The opinion of the court was delivered by: LACEY
The plaintiff Marc J. Medoff was, at all times pertinent to this action, an undergraduate student at the Teaneck campus of Fairleigh Dickinson University (FDU) and editor-in-chief of the school newspaper, The Gauntlet. The plaintiff seeks disclosure by the defendant, Central Intelligence Agency (CIA), pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, of certain documents allegedly contained in the CIA's files.
On February 5, 1977, in an effort to determine the existence and extent of contacts between FDU, its staff and faculty, and the CIA, the plaintiff filed an FOIA request for access to "all past and present contractual arrangements or agreements and personnel relationships between the CIA and Fairleigh Dickinson University . . . ." (Complaint Ex. A). On June 15, 1977 the plaintiff filed an additional request for "a copy of all files that the CIA has on contacts, approaches, and surveillance, that it has conducted with students, faculty, staff, or administrators, at Fairleigh Dickinson University . . . ." (Complaint Ex. B).
The plaintiff's brief indicates that, by letter of February 23, 1977, Andrew T. Falkiewicz, Assistant to the Director of the CIA, admitted that the CIA maintains several types of relationships with academic institutions throughout the country, but that these relationships are usually kept confidential, occasionally at the request of the CIA but more often at the request of the individual institution involved. This letter does not appear of record and has not been considered in the decision of this motion. The foregoing summary of its contents is merely provided as background.
By letter of July 1, 1977 (Complaint Ex. C) the plaintiff was advised that his requests for access to CIA documents had been denied. The letter indicated that a search of the CIA's files had disclosed some material which originated with the National Security Agency (NSA) and that the plaintiff's request, insofar as such material was concerned, had been referred to that agency for its independent review. The letter continued:
As required by the FOIA, the denial letter advised the plaintiff of his right to appeal. He availed himself of this right by letter of July 25, 1977. (Complaint Ex. D). The decision was affirmed, on November 10, 1977, by the CIA's Information Review Committee (Complaint Ex. E), the highest available level of administrative recourse. (Affidavit of John F. Blake (Blake affidavit), P 5). In the same letter the plaintiff was advised that the NSA had determined that the material referred to it by the CIA did not fall within the scope of the plaintiff's request.
The plaintiff availed himself of his right to judicial review of the adverse administrative determination by filing the instant action. 5 U.S.C. § 552(a) (4)(B). Having exhausted his administrative remedies, the plaintiff is properly before this court.
Plaintiff is now here on a two-pronged motion for an order requiring the CIA to provide (1) "a detailed justification for any allegation that the documents requested by plaintiff in his Complaint are exempt from disclosure . . . including an itemization and index which correlates specific statements in such justification with actual portions of the requested documents," pursuant to 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), and (2) a "detailed justification for their claim that they cannot confirm or deny the existence of the requested documents," pursuant to Phillippi v. CIA, 178 U.S.App.D.C. 243, 546 F.2d 1009 (1976).
The defendants initially submitted, allegedly in satisfaction of the relief requested by the motion, the affidavit of John F. Blake, Deputy Director of the CIA and Chairman of that agency's Information Review Committee. This first Blake affidavit failed to provide any more information about specific documents than the plaintiff had been given at the administrative level: "(T)he CIA neither confirms nor denies the existence of a confidential relationship with any institution, its personnel or students." (P 15). The refusal to provide specific information, the affidavit explains, is based on the vital nature of academic contacts to the CIA mission (PP 7, 8, 10, 12), the need for confidentiality in order to maintain academic contacts (PP 12, 14), and the position that any admission of the existence of contacts with a particular institution, even by implication, would permit identification of "classified information, intelligence sources and methods," contrary to the national interest in maintaining an effective intelligence service (P 14).
Following oral argument before this court, the Blake affidavit was supplemented by another affidavit of Mr. Blake (Supplemental affidavit) intended "to clarify certain information therein and to present further information to the Court and to the plaintiff." (Supplemental affidavit, P 1). In this affidavit Mr. Blake distinguishes between information concerning "overt" and "covert" CIA activities. (P 2). The affidavit fails to define the distinction between overt and covert. Neither does it refer the court to any statutory or common law definition of the terms. Nonetheless, the Supplemental affidavit goes on to state that a second search of CIA files revealed three "overt" documents, "form-type communications from the placement office" of FDU (P 5), all of which have been turned over to the plaintiff.
As to documents concerning covert CIA activities, if any, it is axiomatic that Both their Existence (or non-existence) and relevant Details (if any) must remain secret. Any listing, such as contemplated in a Vaughn Motion (sic), regardless of the detail and notwithstanding a withholding of the documents, would reveal at a minimum the existence of the covert activity, if not some details. Thus, whenever a FOIA request is received which inquires into an activity which, if it existed, would constitute a covert CIA activity, then the Agency must respond by neither confirming nor denying the existence of records.
The Supplemental affidavit reiterates the existence of some covert contacts between CIA's Directorate of Operations and some academic institutions, but refuses to specify the nature of those ...