Defendant's Reply Brief

08/18/1999

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

THE JAMES MADISON PROJECT

Plaintiff

v. Civil Action No. 98-2737 (TPJ)

NATIONAL ARCHIVES AND RECORDS
ADMINISTRATION

Defendant

MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF PLAINTIFF'S MOTION FOR DISCOVERY
OR, IN THE ALTERNATIVE, A SUPPLEMENTAL VAUGHN INDEX
(ORAL ARGUMENT REQUESTED)

Plaintiff The James Madison Project ("JMP") brought this action pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (a), et seq., as amended, against the defendant National Archives and Records Administration ("NARA") seeking the release of the six oldest classified records in NARA's possession. The documents, which were identified as dating back to 1917-18, pertain to "secret ink"; a centuries old technique for passing undetected messages. The documents primarily discuss the use and detection of formulas utilized by the Axis Power Germany during World War One. Release of the documents has been denied by the Central Intelligence Agency ("CIA") on the alleged basis that disclosure is expected to damage the national security interests of the United States.

Answering the question of whether the CIA has classification or declassification authority over these six documents is paramount before a decision can be reached by this Court. As the Government has introduced factual evidence alleging the CIA does possess proper authority, it is only appropriate - and indeed necessary - to permit the JMP to conduct discovery in order to challenge the Government's position.

PROCEDURAL HISTORY

This action was filed on November 9, 1998. On March 29, 1999, the defendant filed a Motion to Dismiss or for Summary Judgment alleging that the Court lacks subject matter jurisdiction and that the JMP failed to state a claim upon which relief can be granted pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Procedure, respectively. It also alleged that there were no genuine issues of material fact thereby entitling it to judgment as a matter of law.

The JMP filed an Opposition and Cross-Motion to Strike the Declaration of Teresa Wilcox on May 21, 1999. In its response, the JMP identified that the records in question all originated with agencies other than the CIA, not merely because the CIA did not even exist at the time the records were created but because the Government had, in fact, identified several of the originating agencies for the records in its submitted Vaughn index. Opposition to Defendant's Motion to Dismiss or for Summary Judgment and Cross-Motion to Strike the Declaration of Teresa Wilcox (filed May 21, 1999) at 21-24. Furthermore, the relevant Executive Order, E.O. 12,958, governing the classification/declassification authority of records mandates certain procedures that did not appear to be met. Id.

The defendant responded with its Opposition/Reply on July 26, 1999. It supplemented its position with two additional declarations from the CIA and NARA which included correspondence between NARA (under its old name of the National Archives and Records Service) and the CIA which purport to transfer classification/declassification authority over certain categories of information on secret inks. Attachments to Second Declaration of Steven D. Tilley (filed July 26, 1999).

ARGUMENTS

I. DISCOVERY IS NECESSARY TO CHALLENGE THE ALLEGED TRANSFER OF CLASSIFICATION/DECLASSIFICATION AUTHORITY FROM THE ORIGINATING AGENCIES AND NARA TO THE CIA

It is well-settled that discovery is an important tool for FOI/PA litigants to utilize in their cases against a government agency. Washington Post Co. v. U.S. Department of State, 840 F.2d 26, 38 (D.C.Cir. 1988). See also Military Audit Project v. Casey, 656 F.2d 724, 752 (D.C.Cir. 1981)("We are well aware of the advantages of adversary procedures in testing the strength of the government's position in FOIA cases - even those involving claims of secrecy"). The JMP is well aware, as NARA will undoubtedly point out, that a plaintiff's typical free reign to conduct discovery is more narrow in FOIA cases. Katzman v. Freeh, 926 F.Supp. 316, 319 (E.D.N.Y. 1996). Nevertheless, this is the exact type of situation in a FOIA case that requires discovery.

Where controverted issues of fact and policy exist "there is a right of confrontation ... and so the parties should have the right to examine the affiants either by depositions or in open court ... [T]he case should be tried like any other adversary proceeding." Washington Post, 840 F.2d at 30, quotingSear, Roebuck & Co. v. GSA, 553 F.2d 1378, 1383, cert. denied, 434 U.S. 826 (1977); see also Armstrong v. Bush, 139 F.R.D. 547, 553 (D.D.C. 1991)(discovery permitted to test government's claim that request for electronically stored records "would place an unreasonable burden on the agency"); Van Strum v. EPA, 680 F.Supp. 349, 350-51 (D.Or. 1987)(discovery appropriate where documents received by anonymous source raise "valid concerns" of affiant's credibility and good faith of search").

The JMP has appropriately set forth herein why it cannot fully present facts needed to defeat the NARA's motion. Strang v. United States Arms Control & Disarmament Agency, 864 F.2d 859, 861 (D.C.Cir. 1989). Moreover, the timing for discovery is ripe as NARA has submitted a Motion for Summary Judgment with supporting affidavits and a memorandum of law. See e.g.,Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993) (discovery appropriate after the government has first had a chance to provide the court with the information necessary to make a decision).

