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No. 98-1904: United States v. Weatherhead | |||||||||||
No. 98-1904
In the Supreme Court of the United States
UNITED STATES OF AMERICA, UNITED STATES
DEPARTMENT OF JUSTICE, AND UNITED STATES
DEPARTMENT OF STATE, PETITIONERS
v.
LESLIE R. WEATHERHEAD
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE PETITIONERS
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney
General
EDWIN S. KNEEDLER
Deputy Solicitor General
PATRICIA A. MILLETT
Assistant to the Solicitor
General
LEONARD SCHAITMAN
JOHN P. SCHNITKER
AUGUST E. FLENTJE
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
DAVID R. ANDREWS
Legal Adviser
Department of State
Washington, D.C. 20520
STEVEN GARFINKEL
Director
Information Security
Oversight Office
Washington, D.C. 20408
Whether the court of appeals erred in holding that the Freedom of InformationAct's national security exemption, 5 U.S.C. 552(b)(1), does not apply toa letter sent in confidence from the government of Great Britain to theDepartment of Justice concerning a sensitive extradition matter, where theState Department officials' uncontested affidavits explain that disclosureand the resultant breach of the British government's trust will damage theUnited States' foreign relations both by impairing the United States' abilityto engage in and receive confidential diplomatic communications and by impedinginternational law enforcement cooperation.
In the Supreme Court of the United States
No. 98-1904
UNITED STATES OF AMERICA, UNITED STATES
DEPARTMENT OF JUSTICE, AND UNITED STATES
DEPARTMENT OF STATE, PETITIONERS
v.
LESLIE R. WEATHERHEAD
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE PETITIONERS
The opinion of the court of appeals (Pet. App. 1a-20a) is reported at 157F.3d 735. The opinions of the district court (Pet. App. 21a-28a, 29a-42a)are unreported.
The court of appeals entered its judgment on October 6, 1998. A petitionfor rehearing was denied on February 26, 1999 (Pet. App. 44a-45a), and anamended order denying rehearing was entered on March 9, 1999 (Pet. App.46a-47a). The petition for a writ of certiorari was filed on May 27, 1999.Certiorari was granted on September 10, 1999. This Court has jurisdictionpursuant to 28 U.S.C. 1254(1).
ORDER INVOLVED
The text of the Freedom of Information Act, 5 U.S.C. 552 (1994 & Supp.IV 1998) is set forth in an appendix to this brief. Executive Order No.12,958, 3 C.F.R. 333 (1996), governing the classification of national securityinformation, is set forth at Pet. App. 65a-111a.
1. Through the Freedom of Information Act (FOIA), 5 U.S.C. 552 (1994 &Supp. IV 1998), Congress attempted "to balance the public's need foraccess to official information with the Government's need for confidentiality."Weinberger v. Catholic Action, 454 U.S. 139, 144 (1981). While FOIA generallycalls for "broad disclosure of Government records," Congress alsorecognized that "public disclosure is not always in the public interestand thus provided that agency records may be withheld from disclosure"if they fall within one of the Act's nine exemptions. CIA v. Sims, 471 U.S.159, 166-167 (1985). Those exemptions "are intended to have meaningfulreach and application." John Doe Agency v. John Doe Corp., 493 U.S.146, 152 (1989). The first of those exemptions protects from disclosure"[m]atters" that are "(A) specifically authorized under criteriaestablished by an Executive order to be kept secret in the interest of nationaldefense or foreign policy and (B) are in fact properly classified pursuantto such Executive order." 5 U.S.C. 552(b)(1).
Executive Order No. 12,958, 3 C.F.R. 333 (1996), is the currently applicableOrder governing the classification of national security information. TheOrder establishes four prerequisites to classification: (1) the informationis classified by an original classification authority (i.e., an ExecutiveBranch official authorized to classify information under the Order); (2)the information is under the control of the government; (3) the informationfalls within one or more of the categories of information listed in Section1.5 of the Order that may be considered for classification; and (4) "theoriginal classification authority determines that unauthorized disclosureof the information reasonably could be expected to result in damage to thenational security" and is "able to identify or describe the damage."Exec. Order No. 12,958, § 1.2(a)(4). "Damage to the national security"is defined as "harm to the national defense or foreign relations ofthe United States from the unauthorized disclosure of information, to includethe sensitivity, value, and utility of that information." Id. §1.1(l).
Categories of information that may be considered for classification include"foreign government information" and information concerning the"foreign relations or foreign activities of the United States, includingconfidential sources." Exec. Order 12,958, § 1.5(b) and (d).1Information may be classified at one of three levels: "Top Secret,""Secret," or "Confidential." Id. § 1.3. Informationmay be classified as "[c]onfidential" if "the unauthorizeddisclosure of [the information] reasonably could be expected to cause damageto the national security that the original classification authority is ableto identify or describe." Id. § 1.3(a)(3).
The Executive Order charges the Director of the Information Security OversightOffice with responsibility for overseeing implementation of the ExecutiveOrder and monitoring agency compliance with it. Exec. Order No. 12,958,§§ 5.2, 5.3.2 The Order further provides that, upon the requestof an agency or the Director of the Information Security Oversight Office,the Attorney General "shall render an interpretation of this orderwith respect to any question arising in the course of its administration."Id. § 6.1(b).
2. a. Sally Anne Croft and Susan Hagan were followers of Indian guru BhagwanShree Rajneesh and were high-level officers in the commune that Rajneeshestablished in Oregon in the 1980s. See Pet. App. 2a; United States v. Croft,124 F.3d 1109, 1113 (9th Cir. 1997). When investigations by the United StatesAttorney for the District of Oregon threatened to expose illegal activitiesby community members, a number of Rajneesh's officers conspired to murderthe United States Attorney. Id. at 1113-1114. Hagan was a member of the"hit team" designated to commit the murder; Croft financed theacquisition of guns and passports. Id. at 1114.
In 1994, after contesting extradition for nearly four years, Croft and Haganwere extradited from Great Britain to stand trial for conspiracy to murdera federal official (see 18 U.S.C. 1111, 1114, 1117). Shortly after theirextradition, the British Home Office sent a letter to the Director of theJustice Department's Office of International Affairs in which the Britishgovernment "convey[ed] certain concerns of the U.K. Government regardingthe case which apparently was the subject of considerable attention in theBritish Parliament and otherwise in the U.K." Pet. App. 54a. Both Croftand Hagan subsequently were convicted of conspiracy to murder the UnitedStates Attorney. Croft, 124 F.3d at 1114. They have since completed theirsentences and returned to Great Britain.
b. Respondent is a criminal defense attorney who represented Croft duringher trial. In 1994, respondent submitted FOIA requests to the Departmentof Justice and the Department of State for a copy of the letter from theBritish government. Pet. App. 2a-3a. The Justice Department had possessionof the letter but, because the letter had been created by a foreign government,it forwarded the letter to the State Department for response to the FOIArequest. Id. at 3a; see also 28 C.F.R. 16.4(c); 5 U.S.C. 552(a)(6)(B)(iii)(III).As it commonly does, the State Department requested the views of the Britishgovernment on disclosure. Pet. App. 58a, para. 8. The British governmentresponded that it was "unable to agree to [the letter's] release,"because "the normal line in cases like this is that all correspondencebetween Governments is confidential unless papers have been formally requisitionedby the defence." Resp. Br. in Opp. App. 30a (emphasis in original);Pet. App. 3a. The British government further explained that, "[i]nthis particular case," a request by representatives of the defendantsto see the letter had been "refused on grounds of confidentiality"by the British government. Ibid. The British government also expressed concernthat disclosure of even part of the letter would set a "precedent"that "would quickly become common knowledge amongst lawyers dealingwith extradition matters." Resp. Br. in Opp. App. 30a-31a. The StateDepartment subsequently classified the letter as "confidential"and informed respondent that the letter would not be released because itfell within FOIA Exemption 1. Pet. App. 3a-4a; J.A. 42-43. The Justice Departmentdenied respondent's FOIA request on the same ground. J.A. 50-51.
3. Respondent then filed suit under the FOIA, 5 U.S.C. 552(a)(4)(B), andmoved for summary judgment on procedural grounds.3 In opposing the motion,the government submitted the declaration of Peter M. Sheils, the ActingDirector of the State Department's Office of Freedom of Information, Privacy,and Classification Review.4 Mr. Sheils' declaration explained that the letter"was intended by the U.K. Government to be held in confidence"and that violation of that "clearly stated expectation of confidentialitywould cause foreign officials, not only of the government providing theinformation, but of other governments as well, to conclude that U.S. officialsare unable and/or unwilling to preserve the confidentiality expected inexchanges between governments." Pet. App. 52a-53a. As a result of sucha breach of confidentiality, Mr. Sheils continued, the British governmentand other foreign governments would be "less willing in the futureto furnish information important to the conduct of U.S. foreign relations"and "less disposed to cooperate in foreign relations matters."Id. at 53a. Mr. Sheils therefore concluded that disclosure of the document"would inevitably result in damage to relations between the U.K. andthe U.S." Id. at 54a.
The district court rejected both procedural grounds for summary judgmentadvanced by respondent. Pet. App. 30a-31a. At that point, the federal defendantshad not moved for summary judgment on the merits, and respondent had nottaken issue with the foreign relations harm that the Sheils declarationstated would result if the letter were released notwithstanding the Britishgovernment's expectation of confidentiality. The district court neverthelessproceeded to rule on the merits of the government's showing in support ofwithholding and, on that issue, granted summary judgment for respondent.Id. at 31a-39a. The court concluded that the threatened harm to nationalsecurity identified in the Sheils declaration did not justify withholdingbecause it concerned "the act of disclosure itself, not disclosureof the contents" of the letter. Id. at 39a.
The government immediately moved to alter or amend the judgment under Rule59(e) of the Federal Rules of Civil Procedure, Pet. App. 21a-28a, and submittedthe declaration of Patrick F. Kennedy, the Assistant Secretary of Statefor Administration. Mr. Kennedy's declaration elaborated upon the "longstandingcustom and accepted practice in international relations to treat as confidentialand not subject to public disclosure information and documents exchangedbetween governments and their officials." Id. at 56a. "Diplomaticconfidentiality obtains," he explained, "even between governmentsthat are hostile to each other and even with respect to information thatmay appear to be innocuous," and "[w]e expect and receive similartreatment from foreign governments." Id. at 56a-57a. Mr. Kennedy furtherstated that, in his expert judgment, "[t]he information in this [requested]document is of a nature that it is evident that confidentiality was expectedat the time it was sent." Id. at 57a. For that reason, disclosure ofthe letter "in violation of the accepted rule of diplomatic confidentialityreasonably could be expected to cause damage to relations between the U.S.and the originating government," because it "may lead not onlythe government directly affected, but also other governments more generallyto conclude that the U.S. cannot be trusted to protect information furnishedby them." Ibid. The resulting "reluctan[ce]" of other governments"to provide sensitive information to the U.S. in diplomatic communications"would "damag[e] our ability to conduct the foreign relations of theU.S. and our national security, in which information received from foreigngovernment officials plays a major role." Ibid.
In particular, Mr. Kennedy stressed that disclosure could undermine theUnited States' international "law enforcement interests such as thoseinvolved in the extradition case that is the subject of the document atissue in this litigation." Pet. App. 58a. He continued:
Cooperation between the U.S. and the U.K. in international extradition offugitives is a matter of substantial national interest to both governments.It can also be a matter of political sensitivity in the extraditing country,as has been the case with regard to fugitives extradited by the U.S. tothe U.K. charged with crimes in Northern Ireland and extradition of thetwo women by the U.K. to the U.S. in the case discussed in the British documentat issue here.
Ibid. In addition to submitting Mr. Kennedy's declaration, the governmentproffered the letter itself for in camera review and offered to file incamera affidavits elaborating upon the basis for withholding. Id. at 21a-22a.
The district court did not consider the Kennedy declaration adequate tosupport withholding, but did review the letter in camera. The court didso out of a concern that "highly sensitive and injurious material mightbe released only because defendants were unable to articulate a factualbasis for their concerns without giving away the information itself."Pet. App. 27a. "That proved to be the case." Ibid. The court explained:
When the Court read the letter, it knew without hesitation or reservationthat the letter could not be released. The Court is unable to say why forthe same reason defendants were unable to say why. The letter is two pageslong, tightly written, and there is no portion of it which could be disclosedwithout simultaneously disclosing injurious materials.
Id. at 27a-28a5
4. a. A divided panel of the court of appeals reversed and ordered the letterdisclosed. Pet. App. 1a-20a. Because respondent abandoned on appeal hiscontention that the letter did not qualify as information concerning "foreignrelations or foreign activities of the United States," id. at 7a, theonly issue before the court of appeals was whether withholding could besustained on the basis of the State Department's determination "thatthe unauthorized disclosure of the information reasonably could be expectedto result in damage to the national security"-i.e., "harm to thenational defense or foreign relations of the United States." Pet. App.7a-8a (quoting Exec. Order No. 12,958, §§ 1.2(a)(4), 1.1(l)).
