Maynard v. Agency
Case Date: 02/12/1993
Court: United States Court of Appeals
Docket No: 91-1334
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F e b r u a r y 1 1 , 1 9 9 3 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 91-1334 BEATRICE MAYNARD, Plaintiff, Appellee, v. CENTRAL INTELLIGENCE AGENCY, Defendant, Appellant. ____________________ No. 92-1615 BEATRICE MAYNARD, Plaintiff, Appellant, v. CENTRAL INTELLIGENCE AGENCY, ET AL., Defendants, Appellees. ____________________ ERRATA SHEET The opinion of this Court issued on February 4, 1993, is amended as follows: On page 3, line 7, delete "lower court's". On page 3, after "it." on line 3 of second paragraph, add footnote 3 as follows: For the record, that order was not issued by the Judge from whose final orders the appeal is taken." On page 34, line 17, replace "appropriate" with "inappropriate". February 11, 1993 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 91-1334 BEATRICE MAYNARD, Plaintiff, Appellee, v. CENTRAL INTELLIGENCE AGENCY, Defendant, Appellant. ____________________ No. 92-1615 BEATRICE MAYNARD, Plaintiff, Appellant, v. CENTRAL INTELLIGENCE AGENCY, ET AL., Defendants, Appellees. ____________________ ERRATA SHEET The opinion of this Court issued on February 4, 1993, is amended as follows: On page 47, last line, replace "Costs to appellees." with ___________________ "Costs to appellees in No. 92-1615 and to appellant in No. 91- _____________________________________________________________ 1334." ____ February 5, 1993 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 91-1334 BEATRICE MAYNARD, Plaintiff, Appellee, v. CENTRAL INTELLIGENCE AGENCY, Defendant, Appellant. ____________________ No. 92-1615 BEATRICE MAYNARD, Plaintiff, Appellant, v. CENTRAL INTELLIGENCE AGENCY, ET AL., Defendants, Appellees. ____________________ APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. D. Brock Hornby, U.S. District Judge] ___________________ ____________________ Before Breyer, Chief Judge, ___________ Campbell, Senior Circuit Judge, ____________________ and Torruella, Circuit Judge. _____________ ____________________ Steven J. Lyman with whom Law Office of Carl D. McCue was on _______________ ___________________________ brief for plaintiff. John P. Schnitker, Appellate Staff, Civil Division, Department of _________________ Justice, with whom Stuart M. Gerson, Assistant Attorney General, ________________ Richard S. Cohen, United States Attorney, and Leonard Schaitman, ________________ _________________ Appellate Staff, Civil Division, Department of Justice, were on briefs for defendants. ____________________ February 4, 1993 ____________________ CAMPBELL, Senior Circuit Judge. Plaintiff Beatrice ____________________ Maynard brought this action in the district court to compel disclosure under the Freedom of Information Act ("FOIA"), 5 U.S.C. 552, of certain government documents and parts of documents pertaining to the disappearance of her former husband, Robert Thompson, during a flight over Cuba in December of 1961. Maynard had sought information about this from various agencies, including the Central Intelligence Agency ("CIA"), the Federal Bureau of Investigation ("FBI"), the Defense Intelligence Agency ("DIA"), the State Department, the Immigration and Naturalization Service ("INS"), the United States Customs Service ("Customs Service"), the Federal Aviation Administration ("FAA"), the National Personnel Records Center ("NPRC"), and the Navy Department.1 While certain records and other materials were provided to her, Maynard felt that she was entitled to more, and so brought this suit. After reviewing several documents in camera, the __ ______ district court ordered disclosure of two items of information one name and one paragraph that the government had expressly redacted from materials it had furnished to plaintiff. The CIA appeals from the court's direction to reveal the paragraph, arguing that the paragraph was properly ____________________ 1. The district court granted the parties' stipulated dismissal of the FAA, the NPRC, and the Navy in February 1990. -4- withheld under FOIA's Exemptions 1 and 3, 5 U.S.C. 552(b)(1), (3).2 In all other respects, the district court granted summary judgment in favor of the defendant agencies, denying plaintiff's requests for further information, for further document searches, and for attorney's fees. Plaintiff now appeals from these judgments. Finding that Exemptions 1 and 3 authorize the CIA's withholding of the redacted paragraph, we reverse the order requiring the CIA to disclose it3. We affirm the district court's grant of summary judgment for the defendant agencies. I. I. 1. The CIA's Appeal ________________ On January 22, 1987, plaintiff submitted FOIA requests to the defendant agencies, seeking any information ____________________ 2. FOIA Exemption 1 provides that the FOIA's disclosure requirements do not apply to matters that are "(1)(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). The information at issue here was classified pursuant to Executive Order 12356, 47 Fed. Reg. 14874 (1982). FOIA Exemption 3 pertains to matters that are exempted from disclosure by a statute that either "(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). The exempting statute here is 50 U.S.C. 403(d)(3), which provides that "the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure." 3. For the record, that order was not issued by the Judge from whose final orders the appeal is taken. -5- they might have concerning her former husband, Robert Thompson. She said he disappeared along with Robert Swanner on a flight over Cuba, in December of 1961. Thompson apparently was involved in the distribution of anti-Castro leaflets; plaintiff believed him to have worked for the CIA. Among documents produced by the FBI in response to plaintiff's requests was a redacted memo dated December 22, 1961. The FBI informed plaintiff that the excised information had originated with the CIA and was being withheld under FOIA Exemptions 1 and 3 at the CIA's request. Plaintiff brought this action in the district court in February 1988, seeking more complete disclosure, including disclosure of the withheld paragraph. After the agency defendants moved for summary judgment, the district court in March of 1990 ordered the government to submit for the court's in camera inspection all __ ______ withheld and redacted documents in their complete form. The government did so on May 1, 1990. Among the documents submitted were thirty-two pages the FBI had located in its search for documents responsive to plaintiff's FOIA request.4 This material included the redacted memo of ____________________ 4. The State Department also submitted for in camera review __ ______ a document on which the State Department had redacted certain identifying information, such as the names of individuals, for personal privacy concerns pursuant to FOIA Exemption 6. -6- December 22, 1961 that has since become the subject of the CIA's appeal. To help explain its position, the CIA submitted to the district court the public declaration of Katherine M. Stricker, an Information Review Officer for the CIA's Directorate of Operations. With respect to Exemption 1, which exempts national security information classified pursuant to an Executive Order, Stricker explained that she had personally reviewed the classification determinations under the standards of Executive Order 12356. Based on that review, Stricker determined that the withheld information would "reveal the identity of an intelligence source or disclose an intelligence method," the unauthorized disclosure of which, "either by itself or in the context of other information, reasonably could be expected to cause damage to the national security." See Executive Order 12356, ___ 1.3(a)(4), (c), 47 Fed. Reg. 14874, 14876. Accordingly, she said, the information was properly classified at the "SECRET level" and was exempt from disclosure under FOIA Exemption 1. With respect to Exemption 3, which protects information exempted from disclosure by statute, Stricker explained that, similar to Executive Order 12356, the National Security Act, 50 U.S.C. 403(d)(3), requires the Director of the CIA to protect intelligence sources and methods from unauthorized disclosure. Stricker concluded -7- that the redacted information fell within the ambit of the statute because it identified the use of particular intelligence methods used during specific time periods. According to Stricker, the release of such information would allow hostile intelligence organizations to neutralize the use of those methods, thereby causing a concomitant loss of intelligence. On November 14, 1990, the district court ordered the government to give to plaintiff information from three of the documents subject to in camera review. This included the __ ______ information at issue here the third full paragraph on page 2 of the December 22, 1961 memo.5 The CIA moved for reconsideration of the portion of the court's order regarding the redacted paragraph and submitted an in camera declaration __ ______ by Stricker, which explained in further detail the nature of the information withheld. On February 1, 1991, the district court granted the CIA's motion for reconsideration, but on reconsideration, the court affirmed its earlier ruling, finding that "the movant's assertion that disclosure will ____________________ 5. The district court's order of November 14, 1990, also required disclosure of material contained in two other documents: (1) a single name (E.L. Johnson) contained in an FBI document dated November 20, 1961; and (2) the third full paragraph of an FBI memorandum dated July 5, 1962. The FBI requested the district court to reconsider the portion of the order regarding the July 5, 1962 memorandum, arguing that the material was exempt from disclosure under FOIA Exemption 7(D) as information obtained from a confidential source. The district court granted the FBI's motion for reconsideration and vacated that portion of its order on February 1, 1991. -8- 'reveal its sources and methods' in a matter now approximately thirty years old is without substance and is, indeed, the height of bureaucratic disingenuousness." The CIA appeals from this order. -9- A. FOIA Exemption 3 ________________ The FOIA gives members of the public access to documents held in government files. Every federal agency "upon any request for records which . . . reasonably describes such records" must make the records "promptly available to any person." 