Freedom of Information Act Source Book, S.Rep.No.82, 93d Cong., 2d Sess. 222 (1974) (emphasis supplied) (hereinafter “Attorney General’s Memorandum”). This interpretation supports plaintiffs’ position that possession suffices and is consistent with the general view advanced here that any attempt by the courts to define “agency records” must be shaped primarily by the policy of full disclosure underlying the Act. See notes 6 supra and 12 infra.
. The Cary Affidavit states that the agency uses the transcript “in conjunction with congressional action on legislation dealing with the establishment of the Office of the Director of Central Intelligence, the Central Intelligence Agency and its functions.” J.A. at 80.
. The reports indicate that the FOIA was intended to strengthen the Public Information section of the Administrative Procedure Act, 5 U.S.C. § 1002 (1964), which was “drawn upon the theory that administrative operations and procedures are public property which the general public, rather than a few specialists or lobbyists, is entitled to know or have ready means of knowing with definiteness and assurance.” H.R.Rep.No.1497, 89th Cong., 2d Sess. 3 (1966) (quoting from H.R.Rep.No.752, 79th Cong., 1st Sess. 198 (1945), U.S.Code Cong. & Admin.News 1966, pp. 2418, 2420. See also S.Rep.No.813, 89th Cong., 1st Sess. 8 (1965) ,(“[T]he very purpose for which [the Public Information Section] was intended [was to guarantee] the public’s right to know the operations of its government.”); Dept. of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976); SOC Development Corp. v. Mathews, 542 F.2d 1116 (9th Cir. 1976).
My brothers would facilitate the flow of information between Congress and the Executive branch, maj. op. at - of 197 U.S.App.D.C., at 346 of 607 F.2d, at the prohibitive cost of perpetuating the “secret law” we have condemned so frequently. See e. g., Tax Analysts & Advocates v. IRS, 164 U.S.App.D.C. 243, 246, 505 F.2d 350, 353 (1974); Cuneo v. Schlesinger, 157 U.S.App.D.C. 368, 173, 484 F.2d 1086, 1091 n.13 (1973).
. This view of congressional “control” derives from the history of the FOIA as well as its plain language. Before the FOIA was enacted, the disclosure provisions of the Administrative Procedure Act allowed agencies to withhold information “in the public interest,” or “for good cause shown,” or on the ground that the person seeking the record was not “properly and directly concerned.” 5 U.S.C. § 1002 (1964). The FOIA was designed specifically to eliminate these discretionary standards. Soucie v. David, 145 U.S.App.D.C. 144, 153-54, 448 F.2d 1067, 1076-77 (1971); Bristol-Myers Co. v. FTC, 138 U.S.App.D.C. 22, 25, 424 F.2d 935, 938 (1970); American Mail Line, Ltd. v. Gulick, 133 U.S.App.D.C. 382, 385, 411 F.2d 696, 699 (1969); H.R.Rep.No.1497, 89th Cong., 2d Sess. 1-2, 5-6, 8-9, 11 (1966); S.Rep.No.813, 89th Cong., 1st Sess. 3-6, 8, 10 (1965). Congress replaced them with a general requirement that all “records” be disclosed, 5 U.S.C. § 552(a)(3) (1976), offset by nine — and only nine — categories of privileged material. Id. § 552(b)(l)-(9). To avoid the creation of new loopholes, Congress expressly limited the grounds for nondisclosure to those specified in the exemptions: “This section does not authorize withholding information or limit the availability of records to the public, except as specifically stated in this section." Id. § 552(c) (emphasis supplied).
My colleagues justify their view of congressional “control” on the theory that “Congress has broad powers to keep its documents secret [and does not] waive[] its prerogatives of confidentiality” when it transfers a “secret” document to an agency. Maj. op. at n.48.
I think it is fair to say that the court creates a tenth exemption for documents subject to what it terms “congressional prerogatives of confidentiality.” To be sure, there can be no doubt about the existence of congressional power to maintain the secrecy of congressional proceedings, see U.S.Const. art. I, § 5, and thus to preserve the secrecy of documents in which the minutes of those proceedings are transcribed. The question in this case, however, is not whether such a power exists, but whether Congress continues to exercise it after transferring a document to an agency on an ostensibly permanent basis.