The majority concluded that the "government never met its burden ofidentifying or describing any damage to national security that will resultfrom release of the letter." Pet. App. 9a. Specifically, the majorityfaulted the Sheils and Kennedy declarations for "focus[ing] on howdisclosure by the U.S. of foreign government information causes harm toU.S. foreign relations, and, thus, to national security even if the content'appear[s] to be innocuous.'" Id. at 13a; see also id. at 12a. Themajority rejected that basis for withholding, on the ground that not allinformation exchanged with foreign governments or all extradition communicationsare categorically confidential under the Executive Order. Id. at 14a-16a.The court declined to give any deference to the Executive's identification,in the Sheils and Kennedy declarations, of the particular damage to foreignrelations that would result from disclosure of the letter, because, in thecourt's view, the government had failed to make "an initial showingwhich would justify deference." Id. at 16a. The court therefore decidedthat it should only "look to the individual document itself" inassessing the potential harm to national security. Ibid. After reviewingthe document in camera, the majority labeled the letter "innocuous,"stating that the majority "fail[ed] to comprehend how disclosing theletter at this time could cause 'harm to the national defense or foreignrelations of the United States.'" Ibid. The court accordingly reinstatedthe grant of summary judgment for respondent. Id. at 18a.
b. Judge Silverman dissented, Pet. App. 18a-20a, finding "no basisin the record to conclude otherwise than that * * * release [of the letter]would cause damage to the national security," id. at 20a. He emphasizedthat the government's declarations of confidentiality and harm were uncontrovertedand, indeed, were corroborated by the British government's own refusal ongrounds of confidentiality to release the letter. Id. at 18a-19a.6 JudgeSilverman then concluded:
[W]e judges are outside of our area of expertise here. * * * [T]he majorityhas presumed * * * to make its own evaluation of both the sensitivity ofa classified document and the damage to national security that might becaused by disclosure. With all due respect, I suggest that in matters ofnational defense and foreign policy, the court should be very leery of substitutingits own geopolitical judgment for that of career diplomats whose assessmentshave not been refuted in any way.
Id. at 20a.
c. The government then filed a motion to stay the court of appeals' mandatepending the filing of a petition for a writ of certiorari. In support ofthe motion, the government submitted the declaration of then Acting Secretaryof State Strobe Talbott (Pet. App. 60a-64a), who reemphasized that the extraditionof the two women was "a matter of political sensitivity" to GreatBritain. Id. at 62a. He also reiterated the importance of maintaining theconfidentiality of the letter:
Great Britain is perhaps our staunchest and certainly one of our most importantallies. On a daily basis, the United States engages in complex and sensitivediscussions with the British at various levels on numerous important subjectsof concern, including weapons non-proliferation, trade disputes, mattersbefore the United Nations Security Council, human rights and law enforcement.In many of these areas we have engaged in diplomatic dialogue with officialsof the British [government] in the course of which information was exchangedwith an expectation of confidentiality. Such confidential diplomatic dialogueis essential to the conduct of foreign relations.
Id. at 61a.
Based upon his personal review of the letter, the Acting Secretary concludedthat disclosure of Britain's confidential communication "could reasonablybe expected to cause damage to the foreign relations of the United States"and, in particular, could impair the "general bilateral relationshipbetween the U.S. and the U.K. on law enforcement cooperation and other matters"by "dealing a setback to U.K. confidence in U.S. reliability as a lawenforcement partner." Pet. App. 63a. The Ninth Circuit granted themotion to stay the mandate. J.A. 6.
1. A divided court of appeals ordered the release of a sensitive and classifieddiplomatic communication based solely on its conclusion that the document"appear[s]" to be "innocuous" and that, in the court'sjudgment, the document's disclosure could not reasonably be expected toresult in damage to the national security of the United States. In so holding,the court expressly refused to accord any deference to the declarationsof the responsible Executive Branch officials, which explained how disclosureof the document would damage the foreign relations of the United States,both with Great Britain and more broadly. In particular, the declarationsexplained in detail how the very act of disclosure of a letter that wassent in confidence by the British government and that pertains to a diplomaticallysensitive extradition case would undermine ongoing and future exchangeswith the British government on many matters, including in the vitally importantarea of law enforcement cooperation.
Since the founding of the Republic, Congress and the courts have consistentlyrecognized that the separation of powers compels courts to accord the ExecutiveBranch's foreign affairs judgments the utmost deference. Judgments aboutthe damage to national security that disclosure of a communication witha foreign government could entail necessarily involve delicate politicalpredictions and nuanced assessments of diplomatic conditions and expectations.The determinations must be made by officials who are responsible for andwell-versed in geopolitical developments and the interconnection of foreignrelations matters. Judges lack expertise in foreign relations matters andtheir review necessarily is confined to the examination of the particulardocument(s) before them, within the confines of courtroom procedures anddivorced from their larger diplomatic context. They therefore should deferto the Executive Branch unless its identification of the harm to nationalsecurity is implausible. Nothing in the Freedom of Information Act's text,structure, or legislative history supports the contrary approach taken bythe court of appeals here, which disregarded the constitutionally compelledrule of deference to the Executive Branch.
2. The damage to the national security against which the Executive Orderprotects includes the harm arising from the very act of disclosure and theattendant breach of a foreign government's trust. The plain text of theExecutive Order embraces that harm, and two centuries of diplomatic practiceand decisions of this Court confirm that it is a substantial one. Indeed,the Executive Branch's ability to maintain confidential relationships iscritical to its ability to obtain information that is vital to the protectionof the United States' national defense and foreign relations. Negotiationsand candid appraisals of foreign intelligence information and politicaldevelopments abroad are indispensable to the United States' foreign policy;yet, they cannot proceed in the absence of trust. In the realm of internationallaw enforcement, moreover, preserving the ongoing trust and cooperationof foreign governments is a critical foreign policy objective in its ownright. If foreign governments cannot be assured that their communicationswith the United States will enjoy meaningful protection from disclosureand that they will be spared the risks to their interests that may attendsuch exposure, the United States will not be able to obtain the informationit so critically needs for the conduct of its foreign relations.
THE COURT OF APPEALS DISREGARDED THE REQUIREMENT UNDER THE CONSTITUTIONAND THE FREEDOM OF INFORMATION ACT THAT IT ACCORD THE UTMOST DEFERENCE TOTHE EXECUTIVE BRANCH'S DETERMINATION THAT THE REQUESTED INFORMATION MUSTBE CLASSIFIED IN THE INTEREST OF NATIONAL SECURITY
Section 552(b)(1) of the Freedom of Information Act (FOIA) exempts fromdisclosure all matters that are "specifically authorized under criteriaestablished by Executive order to be kept secret in the interest of nationaldefense or foreign policy" and "are in fact properly classifiedpursuant to such an Executive order." The Executive Order applicableto this case is Executive Order No. 12,958, 3 C.F.R. 333 (1996). It providesthat information may be classified if four conditions are met. Only thefourth condition is at issue in this case.7 That criterion is that the originalclassification authority-here, the responsible State Department official-has"determine[d] that the unauthorized disclosure of the information reasonablycould be expected to result in damage to the national security" andhas been "able to identify or describe th[at] damage." Exec. Order.No. 12,958, § 1.2(a)(4). The uncontested State Department declarationsmeet that standard. They identify and describe a concrete harm to the UnitedStates' foreign policy interests-a breach of the trust of an important ally.They also explain how disclosure of the letter in violation of that trustreasonably could be expected to damage the United States' foreign relationswith Great Britain and other nations by impairing the United States' abilityto engage in and obtain confidential diplomatic communications and by impedinginternational law enforcement cooperation. That explanation fully satisfiedthe governing Executive Order and, therefore, also satisfied Exemption 1of FOIA.
A. The President's Constitutional Responsibilities For National DefenseAnd Foreign Relations Include The Authority, Long Recognized By Congress,To Protect Confidential National Security Information
The Ninth Circuit held that no deference was owed to the Executive Branchofficials' explanation of the basis for classification of the British government'sconfidential letter, because deference was not "justif[ied]" byan unspecified "initial showing," and because the harm identifiedby State Department officials did not fall within the court's own straitenedview of what constitutes damage to the national security. Pet. App. 13a-14a,16a. Other courts of appeals in FOIA Exemption 1 cases, however, have consistentlyaccorded "substantial weight" to the declarations of ExecutiveBranch officials explaining the basis for the classification of documentsand the risk that disclosure would pose to national security.8 That virtualunanimity in approach is rooted in the separation of powers under the Constitution.Indeed, Congress itself has long recognized that fundamental principle ofdeference to the Executive Branch in protecting confidential informationconcerning the Nation's defense and foreign relations, and it intended FOIAto be implemented in a manner that would respect that principle.
1. The Executive Branch's "authority to classify and control accessto information bearing on national security * * * flows primarily from th[e]constitutional investment of power in the President * * * as head of theExecutive Branch and as Commander in Chief," and thus "existsquite apart from any explicit congressional grant." Department of theNavy v. Egan, 484 U.S. 518, 527 (1988). The President's exclusive authorityto "receive Ambassadors and other public Ministers," U.S. Const.Art. II, § 3, provides further textual grounding specifically for theExecutive's primacy in managing the Nation's diplomatic relations. Accordingly,"courts traditionally have been reluctant to intrude upon the authorityof the Executive" over the management of national security information,because of "the generally accepted view that foreign policy [is] theprovince and responsibility of the Executive." Egan, 484 U.S. at 529-530(quoting Haig v. Agee, 453 U.S. 280 293-294 (1981)).9 With respect to thatarea of Presidential responsibility, "the courts have traditionallyshown the utmost deference." Egan, 484 U.S. at 530 (emphasis added)(quoting United States v. Nixon, 418 U.S. 683, 710 (1974)).10
The President's paramount authority in the area of foreign relations hasbeen recognized since the founding of the Republic. Thomas Jefferson advisedPresident Washington that "[t]he transaction of business with foreignnations is Executive altogether. It belongs then to the head of that department,except as to such portions of it as are specially submitted to the Senate.Exceptions are to be construed strictly." 16 The Papers of Thomas Jefferson379 (J. Boyd, ed. 1961). In an early extradition matter involving GreatBritain, John Marshall, who was then a Member of Congress, declared thatthe President is "the sole organ of the nation in its external relations,and its sole representative with foreign nations," and that "[t]he[executive] department * * * is entrusted with the whole foreign intercourseof the nation." Speech of March 7, 1800, in 4 The Papers of John Marshall104-105 (C. T. Cullen ed., 1984).11
2. It also has been recognized "since the beginning of the Republic"that the "President's constitutional authority to control the disclosureof documents and information relating to diplomatic communications"is an indispensable adjunct of his foreign affairs power.12 Thus, John Jayexplained in The Federalist No. 64:
There are cases where the most useful [foreign policy] intelligence maybe obtained, if the persons possessing it can be relieved from apprehensionsof discovery. * * * [T]here doubtless are many [such persons] who wouldrely on the secrecy of the President, but who would not confide in thatof the Senate, and still less in that of a large popular assembly. The conventionhave done well, therefore, in so disposing of the power of making treatiesthat although the President must in forming them, act by the advice andconsent of the Senate, yet he will be able to manage the business of intelligencein such manner as prudence may suggest.
The Federalist No. 64, at 392-393 (C. Rossiter ed., 1961).
So complete is the President's ability to protect against the unauthorizeddisclosure of foreign relations information that it includes the authorityto withhold information about foreign affairs and diplomatic negotiationseven from Congress, "if in [the President's] judgment disclosure wouldbe incompatible with the public interest;" and that is so notwithstandingthe Senate's role under Article II, Section 2 of the Constitution in givingits advice and consent to the making of treaties.13 That discretion to withholdconfidential national security information even from Congress, or to restrictthe extent of Congress's access to it, has been exercised by almost everyPresident, from the time of George Washington to the present, in those instanceswhen the President has determined that disclosure would be "incompatiblewith the public interest." President Washington refused to lay beforethe House of Representatives instructions, correspondence, and documentsunderlying the negotiation of the Jay Treaty because "[t]o admit, then,a right in the House of Representatives to demand and to have as a matterof course all the papers respecting a negotiation with a foreign power wouldbe to establish a dangerous precedent." 1 J. Richardson, Messages andPapers of the Presidents 195 (1896). The "wisdom" of that decision"was recognized by the House itself and has never since been doubted."United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).That is because "[a] discretion in the Executive Department how farand where to comply in such cases is essential to the due conduct of foreignnegotiations." 20 The Papers of Alexander Hamilton 68 (H. Syrett ed.,1974) (Letter from Alexander Hamilton to President Washington (Mar. 7, 1796)).14
President Tyler likewise withheld from the House of Representatives correspondencebetween the United States and Great Britain over the United States' Northeasternand Northwestern boundaries, because "no communication could be madeby me at this time on the subject of its resolution without detriment ordanger to the public interests." 4 J. Richardson, supra, at 101, 201-211.President Polk declined to comply with a request from the House of Representativesfor information concerning efforts to negotiate a peaceful resolution ofdisputes with Mexico because disclosure "could not fail to produceserious embarrassment in any future negotiation between the two countries."Id. at 566.15
Correspondingly, Congress historically has accorded the utmost deferenceto such Presidential judgments in the foreign policy area. "A statementthat to furnish the information is not compatible with the public interestrarely, if ever, is questioned." Curtiss-Wright, 299 U.S. at 321. Indeed,in requesting national defense information from President Theodore Roosevelt,Senator Spooner acknowledged:
It would not be admissible at all that either House should have the powerto force from the Secretary of State information connected with the negotiationof treaties, communications from foreign governments, and a variety of matterswhich, if made public, would result in very great harm in our foreign relations.
