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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 18, 2003 Decided July 8, 2003
No. 02-5003
ASSASSINATION ARCHIVES AND RESEARCH CENTER,
APPELLANT
v.
CENTRAL INTELLIGENCE AGENCY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 99cv00525)
James H. Lesar argued the cause for the appellant.
G. Michael Harvey, Assistant United States Attorney, ar-
gued the cause for the appellee. Roscoe C. Howard, Jr.,
United States Attorney, and R. Craig Lawrence, Assistant
United States Attorney, were on brief.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The appellant,
Assassination Archives and Research Center (AARC),
brought suit under the Freedom of Information Act (FOIA or
Act), 5 U.S.C. §§ 552 et seq., to compel disclosure by the
Central Intelligence Agency (CIA or Agency) of a multi-
volume compendium of information on ‘‘Cuban Personalities’’
(Compendium) prepared by the Agency in 1962. The CIA
withheld disclosure of the entire Compendium on the grounds
that the documents contained in it are classified SECRET
and that disclosure is exempt under the National Security Act
of 1947, 50 U.S.C. § 403–3(c)(7). The district court upheld
the Agency’s decision, granting summary judgment in its
favor. AARC v. CIA, 177 F. Supp. 2d 1, 6–12 (D.D.C. 2001).
AARC argues that the CIA failed to carry its burden to
establish a FOIA exemption from disclosure and that, in any
event, the Agency waived any exemption available under the
Act because information regarding Cuban nationals had al-
ready been disclosed pursuant to the John F. Kennedy Assas-
sination Records Collection Act (JFK Act), Pub. L. No. 102–
526, § 2(b), 106 Stat. 3443 (1992) (codified at 44 U.S.C. § 2107
note). We reject AARC’s arguments and instead affirm the
district court.
I.
In February 1993, AARC filed a FOIA request with the
CIA. It sought the release of the Compendium, a five-volume
set of documents on Cuban personalities compiled in Novem-
ber 1962 by the CIA’s Biographic Register, Office of Central
Research. Initially, the CIA declined to waive copying fees—
concluding that 5 U.S.C. § 552(a)(4)(A)(iii), which allows docu-
ments to be furnished at no charge or a reduced rate if the
information sought is ‘‘likely to contribute significantly to
public understanding of the operations and activities of the
government,’’ was not applicable—and AARC filed the instant
lawsuit. The district court directed the CIA to waive copying
fees associated with AARC’s request.
3
The CIA then began processing AARC’s request and, on
March 21, 2000, informed AARC by letter that the Compendi-
um was exempt from disclosure under Exemptions 1 and 3 of
FOIA. 5 U.S.C. § 552(b)(1), (3).1 AARC appealed the deci-
sion through the Agency review process but the Agency
determined the appeal was moot because AARC had already
initiated this litigation. The CIA subsequently moved for
summary judgment, AARC, 177 F. Supp. 2d at 3, supporting
its motion with the declaration of Herbert Briick, the Infor-
mation Review Officer for the CIA Directorate of Intelli-
gence, who explained that the Compendium represents a
‘‘compilation of personality profiles of, or biographic data on,
a number of Cuban individuals’’ that includes non-classified
biographies, which are as a general rule based on ‘‘open
source information,’’ although profiles that are marked SE-
CRET are so identified because they rely on ‘‘information
collected clandestinely.’’ Declaration of Herbert Briick at
¶ ¶ 14, 19 (July 5, 2000) (First Briick Decl.), App. 34, 36–37.
Notwithstanding the nature of the sources from which the
contents of the Compendium derive varies, the entire Com-
pendium was classified, Briick declared, because of the pur-
pose behind the Compendium and the fact that disclosure of
information might reveal intelligence methods and sources.
Id. at ¶ 15, App. 34–35.2 As a result, the Agency argued that
1 Exemption 1 exempts matters that are ‘‘(A) specifically autho-
rized 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). Exemption 3 protects matters ‘‘specifically
exempted from disclosure by statute TTT, 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 particular types of
matters to be withheld.’’ 5 U.S.C. § 552(b)(3).
2Although the Briick Declaration does not expressly explain the
purpose, at oral argument the CIA stated the purpose of the
Compendium was to identify Cuban nationals who could lead the
country if Castro was ousted. Tape of Oral Argument, Mar. 18,
2003.
4
the Compendium qualified for nondisclosure under both Ex-
emptions 1 and 3 of FOIA, 5 U.S.C. § 552(b)(1), (3).