5 U.S.C. 552(a)(3). Nine categories of documents are exempted from this broad disclosure requirement. Exemption 3 permits a federal agency to withhold matters that are: (3) specifically exempted from disclosure by statute . . . 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). Two questions need to be answered in determining whether Exemption 3 applies in a particular situation. CIA v. Sims, 471 U.S. 159, 167 (1985). First, ___ ____ does the statute constitute a "statutory exemption to disclosure within the meaning of Exemption 3"? Second, is the requested information "included within" the statute's "protection"? Id. ___ The first question has already been answered affirmatively for present purposes. In Sims, the Supreme ____ Court held that 50 U.S.C. 403(d)(3), which provides that "the Director of Central Intelligence shall be responsible -10- for protecting intelligence sources and methods from unauthorized disclosure," is an Exemption 3 statute because it specifies the types of material to be withheld under subpart (B) of the Exemption. 471 U.S. at 167-68; accord ______ Knight v. CIA, 872 F.2d 660, 663 (5th Cir. 1989), cert. ______ ___ _____ denied, 494 U.S. 1004 (1990); Miller v. Casey, 730 F.2d 773, ______ ______ _____ 777 (D.C. Cir. 1984). In answering the second question whether the requested information is included within the statute's "protection" this court has stated that, once a court determines that the statute in question is an Exemption 3 statute, and that the information requested at least arguably falls within the statute, FOIA de novo review normally ends. __ ____ Aronson v. IRS, 973 F.2d 962, 965, 967 (1st Cir. 1992). _______ ___ The Supreme Court has said, it is the responsibility of the Director of Central Intelligence, not that of the judiciary, to weigh the variety of complex and subtle factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the Agency's intelligence- gathering process. Sims, 471 U.S. at 180. In the intelligence area, the Court ____ has commented that judges "have little or no background in the delicate business of intelligence gathering" and may be unable to comprehend the significance of material that appears to be innocuous, but in fact can reveal a significant intelligence source or method. Id. at 176. Therefore, in ___ -11- determining whether withheld material relates to intelligence sources or methods, a court must "accord substantial weight and due consideration to the CIA's affidavits." E.g., ____ Fitzgibbon v. CIA, 911 F.2d 755, 762 (D.C. Cir. 1990); see __________ ___ ___ Sims 471 U.S. at 170 ("Congress intended to give the Director ____ of Central Intelligence broad power to protect the secrecy and integrity of the intelligence process"). We have examined the unredacted version of the December 22, 1961 memorandum. In our opinion, it is at very least "arguable" that the requested paragraph falls within 50 U.S.C. 403(d)(3) for the reason the CIA gave, to wit, that it could reveal intelligence methods. See Sims, 471 U.S. at ___ ____ 180-81; Aronson, 973 F.2d at 967. Giving due deference to _______ the agency's determination, we hold that the paragraph is exempt from disclosure under FOIA Exemption 3 and 50 U.S.C. -12- 403(d)(3). The district court erred in ruling otherwise.6 B. FOIA Exemption 1 ________________ While our decision under Exemption 3 ends the matter, we note that FOIA Exemption 1 leads to the same result. Exemption 1 permits the withholding of matters that are: (1)(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). Executive Order 12356, upon which the CIA relies, specifically authorizes the withholding of information concerning "intelligence sources and methods," ____________________ 6. We do not agree with the district court that merely because the information here is thirty years old, it cannot detrimentally reveal intelligence sources or methods. Plaintiff conceded at oral argument before this court that if the withheld information relates to intelligence sources or methods, the passage of thirty years, by itself, is insufficient to require an agency to disclose the information. Courts have generally rejected the contention that the mere age of intelligence information rules out Exemption 3. Fitzgibbon, 911 F.2d at 763-64. Reluctance __________ stems