41 Cong. Rec. 98 (1906) (emphasis added).16 Congress even has permittedthe President to withhold the text of secret agreements with foreign nationsfrom the full Congress if, in the President's judgment, public disclosurewould "be prejudicial to the national security." 1 U.S.C. 112b(a).Such agreements need only be submitted to two specially designated congressionalcommittees, whose members operate "under an appropriate injunctionof secrecy to be removed only upon due notice from the President."Ibid. (emphasis added).
In short, at the time Congress amended Exemption 1 of FOIA in 1974, Congressitself had, over the course of almost 200 years, consistently acquiescedin decisions by the President to decline to furnish information pertainingto foreign affairs, or otherwise accommodated his requests to maintain theconfidentiality of such information. And, where the Executive Branch hasmade such information available to Congress, the conditions of secrecy havebeen respected between the Branches, so that confidentiality could be maintainedas against the outside world. That history of congressional respect forthe Executive's judgments concerning the confidentiality of informationabout foreign relations or national defense provides compelling supportfor a rule of great deference to the Executive's classification judgmentsin the context of FOIA, which provides for disclosure of non-exempt documentsto the public at large. 17
B. The Complex And Delicate Character Of Diplomatic Relations Requires ThatCourts Also Accord Utmost Deference To Executive Branch Determinations ToPreserve The Confidentiality Of National Security Information
Like Congress, the courts have historically afforded the Executive Branch'sforeign policy judgments and concomitant classification decisions the utmostdeference, reflecting the distinct institutional roles and capabilitiesof the two Branches:
[T]he very nature of executive decisions as to foreign policy is political,not judicial. Such decisions are wholly confided by our Constitution tothe political departments of the government, Executive and Legislative.They are delicate, complex, and involve large elements of prophecy. Theyare and should be undertaken only by those directly responsible to the peoplewhose welfare they advance or imperil. They are decisions of a kind forwhich the Judiciary has neither aptitude, facilities nor responsibilityand which has long been held to belong in the domain of political powernot subject to judicial intrusion or inquiry.
Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111(1948); accord Marbury v. Madison, 5 U.S. (1 Cranch) 137, 165-166 (1803).Accordingly, "[e]ven if there is some room for the judiciary to overridethe executive determination [on classification], it is plain that the scopeof review must be exceedingly narrow." New York Times Co. v. UnitedStates, 403 U.S. 713, 758 (1971) (Harlan, J., dissenting).
First, deference to the Executive Branch is indispensable because the impactthat revelation of a foreign government's confidences would have on theconduct of the Nation's foreign policy cannot be assessed in a vacuum. TheUnited States' relationship with a particular foreign government- especiallyas close an ally as Great Britain-necessarily involves multiple negotiationsand dialogues about a variety of sensitive subjects at any given time.18In light of the inevitable give-and-take and delicate balancing of intereststhat such ongoing relations entail, courts considering Executive Branchdeclarations in FOIA cases must keep in mind that geopolitical developmentsoutside the courtroom can give a document a sensitivity that is not apparentto a non-expert from the face of the document.
Second, judgments about the harm to foreign relations and national securitynecessarily entail large elements of prediction, and those predictive judgments"must be made by those with the necessary expertise in protecting classifiedinformation." Egan, 484 U.S. at 529.
For reasons too obvious to call for enlarged discussion, the protectionof classified information must be committed to the broad discretion of theagency responsible, and this must include broad discretion to determinewho may have access to it. Certainly, it is not reasonably possible foran outside non-expert body to review the substance of such a judgment andto decide whether the agency should have been able to make the necessaryaffirmative prediction [of risk to national security] with confidence. Norcan such a body determine what constitutes an acceptable margin of errorin assessing the potential risk.
Ibid. (internal quotation marks, citation, and ellipsis omitted); see alsoSnepp v. United States, 444 U.S. 507, 513 n.8 (1980) (per curiam) ("Theproblem is to ensure in advance * * * that information detrimental to nationalinterest is not published.").
Executive Order No. 12,958 itself incorporates those elements of judgmentand prediction in safeguarding the Nation's secrets. It permits the classificationof information if the responsible classifying official "determines,"on the basis of his or her expertise, that disclosure "reasonably couldbe expected to result in damage to the national security." Id. §1.2(a)(4). Courts must respect such determinations. Executive Branch expertsare better acquainted than courts, for example, with the politically sensitiveand volatile context in which a government extradites one of its own citizensto stand trial in a foreign land,19 and the adverse consequences that mightensue for a foreign government if a confidential diplomatic communicationwith the United States were to be disclosed.20
Third, diplomatic relationships come with a history and a future. With respectto any particular nation at any given time, the United States may be attemptingto repair a serious breach in relations, to set the foundation for a newand enduring relationship, or to build upon and expand a prior history ofcooperation. In that context, the old saw that "timing is everything"assumes critical weight. Elections, coups, no-confidence votes, and unforeseendomestic developments in a foreign country can transform overnight the significanceand sensitivity of a communication. Likewise, a judicial order to breacha foreign government's trust and disclose a sensitive communication thatissues at a time when the Executive Branch is struggling to repair or maintaincontacts with that government due to other developments in the internationalarena could have grave and enduring repercussions for United States' foreignpolicy.
Judges, who are neither versed in the intricacies of diplomatic dialoguenor schooled in the often tangled weave of foreign policy operations, andwho must review a single document or group of documents within the narrowframework of case-specific courtroom litigation, are ill-equipped to identifyor predict independently the national security implications that would attendthe disclosure of foreign government communications. As courts have recognizedin the analogous context of intelligence information, the collection andpreservation of information affecting the national security "is moreakin to the construction of a mosaic than it is to the management of a cloakand dagger affair." Halkin v. Helms, 598 F.2d 1, 8 (D.C. Cir. 1978).
The significance of one item of information may frequently depend upon knowledgeof many other items of information. What may seem trivial to the uninformed,may appear of great moment to one who has a broad view of the scene andmay put the questioned item of information in its proper context. The courts,of course, are ill-equipped to become sufficiently steeped in foreign intelligencematters to serve effectively in the review of secrecy classifications inthat area.
United States v. Marchetti, 466 F.2d 1309, 1318 (4th Cir.), cert. denied,409 U.S. 1063 (1972).21 Thus, what is "seemingly innocuous" or"superficially innocuous" to non-expert bodies may be of greatsignificance to experts in national security matters (CIA v. Sims, 471 U.S.159, 176, 178 (1985));22 accordingly, the classification judgments of those"who must of course be familiar with 'the whole picture,' as judgesare not, are worthy of great deference" (id. at 179).
International law enforcement efforts and extradition matters, like thoseat issue in this case, well illustrate the need for substantial judicialdeference to the "broad view of the scene," Marchetti, 466 F.2dat 1318, and to the contextual judgment that Executive Branch officialsbring to bear on classification decisions. "[R]elations with foreignnations * * * are necessarily implied in the extradition of fugitives fromjustice." United States v. Rauscher, 119 U.S. 407, 414 (1886).23 TheUnited States is involved in an average of 50 extradition matters with GreatBritain each year.24 In addition, the United States is often engaged ina variety of other law enforcement matters with Great Britain, such as cooperativeefforts to apprehend and bring to justice international terrorists and toprevent criminal activities. At the time of Croft's and Hagan's extraditionproceedings, for example, the United States also was seeking the extraditionof two of their co-conspirators from the Federal Republic of Germany andSouth Africa. Moreover, some extraditions-such as those involving formerheads of state or international terrorists25-necessarily entail a high degreeof political and diplomatic dialogue and sensitive judgments.
For those reasons, the concerns that State Department officials expressed(Pet. App. 53a, 57a-58a, 62a-63a) about the real-world impact of breachingGreat Britain's confidence on the United States' law enforcement effortsin the United Kingdom and more generally with other nations do not "lack[]* * * particularity" (id. at 12a). Quite the opposite, they reflectrealistic appraisals of a complicated and intertwined diplomatic situationby State Department experts who have the institutional responsibility andexperience to see the foreign relations "forest" and not justthe particular "tree" before the court, and who thus can foreseethe ripple effect that a single breach of trust would have on importantUnited States foreign policy and international law enforcement objectives.26"The judiciary is not well-positioned to shoulder primary responsibilityfor assessing the likelihood and importance of such diplomatic repercussions."INS v. Aguirre- Aguirre, 119 S. Ct. 1439, 1445 (1999).
C. Courts Likewise Must Accord The Utmost Deference To Executive BranchClassification Decisions Concerning Documents That Are The Subject Of SuitsUnder The Freedom Of Information Act
FOIA's Exemption 1 protects from mandatory disclosure matters that are "(A)specifically authorized under criteria established by an Executive orderto be kept secret in the interest of national defense or foreign policyand (B) are in fact properly classified pursuant to such Executive order."5 U.S.C. 552(b)(1). Consistent with the constitutional history and the executive,congressional, and judicial practice discussed above, that statutory provisionretains in the President broad authority, first, to identify and definethrough established criteria the types of disclosures that, in his judgment,threaten national security, and, second, to provide for the determinationby Executive Branch officials in particular cases whether information shouldbe classified under those criteria. FOIA's text, structure, and legislativehistory evidence Congress's intent that Executive Branch judgments be accordedthe utmost deference in both respects. The court of appeals ignored thatcommand.
1. The Utmost Deference Is Owed To The Executive's Interpretation Of ItsOwn Executive Order That Damage To The National Security Includes Harm ResultingFrom The Act Of Disclosing A Confidential Communication From A Foreign Government
In ordering disclosure of the British Government's confidential communication,the Ninth Circuit did not find that the State Department declarations failedto identify a threatened harm to national security. To the contrary, thecourt criticized the State Department officials for "focus[ing] onhow disclosure by the U.S. of foreign government information causes harmto U.S. foreign relations, and, thus, to national security even if the content'appear[s] to be innocuous.'" Pet. App. 13a. Nor did the court of appealsdisagree with the State Department's determination that such harm "reasonablycould be expected to result" (Exec. Order No. 12,958, § 1.2(a)(4))from disclosure of the letter. Rather, the Ninth Circuit found the StateDepartment's classification of the document to be improper because it restedlargely upon the "damage resulting solely from disclosing foreign governmentinformation" even when the document's "content appear[s] to beinnocuous" (Pet. App. 13a, 14a), rather than upon the harm arisingfrom disclosing "the individual document itself" (id. at 16a).By imposing its own conception of harm to the national security on the ExecutiveBranch, the court of appeals transgressed FOIA's demarcation of the properboundaries of judicial review, ignored the Executive Order's language, andpaid scant heed both to this Court's precedents and the "practicalnecessities" of modern diplomatic relations. Sims, 471 U.S. at 169.
a. FOIA requires deference to the President's specification of classificationcriteria: The text and structure of Exemption 1 respect the President'sinherent, plenary authority to identify those "matters" that shouldbe "kept secret in the interest of national defense or foreign policy."5 U.S.C. 552(b)(1)(A). Congress did not attempt to restrict Executive Branchclassification judgments to Congress's vision of harm to the national securityor to standards articulated in FOIA itself. Rather, the exemption specificallyaccedes to the President's own formula for classifying national securityinformation, as established in the governing Executive Order. See also 120Cong. Rec. 6811 (1974) (Rep. Moorhead) ("[T]he court must accept thelanguage of the Executive order as it was written.").
Congress, moreover, protected under Exemption 1 all "matters"that an Executive Order authorizes to be kept secret "in the interestof national defense or foreign policy." 5 U.S.C. 552(b). "[M]atters"is a capacious term that invites consideration of informational disclosuresthat go beyond the words written on a piece of paper. At a minimum, Congress'suse of such broad language provides no basis for contracting the exemption'sprotective sphere.
b. The Executive Order protects against the harm that arises from the veryact of disclosure: The text of the Executive Order, to which FOIA itselfgives operative effect, does not support a conception of harm to nationalsecurity that is confined to the four corners of a document. The Order'sdefinition of "[d]amage to the national security" reaches harm"from the unauthorized disclosure of information." Exec. OrderNo. 12,958, § 1.1(l). That language is most naturally read to includeharm emanating both from the information itself and from the very act ofdisclosure.
The "information" that the Executive Order protects from disclosure,moreover, is separately defined to mean "any knowledge that can becommunicated * * * regardless of its physical form or characteristics."Exec. Order No. 12,958, § 1.1(b). That language plainly embraces notjust the tangible document at issue in a FOIA case, but also less tangibleknowledge that would be revealed by the act of disclosure, such as the acknowledgmentthat a foreign government made a particular communication or that it conveyedspecific statements, views, or concerns to another government.
The definition of "damage to the national security" goes on to"include the sensitivity, value, and utility of that information."Ibid. One important measure of the "sensitivity" of the informationin this case is the fact that the foreign government communicated it inconfidence and continues (reasonably in the view of the United States government)to object to its disclosure in breach of that trust. The court of appeals'attempt to distinguish between the "sensitivity" of a document'scontents (which it would deem covered by the Executive Order) and the foreigngovernment's "sensitivity" about disclosure of those contents(which the court would not protect), fails to recognize that the two areclosely intertwined. In any event, the ordinary meaning of the word "includ[es]""is not one of all-embracing definition, but connotes simply an illustrativeapplication of the general principle." Federal Land Bank v. BismarckLumber Co., 314 U.S. 95, 100 (1941). Accordingly, the Executive Order textuallyenvisions that other types of harm also may be considered by classifyingagencies, such as broader, institutional impacts on the United States' relationswith a particular country or on the overall conduct of the United States'foreign affairs and extradition matters with other nations. See Exec. OrderNo. 12,958 (preamble) (the national interest requires certain informationto be maintained in confidence to protect "our participation in thecommunity of nations").
