On Appeal From the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 83-4916.
Sloviter, Becker and Garth, Circuit Judges.
This case concerns a Freedom of Information Act request by the American Friends Service Committee (AFSC) addressed to the Department of Defense (DoD) pursuant to 5 U.S.C. § 552. DoD denied the request, invoking two exemptions in support of its denial. The first, contained in 5 U.S.C. § 552(b)(1), is the national security exemption. The second, contained in id. § 552(b)(3), concerns material whose withholding has been authorized by another statute. In this case the other statute is 10 U.S.C. § 140(a), which authorizes the Secretary of Defense to withhold
technical data with military or space application . . . if such data may not be exported lawfully outside the united States without an approval, authorization, or license under the . . . Arms Export Control Act.
AFSC brought suit to challenge the DoD's denial of its request. On the strength of three affidavits submitted by DoD, and over a single affidavit submitted by an expert on behalf of the AFSC, the district court granted summary judgment in favor of DoD. AFSC appeals.
points -- the validity of its "compilation" theory, the inapplicability to this case of the doctrine of segregability, and the standard of review, which requires that considerable deference be given to DoD's judgments regarding national security. We nonetheless vacate and remand so that the district court can resolve factual disputes in the record. We begin by explaining the nature of the documents sought and withheld. We then turn to the merits of the bases for withholding.
I. THE DOCUMENTS AT ISSUE
AFSC seeks the disclosure of a series of documents called Technical Abstract Bulletins, or TABs. TABs, which are published biweekly, contain the titles of research reports prepared for DoD by DoD scientists, engineers and contractors. The reports themselves are released to the public unless they must be classified. The first section of the TABs contain
citations to every classified and/or limited distribution technical report by accession number, corporate author, subject category designators, . . . title descriptive note, originator/sponsor, report numbers, author, date, number of pages, project/task numbers, contract number, report classification, distribution list, descriptors of the report's contents, and an abstract or summary of the report's contents. The second section of each TAB consists of eight indexes to the technical reports described in the first section, including indexes by subject category . . ., subject and author.
Appellee's Br. at 5. The TABs do not contain entries for reports classified as Top Secret; neither do they contain entries if the individual entry itself contains classified information. Appellant's Br. at 9.
On the basis of his review of four TABs which have been released, AFSC's expert opines that "very few reports are summarized." Johnson Aff. at 2 par. 5, appendix at A-152. But one of DoD's experts, who reviewed all of the TABS generated in that year, appears to say that 74 % of all entries in 1983 TABs contain abstracts. Robey Aff. at par. 4, appendix at A-148. We return below to this difference of opinion.
II. WITHHOLDING TO PROTECT NATIONAL SECURITY: EXHIBIT (b)(3)
A. The Compilation Theory
The national security exemption is invoked here on the theory that, while the individual entries are not classified or (therefore) withholdable, the aggregation is withholdable on the "compilation" theory.
The national security exemption concerns 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). In conformity with this requirement, Executive Order 12,356 provides for the classification of information which "either by itself, or in the context of other information reasonably could be expected to cause damage to national security." While AFSC does not contest the validity of the compilation theory,*fn1 it does argue that DoD is obliged to produce those portions of the requested material which can be segregated from the information whose disclosure would damage the national security. Apart from its segregability contention, AFSC also contends that in light of the factual record, ...