UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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:
ANDREW RUBIN, :
: 01 CIV. 2274 (DLC)
Plaintiff, :
: OPINION AND ORDER
-v- :
:
CENTRAL INTELLIGENCE AGENCY, :
:
Defendant. :
:
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APPEARANCES:

For Plaintiff:
Christina M. Frohock
Sharon L. Nelles
125 Broad Street
New York, NY 10004

For Defendant:
Neil S. Binder
Assistant United States Attorney
United States Attorney’s Office
Southern District of New York
100 Church Street, 19th Floor
New York, NY 10007

DENISE COTE, District Judge:

In this action, graduate student Andrew Rubin (“Rubin”)

seeks the disclosure and expedited processing of records and

information regarding two British writers, Stephen Spender and

T.S. Eliot, allegedly withheld by defendant the Central

Intelligence Agency (the “CIA” or the “Agency”) in violation of

the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. The

defendant has moved for summary judgment. For the reasons set

forth below, the CIA’s motion is granted.

BACKGROUND

The following facts are undisputed. Plaintiff Rubin, a

Ph.D. candidate in the Department of English and Comparative

Literature at Columbia University, is writing his doctoral

dissertation on literary and cultural criticism during the first

decades of the Cold War. Part of his project is “an exploration

of how methods of criticism were influenced by [the] American

ideology of the time.” In letters addressed to the Information

and Privacy Coordinator at the CIA, dated April 11 and May 12,

2000, Rubin requested “any and all information or records on or

about” Stephen Spender and T.S. Eliot, respectively. Stephen

Spender and T.S. Eliot were British writers who died in 1995 and

1965, respectively.

In virtually identical letters dated June 28 and June 29,

2000, the CIA denied Rubin’s FOIA requests, stating:

The CIA can neither confirm nor deny the existence

or nonexistence of any CIA records responsive to your
request. The fact of the existence or nonexistence of
records containing such information -- unless it has
been officially acknowledged -- would be classified for
reasons of national security under Sections 1.5(c)
[intelligence sources and methods] and 1.5(d) [foreign
relations] of Executive Order 12958. Further, the
Director of Central Intelligence has the responsibility
and authority to protect such information from
unauthorized disclosure in accordance with Subsection
103(c)(6) of the National Security Act of 1947 and
Section 6 of the CIA Act of 1949.

Accordingly, your request is denied on the basis

of FOIA exemptions (b)(1) and (b)(3). By this action,
we are neither confirming nor denying the existence or
nonexistence of such records. An explanation of cited
FOIA exemptions is enclosed.

Rubin filed administrative appeals of both CIA denials. In

his submissions, Rubin noted that he was specifically interested

in the involvement of Stephen Spender and T.S. Eliot in the

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Congress for Cultural Freedom, “a CIA-funded body which promoted

anti-communist conferences, periodicals, and events worldwide.”

Rubin went on to note that “any intelligence operations in which

[Spender and/or Eliot] may have been involved likely have been

defunct for over a decade.” In letters dated October 16, 2000,

the Executive Secretary of the Agency Release Panel denied both

of Rubin’s appeals pursuant to FOIA exemptions (b)(1) and (b)(3).

Both letters contained the following language:

Pursuant to the authority delegated under paragraph

1900.43 of Chapter XIX, Title 32 of the Code of Federal
Regulations (C.F.R.), the Information Review Officer
has determined that we must neither confirm nor deny
the existence or nonexistence of any records. It has
been determined that such information, that is, whether
or not any responsive records exist, would be
classified for reasons of national security under
Sections 1.5(c) [intelligence sources and methods] and
1.5(d) [foreign relations] of Executive Order 12958.
Further, the fact of the existence or nonexistence of
such documents would relate directly to information
concerning intelligence sources and methods which the
Director of Central Intelligence has the responsibility
to protect from unauthorized disclosure in accordance
with Subsection 103(c)(6) of the National Security Act
of 1947, as amended, and Section 6 of the Central
Intelligence Agency Act of 1949, as amended.