Any possible doubt about the scope of the harm to national security addressedby the Executive Order is laid to rest by the Order's provisions regardingthe duration of classifications. There, the Executive Order specificallyprovides that, if "the release" of classified information will"damage relations between the United States and a foreign government,"the document falls within the extraordinary category of information thatis exempt from the general ten-year rule for declassification. Exec. OrderNo. 12,958, § 1.6(d)(6).27 Those special exceptions confirm that thedamage to diplomatic relations resulting from the act of releasing a documentis an independent and highly relevant component of the "[d]amage tothe national security" against which the Executive Order is intendedto guard.
If the Executive Order were nonetheless thought to be ambiguous on the point,however, the court of appeals should have deferred to the Executive Branch'sreasonable interpretation of its language. See Udall v. Tallman, 380 U.S.1, 4 (1965) ("The Secretary's interpretation [of Executive Orders]may not be the only one permitted by the language of the orders, but itis quite clearly a reasonable interpretation; courts must therefore respectit.").28 Congress intended that well-established rule of deferenceto apply in Exemption 1 cases.29 Moreover, because the Executive Order concernsforeign affairs and national security-matters steeped in a tradition ofindependent Executive authority-the rule of deference to the Executive'sinterpretation of its own Order should apply with particular force, sustainingany rational construction of the Order that is not clearly foreclosed byits text.
The court of appeals reasoned that the harm arising from the very act ofdisclosure could not be considered because the current Executive Order eliminateda presumption in the prior Order that the release of "foreign governmentinformation" would damage the United States' foreign relations. SeeExec. Order No. 12,356, § 1.3(b) and (c), 3 C.F.R. 169 (1983). Butelimination of the across-the-board presumption that the disclosure of "foreigngovernment information" will always harm national security becauseof the prospect of a broader impact on diplomatic communications plainlydoes not mean that the disclosure of foreign government information willnever harm the national security in that way. It simply means that suchharm will no longer be presumed for every bit of information the UnitedStates receives from foreign governments.30 Indeed, none of the ExecutiveOrders issued before 1978 contained such a presumption either,31 yet theimpact of breaching confidentiality on the United States' ability to receivevital, candid foreign policy information from other governments has longbeen recognized. It is inconceivable that the President, in issuing ExecutiveOrder No. 12,958, intended to mandate a wholesale abrogation of the longstandingpractice of diplomatic confidentiality without giving a hint of that intentin the actual text of the Executive Order.32
Moreover, the approach taken by the court of appeals- that the Governmentmust be able to make a particularized showing on a case-by-case basis regardingthe specific harm that would be caused by disclosure of the contents ofthe specific communication in order to protect confidential diplomatic communicationsfrom public disclosure-would be unworkable in practice. Because a content-basedanalysis, by its nature, could be made only once the substance of the communicationis known, i.e., after its delivery, the court of appeals' test would failto furnish an assurance of confidentiality in advance, which often is essentialto candid communications.
Thus, the revision of the Executive Order in no way bars the Executive fromshowing that particular foreign government communications were made againstthe established background expectation of confidentiality for diplomaticcommunications, the breach of which would damage the United States' foreignrelations. Rather, elimination of the automatic presumption contemplatedonly that, in some cases-such as routine scheduling information or congratulatory/condolencemessages from certain governments, and perhaps, on occasion, more substantivematters-the established norm of confidentiality in diplomatic relationsmight never attach, could be outweighed by other considerations, or couldbe waived. Elimination of the automatic presumption also has the effectof requiring an actual judgment by a responsible Executive Branch officialabout each document that may be withheld, thereby enhancing the integrityof the classification process and promoting public confidence in its operation.The current Executive Order therefore simply requires that a responsibleExecutive Branch official make a judgment that the interest in maintainingthe confidentiality of diplomatic discourse should be invoked with respectto each document. The declarations submitted in this case did preciselythat, and they explain that disclosure of this particular document can reasonablybe expected to damage the Nation's foreign relations by undermining thatconfidentiality.33
c. Historical practice supports the Executive Branch's interpretation: Thecourt of appeals' insistence that identifiable harm to national securitymust arise from within the four corners of the classified document-and notfrom the repercussions of the breach of confidentiality in its own right-iscontrary to historical practice and common experience. "Secrecy isthe very soul of diplomacy." F. de Callieres, On the Manner of Negotiatingwith Princes 142 (Univ. of Notre Dame Press, 1919) (A. Whyte trans.). Itis thus "obvious to anyone who has been in charge of the interestsof his country abroad that the day secrecy is abolished negotiations ofany kind will become impossible." J. Cambon, The Diplomatist 30 (PhilipAllan, 1931) (C. Turner trans.).
That principle was well understood by the Framers. Even before the Constitutionwas adopted, the Founders established a Committee of Secret Correspondenceof the Continental Congress, which, true to its name, placed great emphasison the secrecy of communications with foreign governments in its conductof the Nation's earliest intelligence activities. See Halperin v. CIA, 629F.2d 144, 157 (D.C. Cir. 1980) (citing 3 Journals of the Continental Congress392 (1905)). Later, in 1794, President Washington refused to disclose correspondencebetween the French government and the United States' ambassador. See 4 Annalsof Congress 34, 37-38 (1794). President Washington also withheld from Congresscommunications with foreign governments that underlay the negotiation ofthe Jay Treaty-not on the basis of particular secrets identified in eachdocument that would harm the United States if disclosed, but because
[t]he nature of foreign negotiations requires caution, and their successmust often depend on secrecy; and even when brought to a conclusion a fulldisclosure of all the measures, demands, or eventual concessions which mayhave been proposed or contemplated would be extremely impolitic; for thismight have a pernicious influence on future negotiations, or produce immediateinconveniences, perhaps danger and mischief, in relation to other powers.
Curtiss-Wright, 299 U.S. at 320-321.34 If the "pernicious influenceon future negotiations" was considered a sufficient threat to the publicinterest for President Washington to decline to share foreign correspondenceeven with Congress, it must surely be a sufficient basis for withholdingthe British government's letter from the public at large under FOIA.
President Hoover similarly refused Congress's demand (S. Doc. No. 216, 71stCong., Special Sess. (1930)) to publicize "statements, reports, tentativeand informal proposals as to subjects, persons, and governments given to[him] in confidence" during negotiations over the London Treaty forthe Limitation and Reduction of Naval Armaments. In words that speak directlyto the court of appeals' ruling here, President Hoover explained:
The Executive, under the duty of guarding the interests of the United States,in the protection of future negotiations, and in maintaining relations ofamity with other nations, must not allow himself to become guilty of a breachof trust by betrayal of these confidences. He must not affront representativesof other nations, and thus make future dealings with those nations moredifficult and less frank. To make public in debate or in the press suchconfidences would violate the invariable practice of nations. It would closeto the United States those avenues of information which are essential forfuture negotiations and amicable intercourse with the nations of the world.I am sure the Senate does not wish me to commit such a breach of trust.
Ibid.35
d. This Court's decisions support the Executive Branch's interpretation:This Court has long recognized that the Executive Branch's ability to maintainconfidential relationships is essential for the protection and advancementof the United States' national security and foreign relations interests.In CIA v. Sims, the Court sustained the government's denial of a FOIA requeston national security grounds and, in so doing, underscored the inappropriatenessof courts superintending Executive Branch judgments about the need to preservethe confidentiality of communications bearing on national security. TheCourt observed that, if important sources of national security information"come to think that the [United States] will be unable to maintainthe confidentiality of its relationship to them, many could well refuseto supply information to the [United States] in the first place." 471U.S. at 175. Further, the Court "seriously doubt[ed]" that potentialsources of information "will rest assured knowing that judges, whohave little or no background in the delicate business of intelligence gathering"(or, here, foreign diplomacy) will order the government's secrets revealed"only after examining the facts of the case to determine whether the[government] actually needed to promise confidentiality in order to obtainthe information." Id. at 176.
In Haig v. Agee, the Court likewise held that "the Government has acompelling interest in protecting both the secrecy of information importantto our national security and the appearance of confidentiality so essentialto the effective operation of our foreign intelligence service." 453U.S. at 307 (emphasis added). "It is elementary that the successfulconduct of international diplomacy * * * require[s] both confidentialityand secrecy. Other nations can hardly deal with this Nation in an atmosphereof mutual trust unless they can be assured that their confidences will bekept." New York Times Co., 403 U.S. at 728 (Stewart, J., concurring).36
Those cases recognize the utter unworkability of a scheme under which courtswould make their own independent judgments about maintaining the confidentialityof national security information-either because deference is not deemedto have been "justif[ied]" through an unspecified "initialshowing" in a particular case, or because of a disagreement with theExecutive Branch about the causes and nature of damage to foreign relationsthat may be taken into account. The President's singular authority to maintainsecrecy is essential to the conduct of foreign affairs:
In this vast external realm, with its important, complicated, delicate andmanifold problems, the President alone has the power to speak or listenas a representative of the nation.
* * * * *
The nature of transactions with foreign nations, moreover, requires cautionand unity of design, and their success frequently depends on secrecy anddispatch.
* * * * *
[The President] has his agents in the form of diplomatic, consular and otherofficials. Secrecy in respect of information gathered by them may be highlynecessary, and the premature disclosure of it productive of harmful results.
Curtiss-Wright, 299 U.S. at 319, 320 (emphasis added; internal quotationmarks omitted).
The loss of important information, candid dialogue, and honest assessmentsby foreign governments that would follow in the wake of a judicially orderedbreach of another nation's trust would deal a tremendous blow to the UnitedStates' diplomatic efforts. As in Sims, there is little reason for foreigngovernments "to have great confidence in the ability of judges"to make the "complex political [and] historical" judgments thatunderlie classification decisions, since judges "have little or nobackground in the delicate business" of foreign diplomacy. 471 U.S.at 176. In particular, if foreign governments cannot be assured that theircommunications with the United States will enjoy meaningful protection fromdisclosure and that they will, as a result, be spared the risks to theirinterests that may attend such exposure, they are likely to "'closeup like a clam,'" id. at 172, leaving the United States unable to obtainthe information it so critically needs for the successful conduct of itsforeign affairs.37 From the foreign government's perspective, "[a]nuncertain privilege, or one which purports to be certain but results inwidely varying applications by the courts, is little better than no privilegeat all." Upjohn Co. v. United States, 449 U.S. 383, 393 (1981). Theprotection accorded confidences of the United States government by othernations may be eroded as well. In short, this is an area that "uniquelydemand[s] single-voiced statement of the Government's views." Bakerv. Carr, 369 U.S. 186, 211 (1962).
Indeed, experience validates the State Department's expressed concern thatbreach of a foreign government's trust will reverberate through our diplomaticrelations. Disclosure of the Pentagon Papers impaired our diplomatic relationswith foreign governments who were concerned about the United States' abilityto preserve their confidences. Secretary of State William Rogers explained:
I've had several conversations with foreign governments * * * who've expressedtheir concern about discussions with us on matters that are confidential.* * * Now, if those governments feel that those discussions cannot be heldin confidence, then we have a serious problem which can be very harmfulto the national interest, not only in the long run but in the short run.* * * For example, I had one ambassador who came in and said that our Governmenthad assured his Government that the role that they played in attemptingto work out a peaceful settlement in Vietnam would never be disclosed. Andhe said "I'm not going to trust your Government from now on. You'vedisclosed it."
65 State Dep't Bull. 79 (1971); see also New York Times, 403 U.S. at 762-763(Blackmun, J., dissenting). Similarly, the Mexican government's failureto preserve the confidentiality of the United States' settlement effortsderailed peaceful efforts to avert the Mexican War. K. Bauer, The MexicanWar 1846-1848, at 21-26 (1974).38
Preserving the confidentiality of communications in the area of internationallaw enforcement and extradition is critical in its own right. Under theextradition treaty between the United States and the United Kingdom, likemost of the extradition treaties entered into by the United States in thelast fifteen years, the government from whom extradition is requested isobligated to represent the requesting State in the extradition proceedings.39When extradition is contested, as it was by respondent's client, the requestingand sending governments may spend years engaged in sensitive communicationspertaining to issues raised in the legal proceedings, the location of fugitives,investigative sources and methods, investigative or prosecutorial strategies,security issues, humanitarian concerns, and the domestic and diplomaticrepercussions of the extradition. One government may question the strengthof a case or the commitment of the other government to a pending extraditionmatter, or it may seek to assuage particular political or humanitarian concernsin the sending country. With many countries whose legal systems differ fromours, concerns about the nature of the criminal proceedings, the motivationfor the prosecution, or conditions of incarceration may be expressed confidentiallythat neither government would wish to have voiced publicly.