from recognition that it is virtually impossible for an outsider to ascertain what effect the passage of time may or may not have had to mitigate the harm from disclosure of sources and methods. Such is true, certainly, as to events that have occurred well within the careers of living persons including governmental leaders (like Cuba's leader) still in power. The CIA, not the judiciary, is better able to weigh the risks that disclosure of such information may reveal intelligence sources and methods so as to endanger national security. Courts have accordingly upheld pursuant to Exemption 3 and 50 U.S.C. 403(d)(3) the withholding of information as old as that sought by plaintiff here. Sims, ____ 471 U.S. at 180 (approximately thirty-year-old information); Fitzgibbon 911 F.2d at 763-64 (same). __________ -13- 1.3(a)(4), 47 Fed. Reg. 14874, 14876, and declares that unauthorized disclosure of "intelligence sources and methods" is "presumed to cause damage to the national security," 1.3(c), 47 Fed. Reg. at 14876. When, as here, Exemptions 1 and 3 are claimed on the basis of potential disclosure of intelligence sources or methods, the standard of reviewing an agency's decision to withhold information is essentially the same.7 Hrones v. ______ CIA, 685 F.2d 13, 17 (1st Cir. 1982); Military Audit Project ___ ______________________ v. Casey, 656 F.2d 724, 736-37 n.39 (D.C. Cir. 1981) _____ (Exemption 3 and 1 provide overlapping protection in cases involving intelligence sources and methods); see Sims, 471 ___ ____ U.S. at 190 n.6 (Marshall, J., concurring) (current Executive Order 12356 moves Exemption 1 closer to Exemption 3 than its predecessor Executive Order 12065). Courts, therefore, accord substantial deference to the CIA's determination that information must be withheld under Exemption 1, and will uphold the agency's decision so long as the withheld information "logically falls into the category of the exemption indicated," and there is no evidence of bad faith ____________________ 7. Although the standards are substantially identical, courts, in reviewing Exemption 1 claims, state that their review is de novo. E.g., Goldberg v. United States Dept. of __ ____ ____ ________ ______________________ State, 818 F.2d 71, 77 (D.C. Cir. 1987), cert. denied, 485 _____ ____________ U.S. 904 (1988). In carrying out this de novo review, courts __ ____ "accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record." S. Conf. Rep. No. 1200, 93d Cong., 2d Sess. 12 (1974), reprinted in 1974 U.S.C.C.A.N. 6290. ____________ -14- on the part of the agency. E.g., Bell v. United States, 563 ____ ____ _____________ F.2d 484, 487 (1st Cir. 1977); King v. United States Dep. of ____ _____________________ Justice, 830 F.2d 210, 217 (D.C. Cir. 1987). As already _______ stated, the information withheld by the CIA in this case "arguably" or "logically" pertains to intelligence methods. There is no evidence of bad faith on the part of the agency.8 The redacted paragraph is, therefore, exempt from disclosure under FOIA Exemption 1 as well as under Exemption 3.9 ____________________ 8. Plaintiff contends that the district court improperly denied discovery, which could have revealed agency bad faith. To support this argument, plaintiff cites Weisberg v. United ________ ______ States Dept. of Justice, 627 F.2d 365, 370-71 (D.C. Cir. _________________________ 1980), in which the D.C. Circuit noted that discovery may be appropriate when the adequacy of an agency's search is in doubt. As discussed below, the agencies' affidavits demonstrate that their searches here were adequate. See ___ Gillin v. IRS, No. 92-1803, slip. op. at 10 (1st Cir. ______ ___ December 7, 1992) (citing Goland v. CIA, 607 F.2d 339, 355 ______ ___ (D.C. Cir. 1978)) (absent showing of bad faith sufficient to impugn agency's affidavit demonstrating adequacy of search, district court has discretion to forego discovery), cert. _____ denied, 445 U.S. 927 (1980). In any case, plaintiff's claims ______ that the district court abused its discretion by denying her discovery are devoid of merit. See infra at 42-43. Thus, ___ _____ Weisberg is inapposite. ________ 9. As with Exemption 3, the passage of some thirty years does not, by itself, invalidate the CIA's showing under Exemption 1. Executive Order 12356 provides, without time limit, that "[i]nformation shall be classified as long as required by national security considerations." 