On the other hand, AARC offered evidence rebutting the
CIA’s exemption claims and, in addition, asserted that the
CIA had waived any FOIA exemption with respect to at least
some of the material contained in the Compendium. AARC,
177 F. Supp. 2d at 7–8. Specifically, AARC proffered the
declaration of John M. Newman, an associate professor at the
University of Maryland, who opined that the CIA’s position
on nondisclosure was erroneous because similar, if not identi-
cal, information had already been disclosed pursuant to the
JFK Act. Id.; Declaration of John M. Newman at ¶ ¶ 7–9
(Sept. 24, 2000) (Newman Decl.), App. 53–54. According to
Newman, the CIA’s national security interest in preventing
disclosure of information contained in the Compendium was
minimal. Nonetheless, the district court concluded, first, that
the Agency was entitled to summary judgment on both
exemptions and, second, that the Agency had not waived its
claim to exemptions. AARC, 177 F. Supp. 2d at 5–12.
AARC then filed the instant appeal.
II.
We review the district court’s grant of summary judgment
de novo. Summers v. Dep’t of Justice, 140 F.3d 1077, 1079
(D.C. Cir. 1998). In the FOIA context, de novo review
requires the court to ‘‘ ‘ascertain whether the agency has
sustained its burden of demonstrating that the documents
requested are not ‘‘agency records’’ or are exempt from
disclosure under the FOIA.’ ’’ Id. at 1080 (quoting Gallant v.
NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994) (internal citations
omitted)).
The FOIA requires every federal agency, upon request, to
make ‘‘promptly available to any person’’ any ‘‘records’’ so
long as the request ‘‘reasonably describes such records.’’ 5
U.S.C. § 522(a)(3). The Act ‘‘reflects a general philosophy of
full agency disclosure,’’ Dep’t of Defense v. FLRA, 510 U.S.
487, 494 (1994) (internal quotations omitted), but also provides
for several exemptions under which an agency may deny
5
disclosure of the requested records. 5 U.S.C. § 552(b). The
exemptions—there are nine—reflect the ‘‘Congress’s recogni-
tion that the release of certain information may harm legiti-
mate governmental or private interests.’’ Summers, 140 F.3d
at 1080. If an agency invokes an exemption, it bears the
burden of establishing the applicability of the claimed exemp-
tion. Summers, 140 F.3d at 1080. And, even if an agency
establishes an exemption, it must nonetheless disclose all
reasonably segregable, nonexempt portions of the requested
record(s). 5 U.S.C. § 552(b).
Here, section 102(d)(3) of the National Security Act of 1947,
50 U.S.C. § 403–3(c)(7), which directs the CIA Director to
‘‘protect intelligence sources and methods from unauthorized
disclosure,’’ is a statute that shields qualifying information
from disclosure under the Act because it meets the two
criteria of Exemption 3. CIA v. Sims, 471 U.S. 159, 178–79
(1985); see supra note 1 (setting forth Exemption 3). We
held that section 102(d)(3) qualifies under Exemption 3 if the
records sought ‘‘can reasonably be expected to lead to unau-
thorized disclosure of intelligence methods and sources.’’
Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982).
The Agency, through Briick, explained that disclosure of
the contents of the Compendium, which includes the ‘‘pool in
1962 of potential intelligence sources or targets of CIA intelli-
gence collection,’’ would ‘‘reveal those individuals in whom
CIA had an intelligence interest and would provide leads to
identifying the intelligence sources who or which acquired the
information.’’ First Briick Decl. at ¶ ¶ 15, 19, App. 34, 37; id.
at ¶ ¶ 20–38, App. 37–49. In view of the weight we give the
Agency’s judgment as to the effect of disclosure, Sims, 471
U.S. at 174–75, 179; Fitzgibbon v. CIA, 911 F.2d 755, 766
(D.C. Cir. 1990) (‘‘The assessment of harm to intelligence
sources, methods and operations is entrusted to the Director
of Central Intelligence, not to the courts.’’); see Afshar v.
Dep’t of State, 702 F.2d 1125, 1133 (D.C. Cir. 1983) (‘‘[U]nless
it senses bad faith or a general sloppiness in the declassifica-
tion or review process, a court will feel with special urgency
the need to accord substantial weight to an agency’s affidavit
concerning the details of the classified status of the disputed
6
recordTTTT’’ (internal quotations omitted)); see also Goldberg
v. Dep’t of State, 818 F.2d 71, 78 (D.C. Cir. 1987) (‘‘[We]
accord those affidavits ‘substantial weight,’ considering the
agency’s unique insights into what adverse [e]ffects might
occur as a result of public disclosure.’’ (internal quotations
omitted)), cert. denied, 485 U.S. 904 (1988), we have no
trouble concluding that the Agency may withhold the contents
of the Compendium pursuant to Exemption 3 of FOIA.3
3 Because we conclude that the Agency easily establishes that the
records AARC seeks are exempt from disclosure under Exemption
3, we do not consider the applicability of Exemption 1. AARC also
argued, first, that the Agency inadequately explained why it could
not reasonably segregate and disclose nonexempt portions of the
Compendium as required by 5 U.S.C. § 552(b) and, second, that the
Briick Declaration does not meet the specificity requirements of
Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973), cert. denied,
415 U.S. 977 (1974). Regarding AARC’s first argument, we find the
Agency’s showing that the Compendium is not segregable adequate.