With respect to international law enforcement more generally, preservingthe trust and ongoing cooperation of foreign governments and protectingthe confidentiality of the candid information they share-as participantsin transnational efforts to prevent terrorism, to locate and bring to justiceinternational fugitives, and to combat (for example) narcotics trafficking,alien smuggling, and illegal weapons sales-represent distinct foreign policyobjectives, separate and apart from any individual criminal matter. Giventhe vital importance of cultivating an atmosphere of trust in which candidand timely exchanges of information can be encouraged, "[g]reat nations,like great men, should keep their word." Sims, 471 U.S. at 175 (quotingFPC v. Tuscarora Indian Nation, 362 U.S. 99, 142 (1960) (Black, J., dissenting))."Effectiveness in handling the delicate problems of foreign relationsrequires no less." United States v. Pink, 315 U.S. 203, 229 (1942).40
Accordingly, this Court should reject the court of appeals' counterintuitiveand perilous conclusion that no threat of "harm" to the "foreignrelations of the United States" (Exec. Order No. 12,958, § 1.1(l))is presented by the prospect of a foreign government limiting or terminatingnegotiations or cooperation with the United States on a sensitive matter,or refusing to afford reciprocal protection for the confidences of the UnitedStates, if its confidences are not preserved. The "changeable and explosivenature of contemporary international relations," Haig, 453 U.S. at292, and the breach of trust that disclosure of the British government'sconfidences would cause in foreign relations generally and in the delicatearena of international law enforcement and extradition in particular, warrantreversal of the court of appeals' judgment.
2. FOIA requires utmost deference to the Executive Branch's judgment thatdisclosure of the British government's letter will damage national securityby breaching that government's trust
The court of appeals held that the State Department declarations discussingthe harm that release of the British Government's letter would cause tothe Nation's foreign relations merited no deference in this FOIA suit becausethe Executive Branch must "justify" judicial deference to itsforeign relations judgments through an unspecified "initial showing."Pet. App. 16a. That conclusion is inconsistent with the historical, constitutionallybased tradition of judicial deference to the Executive in such matters (seepp. 15-26, supra), and with the 1974 amendments to FOIA, in which Congressenacted Exemption 1 in its present form. Pub. L. No. 93-502, § 2(a),88 Stat. 1563.
The amendment to Exemption 1 was enacted in response to this Court's decisionin Environmental Protection Agency v. Mink, 410 U.S. 73 (1973). Prior tothe 1974 amendments, Exemption 1 protected any matters "specificallyrequired by Executive order to be kept secret in the interest of nationaldefense or foreign policy." 5 U.S.C. 552(b)(1) (1970). In Mink, theCourt found "wholly untenable any claim that [FOIA] intended to subjectthe soundness of executive security classifications to judicial review atthe insistence of any objecting citizen," and it likewise rejected"the proposition that Exemption 1 authorizes or permits in camera inspectionof a contested document bearing a single classification stamp so that thecourt may separate the secret from the supposedly nonsecret and order disclosureof the latter." Id. at 84. Congress amended FOIA in 1974, in part,to "override" Mink "with respect to in camera review of classifieddocuments," S. Conf. Rep. No. 1200, 93d Cong., 2d Sess. 11 (1974),and to permit courts to "examine the contents of such agency recordsin camera to determine whether such records or any part thereof shall bewithheld under any of the exemptions," 5 U.S.C. 552(a)(4)(B). Congressalso amended Exemption 1 itself to add its second condition on withholding-thatthe matters involved "are in fact properly classified pursuant to [an]Executive order." The circumstances of the enactment of the 1974 amendmentsdemonstrate, however, that they are properly read to respect the Executive'sparamount authority in protecting national security information.
When the proposed amendments to FOIA were before a Conference Committee,President Ford wrote a letter in which he objected that the bill "place[d]the burden of proof upon an agency to satisfy a court that a document ** * [was] properly classified," and he urged that the amendments "notusurp my Constitutional responsibilities as Commander-in-Chief." 120Cong. Rec. 33,158 (1974). President Ford further explained that his "greatrespect for the courts does not prevent me from observing that they do notordinarily have the background and expertise to gauge the ramificationsthat release of a document may have upon our national security." Ibid.The President proposed specifying that a court could order release of adocument only if it found the "classification to have been arbitrary,capricious, or without a reasonable basis." Ibid.
"[T]he ensuing conference actions on these matters were responsiveto [the President's] concerns and were designed to accommodate further interestsof the Executive Branch." 120 Cong. Rec. 33,159 (1974) (Letter fromSenate Kennedy and Rep. Moorhead to President Ford (Sept. 23, 1974)). TheConference Report expressed Congress's intent that courts, "in makingde novo determinations in section 552(b)(1) cases," accord "substantialweight" to an agency's "unique insights into what adverse [e]ffectsmight occur as a result of public disclosure," and thus of the necessityof classification in the national security area. See S. Conf. Rep. No. 1200,supra, at 11. Members of Congress echoed that expectation.41
President Ford vetoed the 1974 amendments to FOIA, in part because:
[T]he courts should not be forced to make what amounts to the initial classificationdecision in sensitive and complex areas where they have no particular expertise.As the legislation now stands, a determination by the Secretary of Defensethat disclosure of a document would endanger our national security would,even though reasonable, have to be overturned by a district judge who thoughtthe plaintiff's position just as reasonable. Such a provision would violateconstitutional principles.
H.R. Doc. No. 383, 93d Cong., 2d Sess. III (1974). The President proposed,instead, that courts be required to uphold the classification decision ifit has any "reasonable basis to support it," ibid., that is, unlessthe classification decision is "arbitrary, capricious, or without areasonable basis," 120 Cong. Rec. at 33,158. Congress ultimately overrodethe President's veto, but not without agreement that, under the President'sreading, the provision for judicial review is "an obviously dangerousprovision," and that the courts therefore should review classificationdecisions in "exactly the way" the President proposed. House Comm.on Gov't Operations & Senate Comm. on the Judiciary, Freedom of InformationAct and Amendments of 1974 Source Book, 94th Cong., 1st Sess. 405 (1975).(Rep. Moorhead, Chairman of the House Conferees); see also id. at 416 (Rep.Erlenborn) ("great weight" is due agency judgments).
Thus, the 1974 amendments were intended to give courts some role in reviewingdecisions to withhold information under Exemption 1, and thereby to overruleMink. Congress intended that role to be narrow and appropriately deferential,consistent with the separation of powers and the President's responsibilitiesunder the Constitution for the conduct of national defense and foreign affairs.The Ninth Circuit departed dramatically from the role Congress carefullycrafted for courts, by denying deference to and by second-guessing the foreignpolicy judgment of the Executive Branch. Yet, it is only by cleaving strictlyto the standard of "substantial weight" Congress intended whenExemption 1 was enacted in 1974-and thus limiting judicially ordered disclosuresto those instances where the Executive Branch's explanation of the harmto national security is implausible or foreclosed by the plain terms ofthe Executive Order-that a court can conform its FOIA review to the Constitution'scommand that the "utmost deference" be accorded the Executive'sjudgment regarding the need for secrecy in the conduct of foreign relations.See Nixon, 418 U.S. at 710.42 Correspondingly, the ability of a court toorder disclosure where it concludes that the Executive's explanation ofthe harm to the national security is implausible (even after giving it utmostdeference) or contrary to the plain terms of the Executive Order-and toreview a document in camera in appropriate circumstances-meets the concernsidentified in the separate opinions in Mink that courts not be requiredby Exemption 1 to give "blind acceptance to Executive fiat," 410U.S. at 95 (Stewart, J., concurring), or to sustain withholding even wherethe information might bear no "discernible relation" to the nationalsecurity, id. at 110 (Douglas, J., concurring).
The utmost deference standard comports with FOIA's provision for de novodistrict court review, 5 U.S.C. 552(a)(4)(B). Congress's reference to denovo review must be read against the well-established judicial traditionof affording expert agency judgments substantial deference in the courseof deciding legal questions over which the court has plenary authority.43Indeed, this Court reaffirmed just last Term that a statutory provisionfor de novo review does not license courts to disregard relevant agencyinterpretations and judgments.44 Likewise, the Administrative ProcedureAct directs reviewing courts to "decide all relevant questions of law"and to "interpret * * * statutory provisions," 5 U.S.C. 706, yetthose provisions have never been read to foreclose appropriate deferenceto agency judgments. See Chevron U.S.A. Inc. v. Natural Resources DefenseCouncil, Inc., 467 U.S. 837, 843-844 (1984). Application of that backgroundprinciple of judicial deference "is especially appropriate," moreover,when Executive Branch officials "exercise especially sensitive politicalfunctions that implicate questions of foreign relations." Aguirre-Aguirre,119 S. Ct. at 1445.45 Accordingly, FOIA's reference to de novo review shouldnot be construed to create constitutional problems that the Act's text,structure, and legislative history eschew.46
That is especially so in light of the 1996 amendments to FOIA that providefor the disclosure of electronic records. Pub. L. No. 104-231, 110 Stat.3049. In those amendments, Congress added a sentence to FOIA's judicialreview provision, immediately following the one that provides for de novoreview, stating that, "[i]n addition to any other matters to whicha court accords substantial weight, a court shall accord substantial weightto an affidavit of an agency concerning the agency's determination as tothe technical feasibility" of making records available in electronicformat. See Pub. L. No. 104-231, § 6, 110 Stat. 3052; see 5 U.S.C.552(a)(4)(B) (Supp. IV 1998). The reference to "any other matters"on which a court "accords substantial weight" must include theestablished practice under Exemption 1 of according that measure of deferenceto Executive classification decisions, consistent with the 1974 ConferenceReport's assurance that courts would give "substantial weight"to agency affidavits explaining the basis for classification. See pp. 45-46,supra. Thus, FOIA's text now provides the precise "substantial weight"formulation of deference to Executive decisions that Congress intended underFOIA in the national security area and that the Constitution requires.
Given that the rule of utmost deference to Executive Branch classificationdecisions and foreign policy judgments is firmly embedded both in our nationalexperience and in the relevant constitutional and statutory framework, theNinth Circuit plainly erred in holding (Pet. App. 16a) that the ExecutiveBranch must "justify" judicial deference to its foreign relationsjudgments through an unspecified "initial showing." The StateDepartment declarations in this case plainly identified and described theharm to national security that disclosure threatened-interference with pendingand future extradition matters and cooperative law enforcement efforts withGreat Britain; a breach of trust between governments; and a larger threatto the United States' ability to receive candid, confidential informationfrom foreign governments and to insist on equivalent protections for itsown communications. See Pet. App. 52a-54a, 56a-58a. That explanation borea plausible (indeed, compelling) connection to the Nation's foreign policyand national security, and respondent introduced no affirmative argumentor evidence to the contrary. Because the Executive Branch thus brought the"very delicate, plenary and exclusive power of the President as thesole organ of the federal government in the field of international relations"squarely to bear (Curtiss-Wright, 299 U.S. at 320) on the litigation, thejudiciary's constitutional and statutory obligation to afford the ExecutiveBranch the utmost deference in its foreign policy judgment was triggered.The court of appeals had no authority to insist on more.47
The judgment of the court of appeals should be reversed.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney
General
EDWIN S. KNEEDLER
Deputy Solicitor General
PATRICIA A. MILLETT
Assistant to the Solicitor
General
LEONARD SCHAITMAN
JOHN P. SCHNITKER
AUGUST E. FLENTJE
Attorneys
DAVID R. ANDREWS
Legal Adviser
Department of State
STEVEN GARFINKEL
Director
Information Security
Oversight Office
OCTOBER 1999
1 Section 1.1(d)(1) of the Executive Orderdefines "foreign government Information" to include "informationprovided to the United States Government by a foreign government * * * withthe expectation that the information, the source of the information, orboth, are to be held in confidence." The term also embraces "informationreceived and treated as 'Foreign Government Information' under the termsof a predecessor order." Id. § 1.1(d)(3).
2 Under the terms of the Executive Order, the Director of the Office ofManagement and Budget to delegated the Order's implementation and monitoringfunctions to the Director of the Information Security Oversight Office.Exec. Order No. 12,958, § 5.2(b). When the Executive Order issued,that Office was an administrative component of the Office of Managementand Budget. Iit is now an administrative component of the National Archivesand Records Administration. The Information Security Oversight Office receivespolicy and program guidance from the Assistant to the President for NationalSecurity Affairs. See id. § 5.3(b).
3 Respondent sought summary judgment solely on the grounds that the governmenttook more than ten days to process his FOIA requests and that the lettersdenying the FOIA requests failed to identify the governing Executive Order.See Pl.'s Mem. in Supp. of Summ. J. at 3-4.
4 The government also submitted the declaration of Marshall Williams, whorecounted the administrative processing of respondent's FOIA claim. J.A.44-49.
5 Respondent subsequently moved to set aside the district court's judgmentunder Rule 60(b)(6) of the Federal Rules of Civil Procedure, asserting thatan unidentified British government employee had disclosed the contents ofthe letter to an unidentified acquaintance of respondent. J.A. 52-56. Thedistrict court denied respondent's motion (J.A. 57-61), and he did not appealthat ruling.
6 During oral argument, counsel for the United States represented to thecourt that the recently installed Labor Party government in Great Britainhad informed the State Department that, like the predecessor ConservativeParty government, it considered disclosure of the letter at issue in thiscase to be "out of the question."