I read the FOIA as an unequivocal declaration by Congress that documents which have become part of the administrative process are subject to full disclosure unless specifically exempted.
. The majority asserts that this argument is “frivolous” because “the [hjearing [tjranscript is not an agency record . .Maj. op. at n.47. In so doing the majority not only overlooks the “property” element of its own test, but also assumes its conclusion. As I understand the legal standard the court proposes, the question whether a document is an “agency record” requires consideration of whether the document is the “property” of an agency. Surely, then, the majority must consider whether the testimony contained in the transcript is the “property” of the Executive branch.
That the majority fails to consider fully the perplexity of its “property” rationale is reflected also by its reliance on Cook v. Willingham, 400 F.2d 885 (10th Cir. 1968) (per curiam). In that case the court held that a presentence report in the hands of prison authorities was not an “agency record” because it “was made for the use of the sentencing court and thereafter remains in the exclusive control of that court despite any joint utility it may eventually serve.” Id. Perhaps the sentencing court can be said to have a “property” interest in a presentence report since such reports are prepared for that court by an arm of that court — the United States Probation Office. See Rule 32(c)(1), Fed.R.Crim.P. Since the contents of a presentence report originate with the courts, however, not with the Executive branch, such reports would appear distinguishable under the majority’s standard from the testimony contained in the hearing transcript at issue here.
In any event, I believe that Cook was wrongly decided. The brief opinion in that case fails to clarify exactly how the sentencing court exercises control over a document in the possession of prison authorities. Moreover, the opinion fails to envision the possibility that the sentencing court could ever relinquish such control. In my view, once the prison authorities had possession of the report for use in connection with administrative decisions (e. g., parole release), the report became a quintessential “agency record.” See note 11 supra and accompanying text.
. The majority acknowledges that H.R.Rule XI(l)(k)(7), which governs disclosure of testimony taken in Executive Session of the House of Representatives, did not exist in 1947, when the hearings in question were conducted. Maj. op. at n.45. The majority states, however, that “the Rule simply formalized long-standing practice . . [requiring that] ‘all testimony taken in executive hearings ... be secret and . not be released without the approval of a majority of the subcommittee.’ ” Id. (quoting from S.Rep.No.5, 81st Cong., 1st Sess., 3-4 (1949)).
The “practice” to which the court refers is ambiguous at best. For one thing, the court relies on practice in the Senate, and the House may have functioned differently. And the practice of either branch of Congress may have provided for disclosure without approval by committee after a specified duration. Moreover, assuming Senate practice is relevant, the court should consider whether disclosure of portions of the transcript by the Church Committee, see note 15 infra, might substitute for approval by the committee that originally conducted the hearings.
. The Church Committee Report, Foreign and Military Intelligence, Final Report of the Select Committee to Study Governmental Operations with respect to Intelligence Activities, S.Rep. No.94-755, 94th Cong., 1st Sess., pt. I (1976), refers to or quotes from the hearing transcript at 72n. 6; 129n. 2, 7; 136n. 32-34; 138n. 41a; 480n. 17, 487-488n. 53; and 488n. 56-57.
. The CIA has deleted approximately 20%, or 23 pages, of the Hillenkoetter statement. Brief for the Government at 21.
. Congress made its will clear in Pub.L.No.93-502, 88 Stat. 1561 (1974), which amended the FOIA in part to overrule the decision by the Supreme Court in EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973). In Mink the Court had interpreted 5 U.S.C. § 552(b)(1), which exempted from disclosure those matters “specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy,” not to allow judicial review of Executive security classifications and accordingly not to allow in camera inspection *363of a contested document bearing a security classification so that nonsecret matter could be separated from secret matter and ordered disclosed. 410 U.S. at 81-84, 93 S.Ct. 827. Congress responded by amending the language of § 552(b)(1), see note 18 infra, to provide clearly for judicial review of both the procedural and substantive propriety of the classification. It also specified that where the documents sought are withheld on the basis of any of the nine exemptions, “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 . . . Pub.L.No.93-502, § 1(b)(2), 88 Stat. 1562 (1974); see also H.R. Rep.No.1380, 93d Cong., 2d Sess., 2, 12 (1974).