1.4(a), 47 Fed. Reg. at 14877. Unlike its predecessor Executive Order 12065, Executive Order 12356 does not create a presumption favoring disclosure of information once it reaches a certain age. Courts have recognized that it would be extremely difficult for the judiciary to set particular time limitations upon Exemption 1, at least within time parameters of the duration we are discussing here. Bonner v. United ______ ______ States Dept. of State, 724 F. Supp. 1028, 1033 n.15 (D.D.C. _____________________ -15- 2. Plaintiff's Appeal __________________ Plaintiff alleges numerous errors in the district court's discovery orders, grants of summary judgment, and denial of attorney's fees. Plaintiff complains specifically of the following district court actions: 1) denying plaintiff's request for Vaughn indices;10 2) ruling that ______ the defendant agencies had conducted adequate searches; 3) ruling that the government had properly claimed exemptions under the FOIA; 4) denying various discovery requests; and 5) denying attorney's fees to plaintiff. We address each of these claims of error and find that none has any merit. A. Vaughn Index ____________ ____________________ 1989), vacated on other grounds, 928 F.2d 1148 (D.C. Cir. _________________________ 1991). In this case, after review of the paragraph in question, Information Review Officer Stricker concluded that the "classification [of this information] should be maintained" in the interests of national security. We are not in a position to "second-guess" the CIA's conclusion regarding the need for continued classification of this material. Branch v. FBI, 700 F. Supp. 47, 48-49 & n.4 ______ ___ (D.D.C. 1988); see Sims, 471 U.S. at 178 ("[w]hat may seem ___ ____ trivial to the uninformed, may appear of great moment to one who has a broad view of the scene and may put the questioned item of information in its proper context.") (citations and internal quotations omitted); Bell, 563 F.2d at 486-87 ____ (upholding under Exemption 1 the withholding of approximately thirty-year-old information). But see Wiener v. FBI, 943 _______ ______ ___ F.2d 972, 981 n.15 (9th Cir. 1991) (asking under Executive Order 12356 whether it is reasonable to expect disclosure of a twenty-year-old investigation to reveal the existence of a current intelligence investigation), cert. denied, 112 S. Ct. ____________ 3013 (1992). 10. The name of these indices is derived from the seminal case, Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. ______ _____ _____ denied, 415 U.S. 977 (1974). ______ -16- Plaintiff contends that the district court erred in denying plaintiff's motion to compel each defendant agency to prepare a Vaughn index. A Vaughn index correlates ______ ______ information that an agency decides to withhold with the particular FOIA exemption or exemptions, explaining the agency's justification for nondisclosure. E.g., Curran v. ____ ______ Department of Justice, 813 F.2d 473, 475 n.4 (1st Cir. 1987); _____________________ Wightman v. Bureau of Alcohol, Tobacco & Firearms, 755 F.2d ________ _____________________________________ 979, 981 n.1 (1st Cir. 1985). An adequate Vaughn index ______ serves three functions: it forces the government to analyze carefully any material withheld, it enables the trial court to fulfill its duty of ruling on the applicability of the exemption, and it enables the adversary system to operate by giving the requester as much information as possible, on the basis of which he can present his case to the trial court. Keys v. United States Dept. of Justice, 830 F.2d 337, 349 ____ ______________________________ (D.C. Cir. 1987) (quoting Lykins v. United States Dept. of ______ ______________________ Justice, 725 F.2d 1455, 1463 (D.C. Cir. 1984)). We find no _______ merit in plaintiff's claim of improper denial of Vaughn ______ indices here.11 A Vaughn index was obviously not ______ ____________________ 11. Although plaintiff frames her claim as one of improper denial of Vaughn indices, her brief suggests that plaintiff ______ also contests the adequacy of the Vaughn indices that were, ______ in fact, provided by certain of the defendant agencies. Because a district court must have an adequate factual basis for making determinations as to the applicability of claimed FOIA exemptions, e.g., Bowers v. United States Dept. of ____ ______ ________________________ Justice, 930 F.2d 350, 353 (4th Cir.), cert. denied, 112 S. _______ ____________ Ct. 308 (1991); Ingle v. United States Dept. of Justice, 698 _____ ______________________________ -17- called for from the INS, the DIA or the Customs Service. These agencies disclaimed possession of any documents material to plaintiff's request. A Vaughn index could not ______ even have been prepared in such circumstances. As for the CIA, the district court denied plaintiff's motion for a Vaughn index, without prejudice, ______ because plaintiff had failed to supply the CIA with data e.g., the city or county of Thompson's birth and a copy of his birth certificate that the CIA said was necessary to complete its search. Although plaintiff subsequently furnished the CIA with the requested information, the record nowhere indicates that plaintiff renewed her request for a Vaughn index from the CIA. ______ The CIA did file, in connection with its summary judgment motion, both public and in camera declarations, __ ______ asserting that particular information redacted or expressly withheld was exempt