7 The first condition is that the information is classified by an "originalclassification authority," which occurred here. See Exec. Order. No.12,958, §§ 1.2(a)(1), 1.4(a) and (c); 22 C.F.R. 9.7; Pet. App.7a, 32a. The second-that the information is "under the control of theUnited States government"-also is plainly satisfied here. Pet. App.6a-7a, 32a. Finally, the district court and court of appeals found (id.at 7a, 35a), and respondent has conceded (id. at 7a), that the British government'sletter qualifies for classification as information concerning the "foreignrelations or foreign activities of the United States." See Exec. OrderNo. 12,958, § 1.5(d).
In the district court and the court of appeals, the government argued thatthe letter also was properly regarded as "Foreign Government Information."The district court concluded (Pet. App. 33a-35a) that the letter did notqualify as foreign government information because the British governmentlacked a contemporaneous expectation of confidentiality. That ruling improperlydisregarded the State Department's expert assessment that the document is"of a nature that it is evident that confidentiality was expected atthe time it was sent" (id. at 57a), and the British government's explicitrepresentation that "the normal line in cases like this" is thatsuch "correspondence between Governments is confidential" (Resp.Br. in Opp. App. 30a). Furthermore, the British government sent the letterat a time when the United States government presumed the confidentialityof such communications. See Exec. Order No. 12,356, 3 C.F.R. 169, §1.3(c) (1983) (Resp. Br. in Opp. App. 7a); see also Exec. Order No. 12,958,§ 1.1(d)(3) ("Foreign Government Information" includes all"information received and treated as 'Foreign Government Information'under the terms of a predecessor order").
8 See Pet. 13 & n.5 (citing cases); Pet. Reply 2 n.2 (same).
9 See also New York Times Co. v. United States, 403 U.S. 713, 727 (1971)(Stewart, J., concurring) ("[T]he Executive is endowed with enormouspower in the two related areas of national defense and international relations.").
10 See also Haig, 453 U.S. at 292 ("Matters intimately related to foreignpolicy and national security are rarely proper subjects for judicial intervention.").
11 See also Senate Comm. on Foreign Relations, 14th Cong., 1st Sess., Reportof Feb. 15, 1816, reprinted in 8 Comp. of Reports of the Senate Comm. onForeign Relations, 1789-1901, at 24 (1901) ("The President is the constitutionalrepresentative of the United States with regard to foreign nations. He managesour concerns with foreign nations and must necessarily be most competentto determine when, how, and upon what subjects negotiation may be urgedwith the greatest prospect of success.") (quoted in United States v.Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936)); Act of July 27,1789, ch. 4, § 1, 1 Stat. 28-29 (in creating the Department of ForeignAffairs, Congress gave the President wide discretion to determine what activitiesthe department would undertake in the realm of diplomatic relations).
12 The Sufficiency of the President's Certification Under the Mexican DebtDisclosure Act, 20 Op. Off. Legal Counsel 673, 678 (1996).
13 Memorandum from John R. Stevenson, Legal Adviser, Dep't of State, andWilliam H. Rehnquist, Assistant Attorney General, Dep't of Justice, Officeof Legal Counsel, The President's Executive Privilege to Withhold ForeignPolicy and National Security Information (Dec. 8, 1969) (Stevenson Memo.).
14 President Washington also refused to accede to a Senate request for copiesof correspondence "between the Minister of the United States at theRepublic of France and said Republic." 4 Annals of Cong. 34, 37-38(1794); see also W. Dellinger & H. Powell, The Attorney General's FirstSeparation of Powers Opinion, 13 Const. Commentary 309, 316 (1996).
15 Similar decisions to withhold information where the Executive Branchdetermined that disclosure was not in the public interest were made by,among others, Presidents Fillmore (proposal by the King of the SandwichIslands to transfer the islands to the United States); Lincoln (communicationswith New Granada); and Cleveland (correspondence with Spain). See Historyof Refusal by Executive Branch Officials to Provide Information Demandedby Congress, 6 Op. Off. Legal Counsel 751, 759-770 (1982); see also TheSufficiency of the President's Certification Under the Mexican Debt DisclosureAct, 20 Op. Off. Legal Counsel 673 (1996); East-West Trade: Hearings Beforethe Permanent Subcomm. on Investigations of the Senate Comm. on Gov't Operations,84th Cong., 2d Sess. 162 (1956) (Secretary of State refuses to disclosedocuments pertaining to discussions with foreign governments, in part becauseit "would constitute a breach of trust"); S. Doc. No. 130, 67thCong., 2d Sess., 62 Cong. Rec. 2771-2772 (1922) (President Harding declinesto submit to Congress records of discussions and conversations with foreigngovernments that occurred during the Washington Conference on the Limitationof Armament); S. Docs. Nos. 798, 799, 63d Cong., 3d Sess., 52 Cong. Rec.2854-2855 (1915) (President Wilson declines to disclose diplomatic communicationsrelating to the shipment of copper to neutral countries); Stevenson Memo.,supra (chronicling history of presidential refusals to disclose foreignpolicy information if it was considered contrary to the national interestto do so); H. Wolkinson, Demands of Congressional Committees for ExecutivePapers, 10 Fed. Bar J. 103-150, 223-259, 319-350 (Apr., July & Oct.1949) (additional examples).
16 See also New York Times, 403 U.S. at 729 (Stewart, J., concurring) ("[U]nderthe Constitution the Executive must have the largely unshared duty to determineand preserve the degree of internal security necessary to exercise thatpower [over the conduct of foreign affairs] successfully.").
17 "[T]he practical construction of the Constitution, as given by somany acts of congress, and embracing almost the entire period of our nationalexistence, should not be overruled" absent compelling evidence to thecontrary. Field v. Clark, 143 U.S. 649, 691 (1892).
18 See Pet. App. 61a ("On a daily basis, the United States engagesin complex and sensitive discussions with the British at various levelson numerous important subjects of concern, including weapons non-proliferation,trade disputes, matters before the United Nations Security Council, humanrights and law enforcement.").
19 With respect to the public perception in Great Britain of the extraditionsout of which this case arose, see, e.g., O. Bowcott, Extra-special Relationship,The Guardian, July 5, 1994, at T18 (describing the 124-year history of British/U.S.cooperation in extradition matters; Croft's attorney claims the Home Secretaryis "fearful of upsetting the Americans maybe because he wants IRA suspectsheld in the States sent back here"; "[e]xtradition appeals havethe quality of transforming themselves into political issues"); C.Reed, IRA "Quid Pro Quo" Deal Suspected, The Guardian, Apr. 5,1994, at 4 ("It will not have escaped the Home Secretary's notice inconsidering the extradition to America of Sally Croft and Susan Hagan ** * that four IRA prison escapers in California are the subject of intense-andso far unsuccessful-attempts to extradite them to Britain."); S. Tendler,MPs Seek to Halt Extradition of Ex-Cult Members, The Times of London, Mar.29, 1993, available in 1993 WL 10565426 ("There is concern [the HomeSecretary] may be under pressure to allow the extradition because of theneed to guarantee continued co-operation from the American authorities onareas such as the extradition of IRA suspects.").
20 While the political sensitivity of information in this country will notwarrant classification under the Executive Order if the sensitivity arisessolely out of a desire to "prevent embarrassment to a person, organization,or agency" in the United States government, Exec. Order No. 12,958,§ 1.8(a)(2), that concern is an important and highly relevant considerationwhen information supplied by a foreign government is at issue and the informationis sensitive to that nation. Cf. United States Dep't of State v. Ray, 502U.S. 164, 176-177 & n.12 (1991) (exposure of persons outside the governmentto embarrassment, in violation of a promise of confidentiality, is a relevantconsideration under Exemption 6). Indeed, it is in those circumstances thatrelease of a document in breach of an expectation of confidentiality couldhave a particularly negative impact on relations with that country.
21 See also The Federalist No. 64, supra, at 393 (Jay) ("Those matterswhich in negotiations usually require the most secrecy and the most dispatchare those preparatory and auxiliary measures which are not otherwise importantin a national view, than as they tend to facilitate the attainment of theobjects of the negotiation.")
22 Contrary to respondent's assertion in its Brief in Opposition (at i,17), we have never conceded and do not concede here that the contents ofthe letter at issue in this case are innocuous. See, e.g., June 3, 1996Tr. 12. We contend only that some communications bearing on foreign relationsmatters may, to untrained eyes, appear to be so. See Pet. App. 56a.
23 See also Terlinden v. Ames, 184 U.S. 270, 290 (1902) ("The decisionsof the Executive Department in matters of extradition, within its own sphere,and in accordance with the Constitution, are not open to judicial revision.");Austin v. Healey, 5 F.3d 598, 600 (2d Cir. 1993) ("Extradition is primarilya function of the executive branch, and the judiciary has no greater rolethan that mandated by the Constitution, or granted to the judiciary by Congress."),cert. denied, 510 U.S. 1165 (1994); Martin v. Warden, 993 F.2d 824, 829(11th Cir. 1993) ("Extradition ultimately remains an Executive function.* * * The Secretary [of State] exercises broad discretion and may properlyconsider myriad factors affecting both the individual defendant as wellas foreign relations which an extradition magistrate may not.").
24 Current extradition matters include the United States' effort to extraditefrom the United Kingdom three persons suspected of involvement in the 1998bombing of the American embassies in Tanzania and Kenya, which killed 224people, including twelve Americans.
25 For example, the United States is currently attempting to extradite toSwitzerland the former prime minister of the Ukraine, Pavel Lazerenko, toface money laundering charges involving the alleged embezzlement of nationalassets (No. Cr 99-0122-MJJ-MISC, N.D. Cal.). The extradition from Pakistanof Ramzi Yousef, who was charged with the World Trade Center bombing inNew York City, was likewise of particular political and diplomatic sensitivity.
26 Cf. Snepp, 444 U.S. at 512-513 (describing ripple effect of former intelligenceagent's publication of unclassified information, without CIA review, ongovernment's ability to obtain intelligence information).
27 See also Exec. Order No. 12,958, § 3.4(b)(6) (exempting from automaticdeclassification after 25 years information "the release of which shouldbe expected to * * * seriously and demonstrably impair relations betweenthe United States and a foreign government, or seriously and demonstrablyundermine ongoing diplomatic activities of the United States").
28 Deference to the Executive's interpretation of an Executive Order shouldbe even greater than it is to an agency's construction of its own regulations(see Martin v. Occupational Safety & Health Review Comm'n, 499 U.S.144, 150-151 (1991)). In the latter area, the agency's regulation and ultimatelyits interpretation must reasonably correlate with a substantive standardset by an Act of Congress. With respect to Executive Orders, by contrast,the Executive Branch is wholly responsible for establishing the Order'soperational goals, selecting the substantive criteria to regulate ExecutiveBranch behavior, interpreting the Order's terms, and applying the Orderin various factual contexts. The entire process is thus internalized tothe Executive Branch and involves subjects of "predominant executiveauthority and of traditional judicial abstention." Webster v. Doe,486 U.S. 592, 616 (1988) (Scalia, J., dissenting); see also New York Times,403 U.S. at 729 (Stewart, J., concurring) (the promulgation and enforcementof executive regulations governing classified inormation in the foreignaffairs realm is "a matter of sovereign prerogative and not * * * amatter of law as courts know law"); compare Curtiss-Wright, 299 U.S.at 319-322; Loving v. United States, 517 U.S. 748, 772-774 (1996).
29 See 120 Cong. Rec. 6811 (1974) (Rep. Erlenborn) ("[T]he court wouldnot have the right to review the criteria under the Executive Order. Thedescription 'in the interest of the national defense or foreign policy'is descriptive of the area that the criteria have been established in butdoes not give the court the power to review the criteria.").
30 Cf. Legille v. Dann, 544 F.2d 1, 10 (D.C. Cir. 1976) (presumptions areprocedural and do not change substantive law). If anything, the eliminationof the presumption magnified the court of appeals' error: it did not simplyfail to heed a generalized presumption; it refused to grant meaningful deferenceto the expert and individualized judgments of Executive Branch officialsfocused on the precise disclosure issue before the court.
31 See Exec. Order No. 11,652, 37 Fed. Reg. 5209 (1972) (effective 1972-1978);Exec. Order No. 10,501, 18 Fed. Reg. 7049 (1953) (effective 1953-1972);Exec. Order No. 10,290, 16 Fed. Reg. 9795 (1951) (effective until 1953).
32 Highlighting the flaw in the court of appeals' reasoning is the factthat the presumption of harm also was eliminated for "the identityof a confidential foreign source, or intelligence sources or methods."See Exec. Order No. 12,356, § 1.3(c). Surely a court could not extrapolatefrom that action the conclusion that the government intended to forecloseitself from showing in individual cases that an intelligence source communicatedinformation against a background understanding or assumption of confidentialityand that breach of his trust would seriously impair the government's intelligencegathering capability. See Sims, 471 U.S. at 169-180.
33 In any event, the present case was decided on the basis that the classifiedletter constituted information concerning the "foreign relations orforeign activities of the United States," not that it qualified as"foreign government information." See Pet. App. 7a. Nothing inthe new Executive Order altered the manner in which "foreign relationsor foreign activities" information is classified. See Exec. Order No.12,958, § 1.5(d); Exec. Order No. 12,356, § 1.3(a)(5).
34 See also The Federalist No. 64, supra, at 393 ("[T]he Constitutionprovides that our negotiations for treaties shall have every advantage whichcan be derived from talents, information, integrity, and deliberate investigations,on the one hand, and from secrecy and dispatch on the other.").