. FOIA’s first exemption immunizes from disclosure those 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) (1976).
. The record reveals only that the Hillenkoetter statement was prepared in April, 1948. At that time, there was no Executive Order in existence governing all security classifications. The first such Order was issued in 1950 by President Truman. See Executive Order No. 10290, 3 C.F.R. 789 (1953). The Office of War Information, however, had in 1942 issued a government-wide regulation dealing with security classification under the authority of Executive Orders 9103 and 9182. See Office of War Information Regulation No. 4, issued Sept. 28, 1942, amended, Nov. 13, 1942. See generally H.R.Rep.No.93-221, 93d Cong., 1st Sess., 4-14 (1973). This regulation established both substantive criteria and procedural requirements. See id. at 7. Thus, assuming the Hillenkoetter statement was classified originally in 1948, discovery was necessary to determine whether these substantive criteria and procedural requirements were followed.
. See also Schaffer v. Kissinger, supra.
In Halperin, we did not hold that the document in question necessarily had to be disclosed to plaintiff. Rather, we remanded the case to the district court for a determination of whether disclosure would “do grave damage to the national security . . . .” Id., 184 U.S.App.D.C. at 131, 565 F.2d at 706. The decision to remand was made reluctantly:
Having failed to follow the procedures established by their own branch of government, appellants ask us in effect to save them from the consequences of that failure by providing *364an exemption the Congress did not create. The power of a court to refuse to order the release of information that does not qualify for one of the nine statutory exemptions exists, if at all, only in “exceptional circumstances in which a court could fairly conclude that Congress intended to leave room for the operation of limited judicial discretion.” The need for this restriction on the power of the courts is apparent here. A broad judicial power to refuse to order disclosure of non-exempt information that a court feels would damage the national interest could obviously operate to frustrate the requirements of FOIA.
Id. 184 U.S.App.D.C. at 131, 565 F.2d at 706 (citations omitted). Narrowly circumscribing its discretion, we directed the district court to be “guided by an exacting standard similar to that suggested in Near v. Minnesota, [283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)].” Halperin, 184 U.S.App.D.C. at 132, 565 F.2d at 707. See also Tax Analysts & Advocates v. IRS, 164 U.S.App.D.C. 243, 248, 505 F.2d 350, 355 (1974); Getman v. NLRB, 146 U.S.App.D.C. 209, 450 F.2d 670, 678 (1971); Soucie v. David, 145 U.S.App.D.C. 144, 154, 448 F.2d 1067, 1077 (1971).
In this case, as in Halperin, since the agency failed in reclassifying the Hillenkoetter statement to follow the procedures necessary to give exemption one effect, there is no need to address the question whether the reclassification satisfied the substantive criteria contained in Executive Order No. 11652. I should note, however, that for want of an itemized index of the contents of the Hillenkoetter statement, see Part III(B) infra, the district court could not possibly have given the requisite de novo consideration to the question of substantive classifiability.
. FOIA’s third exemption immunizes from disclosure those matters that are
specifically exempted from disclosure by statute . provided that such statute (A) requires that the matters be withheld 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) (1976).
. The court asserts that “[exemption 3 differs from other FOIA exemptions in that its applicability depends less on the detailed factual contents of specific documents . . Maj. op. at- of 197 U.S.App.D.C., at 350 of 607 F.2d. On the contrary, the applicability of this exemption, like any other, depends entirely on whether the factual contents of the particular materials withheld are such that the statutory criteria for nondisclosure are satisfied. The sole difference between exemption three and other FOIA exemptions is that in the case of exemption three, these criteria are not provided by the FOIA itself but by other statutes. For example, in the present case the relevant criteria are established by the National Security Act of 1947, 50 U.S.C. § 403(d)(3), and the Central Intelligence Act of 1949, 50 U.S.C. § 403g. I should note that the court appears to realize as much, and later states that the “withheld material [must be included] within [the exempting] statute’s coverage.” Maj. op. at - of-U.S.App.D.C., at 350 of 607 F.2d.