As Briick explained, ‘‘Release of the information in this document
would specify precisely which Cuban nationals were and were not of
interest to the CIATTTT Such an explication of CIA interests would
provide key insights into current CIA intelligence targeting and
analytic processes.’’ First Briick Decl. ¶ 38, App. 49. Because the
Compendium contains ‘‘personality profiles and biographic data on
persons of intelligence interest to CIA[,] [b]y definition, the release
of information from such a profile, or the release of such biographic
data, directly or indirectly reveals information about the individual
discussed.’’ Id. at ¶ 39, App. 50. To reveal even the names of the
individuals or the number of names contained in the Compendium,
Briick said, would ‘‘reveal CIA interest’’ and ‘‘the extent of the U.S.
intelligence collection effort directed at Cuba in the 1960s.’’ Id.
Thus, he suggested, even partial release of the substantive bio-
graphic data—which comprise the Compendium—threatens the dis-
closure of intelligence sources and methods. Id.
As to AARC’s second argument, under Vaughn, in order ‘‘to
permit adequate adversary testing of the agency’s claimed right to
an exemption,’’ Schillier v. NLRB, 964 F.2d 1205, 1209 (D.C. Cir.
1992), we require an agency to provide information justifying the
exemption that is as specific as possible ‘‘without actually disclosing
7
Indeed, AARC does not dispute that the Agency could
withhold the Compendium under Exemption 3 but for the
earlier disclosures under the JFK Act. AARC argues that
those disclosures have either (1) already revealed all intelli-
gence sources and methods used in the Compendium, thereby
making the CIA’s invocation of Exemption 3 meritless or (2)
effected a waiver of the Exemption with respect to at least
some of the information in the Compendium.
On AARC’s first contention, we side with the Agency. The
Agency has explained that notwithstanding the JFK Act
disclosures, releasing the Compendium would lead to the
revelation of intelligence sources and methods. AARC main-
tains that:
the CIA has released thousands of pages of records that
reveal the Agency’s use of mail intercepts, phone inter-
cepts, penetrations of Cuban diplomatic missions and
other sources and methods used to collect information on
these Cuban personalities [and that] [i]n many instances,
the CIA cryptonyms for these operations already have
been released too, especially where these sources and
methods were connected to gathering information on
Cuban personalities.
Newman Decl. ¶ 8, App. 53–54. However, as Briick explained
in response to Newman’s conclusion that disclosure of the
Compendium would be harmless, the Agency has never ‘‘re-
leased any portion of the document in any form at any time,
whether as part of the [JFK Act] or otherwise.’’ Supplemen-
tal Declaration of Herbert Briick at ¶ 7 (Nov. 30, 2000), App.
58 (Briick Supp. Decl.). Briick attests, moreover, that
[R]elease of the information contained in the ‘Cuban
Personalities’ document would be expected to reveal the
identity of a confidential human source or reveal informa-
tion about the application of an intelligence source or
method, or reveal the identity of a human intelligence
information that deserves protection.’’ Oglesby v. Dep’t of the
Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996). We think that Briick’s
Declaration meets the Vaughn specificity standard.
8
source when the unauthorized disclosure of that source
would clearly and demonstrably damage the national
security interests of the United States.
Id. at ¶ 6, App. 58. Given our deference to the Agency’s
judgment on the matter, Sims, 471 U.S. at 179, we uphold the
Agency’s determination that disclosure of the Compendium,
even in light of the JFK Act disclosures, ‘‘can reasonably be
expected to lead to the disclosure of intelligence sources and
methods.’’ Gardels, 689 F.2d at 1103.
Regarding its waiver claim, AARC relies on Afshar v.
Department of State, 702 F.2d at 1130, which holds that an
agency may waive its claim that information is exempt from
disclosure if a FOIA plaintiff carries his ‘‘burden of pointing
to specific information in the public domain that appears to
duplicate that being withheld.’’ Id.; Public Citizen v. Dep’t
of State, 11 F.3d 198, 201 (D.C. Cir. 1993); Fitzgibbon, 911
F.2d at 765. Because the Compendium contains a compre-
hensive collection of information about Cuban operatives and
because the biographies of several Cuban operatives were
released under the JFK Act, AARC argues, at least some
information contained in the Compendium must have already
been disclosed; therefore, AARC concludes, the Agency has
waived Exemption 3 with regard to such material.4
Afshar requires a FOIA plaintiff to show that an agency’s
previous disclosure ‘‘appears to duplicate’’ the material
sought, Afshar, 702 F.2d at 1130, i.e., that the disclosure is
‘‘as specific as’’ and ‘‘match[es]’’ the sought material. Fitzgib-
bon, 911 F.2d at 765 (citing Afshar, 702 F.2d at 1133); Public
Citizen, 11 F.3d at 201. In Public Citizen v. Department of
State, the FOIA plaintiff sought the disclosure of documents
relating to a meeting between the then-Ambassador to Iraq
and the President of Iraq. 11 F.3d at 199. The plaintiff
4 Fitzgibbon emphasized that an agency waives an Exemption 3
claim only if it has made an ‘‘official disclosure’’ of the information.