35 See also pp. 17-20, supra; 1 Op. Off. Legal Counsel 269, 270 (1977) (wheredisclosure of confidential communications and notes of meetings with foreigngovernment officials could "impair our relations with the foreign governmentsinvolved, both by breaching a pledge of confidentiality and by releasinginformation possibly detrimental to the interests of the other governments,"the documents may be considered "state secrets"); United Statesv. Reynolds, 345 U.S. 1 (1953).
36 See also Snepp, 444 U.S. at 512 ("The continued availability ofthese foreign sources depends upon the CIA's ability to guarantee the securityof information."); Arieff v. United States Dep't of the Navy, 712 F.2d1462, 1470 (D.C. Cir. 1983) ("[T]his is a matter in which appearanceis as important as reality.").
37 See also United States v. Weber Aircraft Corp., 465 U.S. 792, 803 n.23(1984) ("[M]uch if not all of the information * * * would not findits way into the public realm even if we refused to recognize the privilege,since under those circumstances the information would not be obtained bythe Government in the first place."); cf. Sims, 471 U.S. at 175 (ifconfidentiality is not protected, "many [sources] could well refuseto supply information to the Agency in the first place").
38 On a more global level, preserving the confidentiality of communicationsover time builds trust between government officials, on both an institutionaland a personal level. Such banked trust may often be a critical factor inallowing governments to prevent the escalation of problems, to defuse confrontations,and to manage crises when they arise. Cf. Van Atta v. Defense IntelligenceAgency, No. 87-1508, 1988 WL 73856 (D.D.C. July 6, 1988) (confidential communicationsof Vietnamese government properly protected under Exemption 1 because breachof that government's trust would jeopardize ongoing and future efforts toaccount for soldiers missing in action); U.S. Gov't Information Policiesand Practices The Pentagon Papers (Part III): Hearings Before a Subcomm.of the House Comm. on Gov't Operations, 92d Cong., 1st Sess. 900-901 (June30 & July 7, 1971) (testimony of William Macomber, Deputy Under Secretary,Dep't of State) ("I think it is equally important to remember thatdiplomacy cannot function if we cannot deal with other governments in theworld and especially with governments that are not particularly friendlyto us, if we cannot deal with them on a basis of confidence--if they cannotspeak to us in confidence and have confidence that we will protect fromdisclosure what they are saying to us. If you remove the element of confidentialityfrom the diplomatic process, you destroy the diplomatic process. * * * [I]nmany places in the world, as we conduct our diplomatic processes, if wecan't keep our mouth shut, we haven't got any chance at all of moving towardpeace.").
39 See Extradition Treaty Between the Government of the United States ofAmerica and the Government of the United Kingdom of Great Britain and NorthernIreland, June 8, 1972, art. XIV, 28 U.S.T. 229, 233.
40 See also 65 State Dep't Bull. at 80 (Secretary of State Rogers) ("Ifwe can't keep our word as a nation * * * then we're going to have seriousdifficulty in dealing with other nations. It's as simple as that.").
41 See 120 Cong. Rec. 6808 (1974) (Rep. McCloskey) (1974 FOIA amendmentsare enacted "with the confidence" that courts "will * * *be very reluctant to override" an agency decision "relative todeclassification of such information"); id. at 34,166 (Rep. Moorhead)("[T]he court should give great weight to an affidavit by the Departmentthat this was properly classified."); ibid. (Rep. Erlenborn) ("greatweight").
42 See Miller v. Casey, 730 F.2d 773, 777 (D.C. Cir. 1984) ("Sincethe agency assessments are both plausible and factually uncontradicted,the trial court would have been remiss in disregarding them."); Halperin,629 F.2d at 149, 150 ("plausible").
43 See United States v. Wilson, 503 U.S. 329, 336 (1992) ("It is notlightly to be assumed that Congress intended to depart from a long establishedpolicy.").
44 United States v. Haggar Apparel Co., 119 S. Ct. 1392, 1399 (1999) (Courtof International Trade must accord Chevron deference to Customs regulationsdespite statutory provisions directing de novo decisionmaking).
45 See also Sims, 471 U.S. at 179 (holding that the national security judgmentsof Executive Branch officials "are worthy of great deference,"notwithstanding FOIA's provision for de novo review.); Church of Scientologyv. IRS, 792 F.2d 153, 168 n.6 (D.C. Cir. 1986) (Silberman, J., concurring)("Thus, Congress recognized that even within the de novo review thatit directed courts to conduct under FOIA, there was room for deference tothe agency on factual issues relating to the availability of an exemptionin a particular case within the agency's delegated area of responsibility."),aff'd, 484 U.S. 9 (1987); Halperin, 629 F.2d at 148 ("limited standardfor de novo review" applies in "national security FOIA case[s]").That Sims involved Exemption 3 of the FOIA, rather than Exemption 1, isimmaterial, because de novo review applies to both. See Halperin, 629 F.2dat 148 ("The logic of this judicial review standard applies equallyto all national security FOIA cases, whether they arise formally under Exemption1 or Exemption 3.").
46 See Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 466(1989) (construing statute to avoid separation-of-powers concerns).
47 We previously lodged copies of the classified document under seal withthe Clerk of this Court.
STATUTORY APPENDIX
The Freedom of Information Act, 5 U.S.C. 552 (1994 & Supp. IV 1998)provides:
§ 552. Public information; agency rules, opinions, orders, records,and proceedings
(a) Each agency shall make available to the public information as follows:
(1) Each agency shall separately state and currently publish in the FederalRegister for the guidance of the public-
(A) descriptions of its central and field organization and the establishedplaces at which, the employees (and in the case of a uniformed service,the members) from whom, and the methods whereby, the public may obtain information,make submittals or requests, or obtain decisions;
(B) statements of the general course and method by which its functions arechanneled and determined, including the nature and requirements of all formaland informal procedures available;
(C) rules of procedure, descriptions of forms available or the places atwhich forms may be obtained, and instructions as to the scope and contentsof all papers, reports, or examinations;
(D) substantive rules of general applicability adopted as authorized bylaw, and statements of general policy or interpretations of general applicabilityformulated and adopted by the agency; and
(E) each amendment, revision, or repeal of the foregoing.
Except to the extent that a person has actual and timely notice of the termsthereof, a person may not in any manner be required to resort to, or beadversely affected by, a matter required to be published in the FederalRegister and not so published. For the purpose of this paragraph, matterreasonably available to the class of persons affected thereby is deemedpublished in the Federal Register when incorporated by reference thereinwith the approval of the Director of the Federal Register.
(2) Each agency, in accordance with published rules, shall make availablefor public inspection and copying-
(A) final opinions, including concurring and dissenting opinions, as wellas orders, made in the adjudication of cases;
(B) those statements of policy and interpretations which have been adoptedby the agency and are not published in the Federal Register;
(C) administrative staff manuals and instructions to staff that affect amember of the public;
(D) copies of all records, regardless of form or format, which have beenreleased to any person under paragraph (3) and which, because of the natureof their subject matter, the agency determines have become or are likelyto become the subject of subsequent requests for substantially the samerecords; and
(E) a general index of the records referred to under subparagraph (D);
unless the materials are promptly published and copies offered for sale.For records created on or after November 1, 1996, within one year aftersuch date, each agency shall make such records available, including by computertelecommunications or, if computer telecommunications means have not beenestablished by the agency, by other electronic means. To the extent requiredto prevent a clearly unwarranted invasion of personal privacy, an agencymay delete identifying details when it makes available or publishes an opinion,statement of policy, interpretation, staff manual, instruction, or copiesof records referred to in subparagraph (D). However, in each case the justificationfor the deletion shall be explained fully in writing, and the extent ofsuch deletion shall be indicated on the portion of the record which is madeavailable or published, unless including that indication would harm an interestprotected by the exemption in subsection (b) under which the deletion ismade. If technically feasible, the extent of the deletion shall be indicatedat the place in the record where the deletion was made. Each agency shallalso maintain and make available for public inspection and copying currentindexes providing identifying information for the public as to any matterissued, adopted, or promulgated after July 4, 1967, and required by thisparagraph to be made available or published. Each agency shall promptlypublish, quarterly or more frequently, and distribute (by sale or otherwise)copies of each index or supplements thereto unless it determines by orderpublished in the Federal Register that the publication would be unnecessaryand impracticable, in which case the agency shall nonetheless provide copiesof such index on request at a cost not to exceed the direct cost of duplication.Each agency shall make the index referred to in subparagraph (E) availableby computer telecommunications by December 31, 1999. A final order, opinion,statement of policy, interpretation, or staff manual or instruction thataffects a member of the public may be relied on, used, or cited as precedentby an agency against a party other than an agency only if-
(i) it has been indexed and either made available or published as providedby this paragraph; or
(ii) the party has actual and timely notice of the terms thereof.
(3)(A) Except with respect to the records made available under paragraphs(1) and (2) of this subsection, each agency, upon any request for recordswhich (i) reasonably describes such records and (ii) is made in accordancewith published rules stating the time, place, fees (if any), and proceduresto be followed, shall make the records promptly available to any person.
(B) In making any record available to a person under this paragraph, anagency shall provide the record in any form or format requested by the personif the record is readily reproducible by the agency in that form or format.Each agency shall make reasonable efforts to maintain its records in formsor formats that are reproducible for purposes of this section.
(C) In responding under this paragraph to a request for records, an agencyshall make reasonable efforts to search for the records in electronic formor format, except when such efforts would significantly interfere with theoperation of the agency's automated information system.
(D) For purposes of this paragraph, the term "search" means toreview, manually or by automated means, agency records for the purpose oflocating those records which are responsive to a request.
(4)(A)(i) In order to carry out the provisions of this section, each agencyshall promulgate regulations, pursuant to notice and receipt of public comment,specifying the schedule of fees applicable to the processing of requestsunder this section and establishing procedures and guidelines for determiningwhen such fees should be waived or reduced. Such schedule shall conformto the guidelines which shall be promulgated, pursuant to notice and receiptof public comment, by the Director of the Office of Management and Budgetand which shall provide for a uniform schedule of fees for all agencies.
(ii) Such agency regulations shall provide that-
(I) fees shall be limited to reasonable standard charges for document search,duplication, and review, when records are requested for commercial use;
(II) fees shall be limited to reasonable standard charges for document duplicationwhen records are not sought for commercial use and the request is made byan educational or noncommercial scientific institution, whose purpose isscholarly or scientific research; or a representative of the news media;and
(III) for any request not described in (I) or (II), fees shall be limitedto reasonable standard charges for document search and duplication.
(iii) Documents shall be furnished without any charge or at a charge reducedbelow the fees established under clause (ii) if disclosure of the informationis in the public interest because it is likely to contribute significantlyto public understanding of the operations or activities of the governmentand is not primarily in the commercial interest of the requester.
(iv) Fee schedules shall provide for the recovery of only the direct costsof search, duplication, or review. Review costs shall include only the directcosts incurred during the initial examination of a document for the purposesof determining whether the documents must be disclosed under this sectionand for the purposes of withholding any portions exempt from disclosureunder this section. Review costs may not include any costs incurred in resolvingissues of law or policy that may be raised in the course of processing arequest under this section. No fee may be charged by any agency under thissection-
(I) if the costs of routine collection and processing of the fee are likelyto equal or exceed the amount of the fee; or
(II) for any request described in clause (ii)(II) or (III) of this subparagraphfor the first two hours of search time or for the first one hundred pagesof duplication.
(v) No agency may require advance payment of any fee unless the requesterhas previously failed to pay fees in a timely fashion, or the agency hasdetermined that the fee will exceed $250.
(vi) Nothing in this subparagraph shall supersede fees chargeable undera statute specifically providing for setting the level of fees for particulartypes of records.
(vii) In any action by a requester regarding the waiver of fees under thissection, the court shall determine the matter de novo: Provided, That thecourt's review of the matter shall be limited to the record before the agency.
(B) On complaint, the district court of the United States in the districtin which the complainant resides, or has his principal place of business,or in which the agency records are situated, or in the District of Columbia,has jurisdiction to enjoin the agency from withholding agency records andto order the production of any agency records improperly withheld from thecomplainant. In such a case the court shall determine the matter de novo,and may examine the contents of such agency records in camera to determinewhether such records or any part thereof shall be withheld under any ofthe exemptions set forth in subsection (b) of this section, and the burdenis on the agency to sustain its action In addition to any other mattersto which a court accords substantial weight, a court shall accord substantialweight to an affidavit of an agency concerning the agency's determinationas to technical feasibility under paragraph (2)(C) and subsection (b) andreproducibility under paragraph (3)(B).
(C) Notwithstanding any other provision of law, the defendant shall servean answer or otherwise plead to any complaint made under this subsectionwithin thirty days after service upon the defendant of the pleading in whichsuch complaint is made, unless the court otherwise directs for good causeshown.
[(D) Repealed. Pub.L. 98-620, Title IV, § 402(2), Nov. 8, 1984, 98Stat. 3357.]
(E) The court may assess against the United States reasonable attorney feesand other litigation costs reasonably incurred in any case under this sectionin which the complainant has substantially prevailed.