. My colleagues find that the affidavit “could not have been much more detailed without ‘compromisftng] the secret nature of the information.’ ” Maj. op. at - of 197 U.S.App.D.C., 352 of 607 F.2d (quoting from Vaughn v. Rosen, supra, 157 U.S.App.D.C. at 346-47, 484 F.2d at 826-27). This may be true. An affidavit couched essentially in the language of the exempting statute, however, is plainly of no more usefulness to plaintiffs or the court than an affidavit simply declaring that the withheld material qualifies for a particular exemption. If for some reason agencies must be especially guarded in describing withheld material in so-called “national security” cases, the indexing requirement may not provide an adequate means in such cases of ensuring that the adversary process works and of facilitating de novo review. It may therefore be necessary, espedaily in national security cases, for the District Court to inspect withheld documents, or at least a reasonable sample thereof, in camera. But compare Weissman v. CIA, supra, 184 U.S.App.D.C. 122, 565 F.2d at 697 (“in camera proceedings are particularly a last resort in ‘national security’ situations.”).
. The CIA’s definition excludes certain (1) “[ijndex, filing, and museum documents;” (2) “[rjouting and transmittal sheets and notes;” (3) “[b]ooks, newspapers, magazines, and similar publications;” (4) “[djocuments and records prepared or originated by [other] agencpes];” and (5) “[d]ocuments and records furnished by foreign governments ... on the understanding . . . [that they be] kept in confidence.”
. Plaintiffs point out that on March 10, 1976, six weeks after their complaint had been filed _Jn district court and nearly five months after their original FOIA request had been filed with the CIA, they received notification that the agency had conducted a subsequent search and “recently identified” additional responsive documents that “had not previously been located.” Brief for Appellants at 4-7; John F. Blake letter, J.A. at 129. They contend that the CIA’s delay in responding to their request raises an inference of bad faith that justifies discovery with respect to the scope of the search. Brief for Appellants at 20. At least one district court judge would apparently agree with them. See Ass’n of National Advertisers, Inc. v. FTC, 38 Ad.L.2d 643 (D.D.C. April 1, 1976) (production of additional documents after six-month delay “presents a substantial issue of the completeness of the agency search.” Id. at 645).
. The court rejects the need for discovery of the definition of “legislative history” employed by the agency in its search because this is the “term plaintiffs used, and if any ambiguity was introduced thereby plaintiffs must reap what they have sown.” Maj. op. at-of 197 U.S.App.D.C., at 355 of 607 F.2d.
I submit that this view is at war with the purposes of the FOIA. A FOIA request may of necessity be based on imperfect information— or none at all — about the particular agency’s methods of classifying and filing information. FOIA’s legislative history acknowledges the problem, indicating that a request must supply only “a reasonable description enabling the Government employee to locate the requested records.” S.Rep.No.813, 89th Cong., 1st Sess. 8 (1965). See also Sears v. Gottschalk, 357 F.Supp. 1327 (D.C.Va.1973). To require more specificity would be futile, particularly where, as here, the requestor does not know whether or to what extent responsive documents exist. Moreover, FOIA’s legislative history reveals that the requirement that a request identify the records sought, 5 U.S.C. § 552(a)(3), is “not to be used as a method of withholding records.” S.Rep.No.813, supra, at 8, Accord, Bristol-Myers Co. v. FTC, 138 U.S.App.D.C. 22, 25, 424 F.2d 935, 938 (1970). See also Attorney General’s Memorandum, supra note 9, at 24. It follows that ambiguity resulting from imperfect information should not be used as a justification for prohibiting the discovery necessary to make the FOIA work.
In this case I would not cripple plaintiffs’ right to access to agency records because there is ambiguity in their request. What they apparently seek is any and all information in whatever form pertaining to the CIA’s organic statutes. Yet a request so formulated would provide agency employees with scarcely any more guidance than one for “legislative history.” The problem, quite simply, is that plaintiffs do not know what form such information will take, or where it might be located in the CIA’s files. I would rely on the discovery process to eliminate such a problem.
. J.A. at 129. See note 25 supra.