Fitzgibbon, 911 F.2d at 765. Because we conclude infra that AARC
failed to show that the JFK Act disclosures revealed the ‘‘specific’’
information sought from the Compendium, we do not consider
whether the JFK Act disclosures were ‘‘official’’ under Fitzgibbon.
9
argued that the State Department had waived its Exemption
1 claim because the ambassador had testified before the
Congress about the meeting.5 We rejected the plaintiff’s
argument because it did not ‘‘meet Afshar’s requirement that
it show that [the ambassador’s] testimony was ‘as specific as’
the documents it seeks in this case, or that her testimony
‘matches’ the information contained in the documents.’’ Pub-
lic Citizen, 11 F.3d at 203 (citing Fitzgibbon, 911 F.2d at 765).
Even if her testimony effected ‘‘partial disclosures of classi-
fied information’’ contained in the requested documents, we
said, those disclosures did not result in waiver because they
did not precisely track the records sought to be released.
Public Citizen, 11 F.3d at 203–04.
Similarly, here, it may be that some information disclosed
pursuant to the JFK Act is included in the Compendium.6
5We noted in Public Citizen that Afshar is relevant to both
Exemptions 1 and 3. Public Citizen, 11 F.3d at 202 n.4.
6 We highlighted how specific the FOIA plaintiff’s showing must
be under Afshar in Davis v. Department of Justice, 968 F.2d 1276,
1279–80 (D.C. Cir. 1992). In that case, the Justice Department
resisted disclosure of tape recordings made during a criminal
investigation of a reputed mafioso. Id. at 1278. Although the
government conceded waiver as to the tapes that were played at
trial and agreed to release tapes for which the plaintiff could
provide trial transcripts, we held that the plaintiff’s reliance on
newspaper stories that generally referred to the tapes did not meet
the specificity requirement. Id. at 1280. We emphasized that the
plaintiff had to show ‘‘the exact portions’’ of the tapes that were
played. Id.
In Davis we also noted that as a practical matter waiver under
Afshar yields the FOIA plaintiff little new information. Id. In-
deed, if a plaintiff can establish that the specific records he seeks
have become ‘‘ ‘freely available, there would be no reason to invoke
the FOIA to obtain access to the information.’ ’’ Id. (quoting Dep’t
of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749,
764 (1989) (internal quotations omitted)). We suggested that, al-
though the government ‘‘[was] willing to give Davis only exactly
what he can find in hard copy,’’ that meant that Davis would receive
10
But AARC must show that information duplicates the con-
tents of the Compendium and it has not met this burden.
AARC’s only showing came from Newman who stated that
the CIA made ‘‘300,000 pages of its records available,’’ that
‘‘[a] very high percentage of this volume of documents con-
cerned Cuba, Cuban exiles and Cuban exile organizations’’
and that, in his judgment, ‘‘the overwhelming majority of
Cuban personalities in whom the CIA has had an interest
have been disclosed under the JFK Act.’’ Newman Decl. at
¶ ¶ 5, 9, App. 52, 54. Newman, however, made no specific
showing that any of the JFK Act disclosures revealed infor-
mation that is ‘‘as specific as’’ and ‘‘match[es]’’ that included
in the Compendium. Fitzgibbon, 911 F.2d at 765. In fact,
what we know about the contents of the Compendium comes
from the Agency, which explains that the Compendium repre-
sents ‘‘the pool in 1962 of potential intelligence sources or
targets of CIA intelligence collection,’’ First Briick Decl. ¶ 15,
App. 34, and that it has ‘‘never released this document, nor
has it ever released any portion of the document in any form
at any time, whether as part of the [JFK Act] or otherwise.’’
Briick Supp. Decl. at ¶ 6, App. 58. Because we cannot
conclude that AARC has shown that specific portions of the
Compendium have been disclosed, we reject its contention
that the Agency has waived FOIA Exemption 3.
For the foregoing reasons, we affirm the judgment of the
district court.
So ordered.
‘‘merely the added value of voice inflection’’ if he established waiver.
Id.