from the FOIA under Exemptions 1 and 3 because it would reveal intelligence sources or methods. One such declaration was that of Information Review Officer Stricker. While this lacked specifics, a more detailed affidavit could have revealed the very intelligence sources or methods that the CIA wished to keep secret. See, e.g., ___ ____ ____________________ F.2d 259, 263 (6th Cir. 1983), we address both the adequacy of the agencies' Vaughn indices and the propriety of the ______ district court's decision with respect to plaintiff's initial motion for Vaughn indices. ______ -18- Doyle v. FBI, 722 F.2d 554, 556 (9th Cir. 1983) ("In certain _____ ___ FOIA cases -- usually when national security exemptions are claimed -- the government's public description of a document and the reasons for exemption may reveal the very information that the government claims is exempt from disclosure."); Church of Scientology v. United States Dept. of Army, 611 _____________________ ___________________________ F.2d 738, 742 (9th Cir. 1979) ("the government need not specify its objections in such detail as to compromise the secrecy of the information."). When, as here, the agency, for good reason, does not furnish publicly the kind of detail required for a satisfactory Vaughn index, a district court may review ______ documents in camera. E.g., NLRB v. Robbins Tire & Rubber __ ______ ____ ____ _____________________ Co., 437 U.S. 214, 224 (1978) ("[t]he in camera review ___ __ ______ provision is discretionary by its terms, and is designed to be invoked when the issue before the District Court could not be otherwise resolved"); Church of Scientology, 611 F.2d at _____________________ 742 (if court finds agency affidavits to be "too generalized to establish eligibility for an exemption, it may, in its discretion, proceed to examine the disputed documents in __ camera for a first-hand determination of their exempt ______ status"). Discretionary in camera review enables the court __ ______ to "determine whether the failure of the affidavit stemmed from mere inadvertence or from a truly overbroad reading of the exemption by the agency." Irons v. Bell, 596 F.2d 468, _____ ____ -19- 471 n.6 (1st Cir. 1979). The government, however, retains at all times the burden of proving the exempt status of withheld documents.12 E.g., Church of Scientology, 611 F.2d at 743. ____ _____________________ In camera review is particularly appropriate when __ ______ the documents withheld are brief and limited in number. See, ___ e.g., Ingle v. Department of Justice, 698 F.2d 259, 264 (6th ____ _____ _____________________ Cir. 1983) ("full in camera reviews are appropriate in cases __ ______ involving a very limited number of relatively brief documents"); Church of Scientology, 611 F.2d at 743 ("small _____________________ number of documents requested, and their relative brevity, ____________________ 12. The 1974 amendments to the FOIA, P.L. 93-502, 88 Stat. 1561, 1562 (1974), expressly state that the government retains the burden of proving a document's exempt status even when a district court conducts in camera review: __ ______ [The district court] may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action. 5 U.S.C. 552(a)(4)(B). The legislative history of the 1974 amendments to the FOIA further clarifies the district court's discretion in conducting in camera review and the __ ______ government's burden of proof: While in camera examinations need not be automatic, in __ ______ many situations it will plainly be necessary and appropriate. Before the court orders in camera __ ______ inspection, the Government should be given the opportunity to establish by means of testimony or detailed affidavits that the documents are clearly exempt from disclosure. The burden remains on the Government under this law. S. Conf. Rep. No. 1200, 93d Cong., 2d Sess. 9 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6287-88. ____________ -20- made these cases appropriate instances for exercise of the district court's inspection prerogative."). On the other hand, "where the documents in issue constitute hundreds or even thousands of pages, it is unreasonable to expect a trial judge to do as thorough job of illumination and characterization as would a party interested in the case." Vaughn v. Rosen, 484 F.2d 820, 825 (D.C. Cir. 1973), cert. ______ _____ _____ denied, 415 U.S. 977 (1974). ______ The district court here conducted an in camera __ ______ inspection of the relatively limited number of documents in which the CIA claimed exemptions. This provided an adequate factual basis for the district court's decision and obviated the need for further Vaughn indices from the CIA. See, e.g., ______ ___ ____ Irons, 596 F.2d at 471 (in camera inspection of documents _____ __ ______ along with in camera testimony can fully establish __ ______ applicability of FOIA exemption); King, 830 F.2d at 228 ____ (after holding that Vaughn index