Whether the CIA possesses appropriate authority over the six relevant records is, at least in part, a question of fact that has been introduced into the equation by the Government itself. Discovery would particularly focus upon the existence of any additional documentation pertaining to the guidelines regarding the disclosure of records involving secret writing, further identification of what was understood by both the CIA and NARA with respect to the term "secret inks" (given the existence of noted exceptions to certain types of secret writing use and detection techniques as described below) and the authority of NARA to strip and transfer classification/declassification authority from one agency to another without specific authorization.

Therefore, the JMP is entitled to submit written interrogatory and document production requests pursuant to Rules 33 and 34 of the Federal Rules of Civil Procedure. The burden of such limited intrusive discovery imposes little, if any, prejudice upon the defendant. However, additionally, the JMP should be permitted to take the depositions of one or more CIA or NARA officials to be named pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure.

II. DEFENDANT SHOULD BE REQUIRED TO PRODUCE ANOTHER VAUGHN INDEX

Should this Court not permit the JMP to conduct discovery or agrees that the CIA possesses proper classification/declassification authority, then the CIA should be required to submit a supplemental Vaughn Index ensuring that all segregable portions of the records are released per the agreement reached between the CIA and NARA in 1973.

An agency's production of a Vaughn index is a standard procedure preceding a challenge in district court to the appropriateness of the government's redactions. Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). There is no dispute that the defendant bears the burden of sustaining its action of withholding records. 5 U.S.C. § 552(a)(4)(B). The use and value of a document index, however it might be called, to enable a court to determine whether a withholding is valid is so well-known that additional legal introductions are unnecessary.

Along with NARA's initial Motion, the CIA submitted a Declaration of Teresa Wilcox ("Wilcox Decl.")(filed March 29, 1999). Within the Wilcox Declaration was the Government's Vaughn Index (or "Document Disposition Index" as the CIA calls it) which generally described the contents of the six withheld records. Wilcox Decl. at 21-28. The CIA asserted that "no meaningful segregable portions of information" could be released. Id. at 21. However, that assertion has now been called into question by documentation submitted with NARA's subsequent responsive pleading.

By letter dated May 31, 1973, NARA allegedly established guidelines for the withholding of information pertaining to secret inks. Attachment 1(B) to the Declaration of Steven D. Tilley (filed July 26, 1999)("Tilley Decl."). The document reads, in pertinent part:

Id. at 1. The CIA explicitly agreed to follow these guidelines. Tilley Decl. at Attachment 1(C). No other documents have been produced that indicate any change of or modification to these guidelines has occurred since 1973.

A review of the CIA's original Vaughn Index does not reveal whether any of the information contained with the six records falls within the agreed-upon excluded topic areas as set forth in 1973. Indeed, the descriptions of the records suggest that such information is, in fact, included within the withheld records. Any information that does fall within areas (aa) - (cc) as identified in the May 31, 1973, letter must be released as segregable information. 5 U.S.C. § 552(b).

Before the CIA, through NARA, can absolutely withhold these six records, it must comply with the FOIA. It will not have done so until it produces a sufficiently detailed Vaughn Index asserting that the agreed-upon exceptions are not applicable. See e.g., Bay Area Lawyers Alliance for Nuclear Arms Control v. Department of State, 818 F.Supp. 1291, 1300 (N.D.Cal. 1992)("boilerplate" statement that "no segregation of non-exempt, meaningful information can be made for disclosure" deemed "entirely insufficient"); Armstrong v. Executive Office of the President, No. 89-142, slip op. at 24-26 (D.D.C. July 28, 1995)(agency must explain, on document-by-document basis, rationale for nondisclosure).

Thus, the CIA must submit an additional Vaughn Index.

CONCLUSION

For the foregoing reasons asserted above, the JMP is entitled to discovery or, in the alternative, the defendant should be required to submit an additional Vaughn Index.

Date: August 18, 1999

ORAL ARGUMENT REQUESTED

Respectfully submitted,

_________________________

Mark S. Zaid, P.C.

D.C. Bar #440532

1501 M Street, N.W.

Suite 1175

Washington, D.C. 20005

(202) 785-3801

_________________________

Charles J. Sanders, Esq.

D.C. Bar #394793

Attorneys for Plaintiff


CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 18th day of August 1999, a copy of the foregoing Plaintiff's Motion for Discovery or, in the Alternative, a Supplemental Vaughn Index was mailed, first-class and postage-prepaid, to:

Fred E. Haynes

Assistant U.S. Attorney

Judiciary Center Building

555 Fourth Street, N.W.

Room 10-455

Washington, D.C. 20001

Attorney For Defendant

_____________________________

Mark S. Zaid, Esq.