(F) Whenever the court orders the production of any agency records improperlywithheld from the complainant and assesses against the United States reasonableattorney fees and other litigation costs, and the court additionally issuesa written finding that the circumstances surrounding the withholding raisequestions whether agency personnel acted arbitrarily or capriciously withrespect to the withholding, the Special Counsel shall promptly initiatea proceeding to determine whether disciplinary action is warranted againstthe officer or employee who was primarily responsible for the withholding.The Special Counsel, after investigation and consideration of the evidencesubmitted, shall submit his findings and recommendations to the administrativeauthority of the agency concerned and shall send copies of the findingsand recommendations to the officer or employee or his representative. Theadministrative authority shall take the corrective action that the SpecialCounsel recommends.
(G) In the event of noncompliance with the order of the court, the districtcourt may punish for contempt the responsible employee, and in the caseof a uniformed service, the responsible member.
(5) Each agency having more than one member shall maintain and make availablefor public inspection a record of the final votes of each member in everyagency proceeding.
(6)(A) Each agency, upon any request for records made under paragraph (1),(2), or (3) of this subsection, shall-
(i) determine within 20 days (excepting Saturdays, Sundays, and legal publicholidays) after the receipt of any such request whether to comply with suchrequest and shall immediately notify the person making such request of suchdetermination and the reasons therefor, and of the right of such personto appeal to the head of the agency any adverse determination; and
(ii) make a determination with respect to any appeal within twenty days(excepting Saturdays, Sundays, and legal public holidays) after the receiptof such appeal. If on appeal the denial of the request for records is inwhole or in part upheld, the agency shall notify the person making suchrequest of the provisions for judicial review of that determination underparagraph (4) of this subsection.
(B)(i) In unusual circumstances as specified in this subparagraph, the timelimits prescribed in either clause (i) or clause (ii) of subparagraph (A)may be extended by written notice to the person making such request settingforth the unusual circumstances for such extension and the date on whicha determination is expected to be dispatched. No such notice shall specifya date that would result in an extension for more than ten working days,except as provided in clause (ii) of this subparagraph.
(ii) With respect to a request for which a written notice under clause (i)extends the time limits prescribed under clause (i) of subparagraph (A),the agency shall notify the person making the request if the request cannotbe processed within the time limit specified in that clause and shall providethe person an opportunity to limit the scope of the request so that it maybe processed within that time limit or an opportunity to arrange with theagency an alternative time frame for processing the request or a modifiedrequest. Refusal by the person to reasonably modify the request or arrangesuch an alternative time frame shall be considered as a factor in determiningwhether exceptional circumstances exist for purposes of subparagraph (C).
(iii) As used in this subparagraph, "unusual circumstances" means,but only to the extent reasonably necessary to the proper processing ofthe particular requests-
(I) the need to search for and collect the requested records from fieldfacilities or other establishments that are separate from the office processingthe request;
(II) the need to search for, collect, and appropriately examine a voluminousamount of separate and distinct records which are demanded in a single request;or
(III) the need for consultation, which shall be conducted with all practicablespeed, with another agency having a substantial interest in the determinationof the request or among two or more components of the agency having substantialsubject-matter interest therein.
(iv) Each agency may promulgate regulations, pursuant to notice and receiptof public comment, providing for the aggregation of certain requests bythe same requestor, or by a group of requestors acting in concert, if theagency reasonably believes that such requests actually constitute a singlerequest, which would otherwise satisfy the unusual circumstances specifiedin this subparagraph, and the requests involve clearly related matters.Multiple requests involving unrelated matters shall not be aggregated.
(C)(i) Any person making a request to any agency for records under paragraph(1), (2), or (3) of this subsection shall be deemed to have exhausted hisadministrative remedies with respect to such request if the agency failsto comply with the applicable time limit provisions of this paragraph. Ifthe Government can show exceptional circumstances exist and that the agencyis exercising due diligence in responding to the request, the court mayretain jurisdiction and allow the agency additional time to complete itsreview of the records. Upon any determination by an agency to comply witha request for records, the records shall be made promptly available to suchperson making such request. Any notification of denial of any request forrecords under this subsection shall set forth the names and titles or positionsof each person responsible for the denial of such request.
(ii) For purposes of this subparagraph, the term "exceptional circumstances"does not include a delay that results from a predictable agency workloadof requests under this section, unless the agency demonstrates reasonableprogress in reducing its backlog of pending requests.
(iii) Refusal by a person to reasonably modify the scope of a request orarrange an alternative time frame for processing a request (or a modifiedrequest) under clause (ii) after being given an opportunity to do so bythe agency to whom the person made the request shall be considered as afactor in determining whether exceptional circumstances exist for purposesof this subparagraph.
(D)(i) Each agency may promulgate regulations, pursuant to notice and receiptof public comment, providing for multitrack processing of requests for recordsbased on the amount of work or time (or both) involved in processing requests.
(ii) Regulations under this subparagraph may provide a person making a requestthat does not qualify for the fastest multitrack processing an opportunityto limit the scope of the request in order to qualify for faster processing.
(iii) This subparagraph shall not be considered to affect the requirementunder subparagraph (C) to exercise due diligence.
(E)(i) Each agency shall promulgate regulations, pursuant to notice andreceipt of public comment, providing for expedited processing of requestsfor records-
(I) in cases in which the person requesting the records demonstrates a compellingneed; and
(II) in other cases determined by the agency.
(ii) Notwithstanding clause (i), regulations under this subparagraph mustensure-
(I) that a determination of whether to provide expedited processing shallbe made, and notice of the determination shall be provided to the personmaking the request, within 10 days after the date of the request; and
(II) expeditious consideration of administrative appeals of such determinationsof whether to provide expedited processing.
(iii) An agency shall process as soon as practicable any request for recordsto which the agency has granted expedited processing under this subparagraph.Agency action to deny or affirm denial of a request for expedited processingpursuant to this subparagraph, and failure by an agency to respond in atimely manner to such a request shall be subject to judicial review underparagraph (4), except that the judicial review shall be based on the recordbefore the agency at the time of the determination.
(iv) A district court of the United States shall not have jurisdiction toreview an agency denial of expedited processing of a request for recordsafter the agency has provided a complete response to the request.
(v) For purposes of this subparagraph, the term "compelling need"means-
(I) that a failure to obtain requested records on an expedited basis underthis paragraph could reasonably be expected to pose an imminent threat tothe life or physical safety of an individual; or
(II) with respect to a request made by a person primarily engaged in disseminatinginformation, urgency to inform the public concerning actual or alleged FederalGovernment activity.
(vi) A demonstration of a compelling need by a person making a request forexpedited processing shall be made by a statement certified by such personto be true and correct to the best of such person's knowledge and belief.
(F) In denying a request for records, in whole or in part, an agency shallmake a reasonable effort to estimate the volume of any requested matterthe provision of which is denied, and shall provide any such estimate tothe person making the request, unless providing such estimate would harman interest protected by the exemption in subsection (b) pursuant to whichthe denial is made.
(b) This section does not apply to matters that are-
(1)(A) specifically authorized under criteria established by an Executiveorder to be kept secret in the interest of national defense or foreign policyand (B) are in fact properly classified pursuant to such Executive order;
(2) related solely to the internal personnel rules and practices of an agency;
(3) specifically exempted from disclosure by statute (other than section552b of this title), provided that such statute (A) requires that the mattersbe withheld from the public in such a manner as to leave no discretion onthe issue, or (B) establishes particular criteria for withholding or refersto particular types of matters to be withheld;
(4) trade secrets and commercial or financial information obtained froma person and privileged or confidential;
(5) inter-agency or intra-agency memorandums or letters which would notbe available by law to a party other than an agency in litigation with theagency;
(6) personnel and medical files and similar files the disclosure of whichwould constitute a clearly unwarranted invasion of personal privacy;
(7) records or information compiled for law enforcement purposes, but onlyto the extent that the production of such law enforcement records or information(A) could reasonably be expected to interfere with enforcement proceedings,(B) would deprive a person of a right to a fair trial or an impartial adjudication,(C) could reasonably be expected to constitute an unwarranted invasion ofpersonal privacy, (D) could reasonably be expected to disclose the identityof a confidential source, including a State, local, or foreign agency orauthority or any private institution which furnished information on a confidentialbasis, and, in the case of a record or information compiled by criminallaw enforcement authority in the course of a criminal investigation or byan agency conducting a lawful national security intelligence investigation,information furnished by a confidential source, (E) would disclose techniquesand procedures for law enforcement investigations or prosecutions, or woulddisclose guidelines for law enforcement investigations or prosecutions ifsuch disclosure could reasonably be expected to risk circumvention of thelaw, or (F) could reasonably be expected to endanger the life or physicalsafety of any individual;
(8) contained in or related to examination, operating, or condition reportsprepared by, on behalf of, or for the use of an agency responsible for theregulation or supervision of financial institutions; or
(9) geological and geophysical information and data, including maps, concerningwells.
Any reasonably segregable portion of a record shall be provided to any personrequesting such record after deletion of the portions which are exempt underthis subsection. The amount of information deleted shall be indicated onthe released portion of the record, unless including that indication wouldharm an interest protected by the exemption in this subsection under whichthe deletion is made. If technically feasible, the amount of the informationshall be indicated at the place in the record where such deletion is made.
(c)(1) Whenever a request is made which involves access to records describedin subsection (b)(7)(A) and-
(A) the investigation or proceeding involves a possible violation of criminallaw; and
(B) there is reason to believe that (i) the subject of the investigationor proceeding is not aware of its pendency, and (ii) disclosure of the existenceof the records could reasonably be expected to interfere with enforcementproceedings,
the agency may, during only such time as that circumstance continues, treatthe records as not subject to the requirements of this section.
(2) Whenever informant records maintained by a criminal law enforcementagency under an informant's name or personal identifier are requested bya third party according to the informant's name or personal identifier,the agency may treat the records as not subject to the requirements of thissection unless the informant's status as an informant has been officiallyconfirmed.
(3) Whenever a request is made which involves access to records maintainedby the Federal Bureau of Investigation pertaining to foreign intelligenceor counterintelligence, or international terrorism, and the existence ofthe records is classified information as provided in subsection (b)(1),the Bureau may, as long as the existence of the records remains classifiedinformation, treat the records as not subject to the requirements of thissection.
(d) This section does not authorize withholding of information or limitthe availability of records to the public, except as specifically statedin this section. This section is not authority to withhold information fromCongress.
(e)(1) On or before February 1 of each year, each agency shall submit tothe Attorney General of the United States a report which shall cover thepreceding fiscal year and which shall include-
(A) the number of determinations made by the agency not to comply with requestsfor records made to such agency under subsection (a) and the reasons foreach such determination;
(B)(i) the number of appeals made by persons under subsection (a)(6), theresult of such appeals, and the reason for the action upon each appeal thatresults in a denial of information; and
(ii) a complete list of all statutes that the agency relies upon to authorizethe agency to withhold information under subsection (b)(3), a descriptionof whether a court has upheld the decision of the agency to withhold informationunder each such statute, and a concise description of the scope of any informationwithheld;
(C) the number of requests for records pending before the agency as of September30 of the preceding year, and the median number of days that such requestshad been pending before the agency as of that date;
(D) the number of requests for records received by the agency and the numberof requests which the agency processed;
(E) the median number of days taken by the agency to process different typesof requests;
(F) the total amount of fees collected by the agency for processing requests;and
(G) the number of full-time staff of the agency devoted to processing requestsfor records under this section, and the total amount expended by the agencyfor processing such requests.
(2) Each agency shall make each such report available to the public includingby computer telecommunications, or if computer telecommunications meanshave not been established by the agency, by other electronic means.
(3) The Attorney General of the United States shall make each report whichhas been made available by electronic means available at a single electronicaccess point. The Attorney General of the United States shall notify theChairman and ranking minority member of the Committee on Government Reformand Oversight of the House of Representatives and the Chairman and rankingminority member of the Committees on Governmental Affairs and the Judiciaryof the Senate, no later than April 1 of the year in which each such reportis issued, that such reports are available by electronic means.
(4) The Attorney General of the United States, in consultation with theDirector of the Office of Management and Budget, shall develop reportingand performance guidelines in connection with reports required by this subsectionby October 1, 1997, and may establish additional requirements for such reportsas the Attorney General determines may be useful.
(5) The Attorney General of the United States shall submit an annual reporton or before April 1 of each calendar year which shall include for the priorcalendar year a listing of the number of cases arising under this section,the exemption involved in each case, the disposition of such case, and thecost, fees, and penalties assessed under subparagraphs (E), (F), and (G)of subsection (a)(4). Such report shall also include a description of theefforts undertaken by the Department of Justice to encourage agency compliancewith this section.
(f) For purposes of this section, the term-
(1) "agency" as defined in section 551(1) of this title includesany executive department, military department, Government corporation, Governmentcontrolled corporation, or other establishment in the executive branch ofthe Government (including the Executive Office of the President), or anyindependent regulatory agency; and
(2) "record" and any other term used in this section in referenceto information includes any information that would be an agency record subjectto the requirements of this section when maintained by an agency in anyformat, including an electronic format.
(g) The head of each agency shall prepare and make publicly available uponrequest, reference material or a guide for requesting records or informationfrom the agency, subject to the exemptions in subsection (b), including-
(1) an index of all major information systems of the agency;
(2) a description of major information and record locator systems maintainedby the agency; and
(3) a handbook for obtaining various types and categories of public informationfrom the agency pursuant to chapter 35 of title 44, and under this section.
(As amended Pub. L. 104-231, §§3-11, Oct. 2, 1996, 110 Stat. 3049-3054.)
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