was inadequate, D.C. Circuit ______ suggests that district court on remand can review documents in camera). __ ______ With respect to the State Department, the district court denied plaintiff's request for a Vaughn index because ______ plaintiff did not contest the adequacy of the State Department's claimed exemption. The State Department reported that it had found four documents responsive to plaintiff's request. It released three of these in their -21- entirety and the fourth with minor excisions to protect personal privacy interests pursuant to FOIA Exemption 6. The plaintiff did not challenge the excisions under Exemption 6, rendering unwarranted a Vaughn index at that time. The State ______ Department subsequently submitted a declaration, explaining that it had withheld names and other identifying information, such as date and place of birth, address and occupation, of persons other than plaintiff's deceased husband, because "disclosure could subject these individuals or their families to possible embarrassment or harassment." This declaration fully met any requirement under Vaughn that the State ______ Department provide a reasoned justification for its withholdings. Furthermore, the State Department submitted the one redacted document to the district court for in camera __ ______ review. Finally, in respect to the FBI, the district court granted plaintiff's motion for a Vaughn index. The FBI _______ ______ thereupon submitted two detailed declarations by David R. Lieberman, a special agent in the Freedom of Information- Privacy Acts Section of the FBI. Mr. Lieberman explained that the FBI had released twenty-five of forty-four pages of material to plaintiff, and justified, by means of coded indices,13 the withholding of information in order to ____________________ 13. In a "coded" format, an agency breaks down its FOIA exemptions into subcategories, explains the nondisclosure rationale for each subcategory, and then correlates the -22- protect the personal privacy of former FBI agents and third parties (Exemption 7(C)) and to protect the identities of and information provided by confidential sources (Exemption 7(D)). Furthermore, as with the CIA and the State Department, the government submitted all of the FBI's documents for in camera review. The Lieberman declarations __ ______ and coded indices, in conjunction with the district court's in camera review of the documents, were adequate to meet any __ ______ requirements under Vaughn that the government provide a ______ reasoned justification for its withholdings. See, e.g., ___ ____ ____________________ subcategories to each document or portion withheld. For example, the Lieberman declaration was accompanied by copies of the documents in their redacted form. Next to each redaction was a code designation that corresponds to a FOIA exemption and a subcategory of information. For instance, one of the subcategories for information withheld under Exemption 7(C) was names and initials of FBI agents and support personnel. A coded symbol (b7C-1) would appear next to any deletions that fit within this exemption and subcategory of information. Use of coded indices has been explicitly approved by several circuit courts as long as each deletion is correlated "specifically and unambiguously to the corresponding exemption," and the agency affidavit places "each document into its historical and investigative context." See, e.g., Keys v. United States Dept. of Justice, ___ ____ ____ ______________________________ 830 F.2d 337, 349-50 (D.C. Cir. 1987). Use of coded indices is fully consistent with the Supreme Court's endorsement of "workable rules," under which general categories of information may be withheld under certain FOIA exemptions "without regard to individual circumstances." See United ___ ______ States Dept. of Justice v. Reporters Committee for Freedom of _______________________ __________________________________ the Press, 489 U.S. 749, 779-80 (1989) (upholding use of _________ categorical rules in Exemption 7(C) context). We therefore agree with these circuits that "it is the function, not the form, of the index that is important," and that coded indices can, in some instances, accomplish the functions of Vaughn ______ "more efficiently and clearly than would the classical Vaughn ______ indices." Keys, 830 F.2d at 349. ____ -23- Lykins, 725 F.2d at 1464 (when "an agency has released most ______ of the contents of a document and has otherwise met its FOIA obligations in good faith, a public statement that the remaining small portions would reveal a confidential source - - coupled with in camera review of the excised portions of __ ______ the document . . . is sufficient to meet Vaughn's ______ requirements."). Plaintiff's claim of improper denial of Vaughn ______ indices is, therefore, groundless and unsupported. C. The Adequacy of the Searches ____________________________ Plaintiff next contends that the defendant agencies did not conduct adequate searches for responsive documents. Plaintiff directs most of her brief to this argument. However, as with plaintiff's arguments regarding the defendant agencies' Vaughn indices, plaintiff's contentions ______ with respect to the adequacy of the agencies' searches lack merit and, in some instances, ignore agency affidavits that cure deficiencies noted by the district court in earlier affidavits. The adequacy of an agency's search for documents under the FOIA is judged by a standard of reasonableness and depends upon the facts of each case. E.g., Weisberg v. ____ ________ United States Dept. of Justice, 745 F.2d 1476, 1485 (D.C. ______________________________ 1984). The crucial issue is not whether relevant documents might exist, but whether the agency's search was "reasonably -24- calculated to discover the requested documents." Safecard ________ Servs., Inc. v. S.E.C., 926 F.2d 1197, 1201 (D.C. Cir. 1991). ____________ ______ In order to establish the adequacy of its search, the agency may rely upon affidavits provided they are relatively detailed and nonconclusory, and are submitted by responsible agency officials in good faith. E.g., Miller v. ____ ______ United States Dept. of State, 779 F.2d 1378, 1383 (8th Cir. ____________________________ 1985); Weisberg, 745 F.2d at 1485. A satisfactory agency ________ affidavit should, at a minimum, describe in reasonable detail the scope and method by which the search was conducted. See, ____ e.g., Oglesby, 920 F.2d at 68; Perry v. Block, 684 F.2d 121, ____ _______ _____ _____ 127 (D.C. Cir. 1982). The affidavit should additionally "describe at least generally the structure of the agency's file system which makes further search difficult." Church of _________ Scientology of Cal. v. I.R.S., 792 F.2d 146, 151 (D.C. Cir. ___________________ ______ 1986) (Scalia, J.). If an agency fails to establish through reasonably detailed affidavits that its search was reasonable, the FOIA requester may avert summary judgment merely by showing that the agency might have discovered a responsive document had the agency conducted a reasonable search. E.g., Weisberg v. ____ ________ United States Dept. of Justice, 705 F.2d 1344, 1351 (D.C. ______________________________ Cir. 1983). However, if an agency demonstrates that it has conducted a reasonably thorough search, the FOIA requester -25- can rebut the agency's affidavit only by showing that the agency's search was not made in good faith. Miller, 779 F.2d ______ at 1383. An agency's affidavit is "accorded a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents.'" Safecard Servs., 926 F.2d at 1200 (quoting _______________ Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. _________________________ ___ Cir. 1981)). Plaintiff complains, first, that the FBI, the Customs Service, and the State Department failed to search "alternate spellings" and "files containing the information of cohorts." Plaintiff also charges that unspecified "clues" contained in the four documents released to her by the State Department "might have indicated" other potential repositories of information that the State Department should have searched. Plaintiff's FOIA request, however, was limited to "information pertaining to Robert Thompson."14 Because the scope of a search is limited by a plaintiff's FOIA request, there is no general requirement that an agency search secondary references or variant spellings. See Gillin ___ ______ v. IRS, No. 92-1803, slip op. at 6 (1st Cir. December 7, ___ 1992) (quoting Meeropol v. Meese, 790 F.2d 942, 955 (D.C. ________ _____ ____________________ 14. Plaintiff sent identical FOIA requests to each defendant agency stating the following: "I am requesting, through the FOIA, any information you may have concerning my former husband, Robert Thompson. He disappeared along with Robert Swanner on a flight over Cuba in December of 1961." -26- Cir. 1986)) ("The adequacy of an agency's search 'is measured by the reasonableness of the effort in light of the specific request.'"). Nor is there any requirement that an agency conduct further searches on the basis of unspecified "clues" in released documents. Second, plaintiff complains that the declarations submitted by the FBI and the CIA were not based on personal knowledge. However, an agency need not submit an affidavit from the employee who actually conducted the search. Instead, an agency may rely on an affidavit of an agency employee responsible for supervising the search. E.g., ____ Safecard Servs., 926 F.2d at 1201; cf. Weisberg v. United _______________ ___ ________ ______ States Dept. of Justice, 627 F.2d 365, 369 (D.C. Cir. 1980) _______________________ (court holds that affidavit was inadequate because it was not based upon personal knowledge of affiant or anyone else), appeal on remand, 705 F.2d 1344 (D.C. Cir. 1983). Here, the ________________ FBI submitted several declarations of David Lieberman, a |