(Emphasis supplied).

Rubin now contends that the CIA has improperly withheld the

fact of the existence or nonexistence of records responsive to

his requests, without offering a sufficient explanation for how

the national security would be compromised by the disclosure of

“historical information on two deceased poets.” In response, the

CIA argues that it properly determined that it could neither

confirm nor deny the existence of records responsive to Rubin’s

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requests, because such information is exempt from disclosure on

the ground of national security and pursuant to a statutory

exemption.

DISCUSSION

Federal courts must conduct de novo review of an agency’s

decision to withhold records requested by a member of the public

under the FOIA. See 5 U.S.C. § 552(a)(4)(B); Halpern v. Fed.

Bureau of Investigation, 181 F.3d 279, 287 (2d Cir. 1999). In a

FOIA case, to prevail on its motion for summary judgment, the CIA

“has the burden of showing that . . . any withheld documents fall

within an exemption to the FOIA.” Carney v. U.S. Dep’t of

Justice, 19 F.3d 807, 812 (2d Cir. 1994). Summary judgment is

proper in a FOIA case where affidavits in support thereof give

“reasonably detailed explanations why any withheld documents fall

within an exemption,” id., and show that the withheld information

“logically falls within the claimed exemption.” Halpern, 181

F.3d at 291 (citation omitted). A governmental agency’s

affidavits are “accorded a presumption of good faith.” Carney,

19 F.3d at 812 (citation omitted). As a result, if the agency’s

submissions are adequate on their face, discovery relating to the

exemptions claimed is unnecessary. To justify any discovery once

the agency has satisfied its burden, the plaintiff must either

show bad faith on the part of the agency by disputing the

agency’s affidavits, or show through “some tangible evidence”

that the claimed exemption should not apply. Carney, 19 F.3d at

812; see also Grand Central Partnership, Inc. v. Cuomo, 166 F.3d

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473, 478 (2d Cir. 1999); Ferguson v. Fed. Bureau of

Investigation, 83 F.3d 41, 43 (2d Cir. 1996).

The FOIA expresses a general philosophy favoring public

scrutiny of government agencies by providing for broad access to

records and other information in the agencies’ possession. See

Cent. Intelligence Agency v. Sims, 471 U.S. 159, 166 (1984);

Halpern, 181 F.3d at 284, 286. Nonetheless, the FOIA provides

nine exemptions from its disclosure requirement. Agency

information falling within the terms of these exemptions need not

be disclosed. Halpern, 181 F.3d at 287. The statutory

exemptions are to be construed narrowly, with any doubts resolved

in favor of disclosure. Id. The CIA bears the burden of

establishing that any exemption from disclosure applies. 5

U.S.C. § 552(a)(4)(B).

In this case, the CIA invokes two FOIA exemptions: (1) the

national security exemption, 5 U.S.C. § 552(b)(1) (“exemption

1"), and (2) the statutory exemption, 5 U.S.C. § 552(b)(3)

(“exemption 3"). It asserts that the very fact of whether it

possesses records responsive to plaintiff’s request is exempt

from disclosure under exemption 1 because it is classified for

reasons of national security pursuant to Executive Order, and

under exemption 3 because it could reveal intelligence sources

and methods which the Director of Central Intelligence has the

statutory responsibility to protect.

Exemption 1, the national security exemption, states that

the FOIA’s requirement of agency disclosure “does not apply to

matters that are . . . (A) specifically authorized under criteria

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established by an Executive order to be kept secret in the

interest of national defense . . . and (B) are in fact properly

classified pursuant to such Executive order.” 5 U.S.C. §

552(b)(1). The CIA argues that the information sought by the

plaintiff is classified pursuant to Executive Order 12,958, which

permits “classification” of information relating to, inter alia,

intelligence activities, intelligence sources or methods, and

foreign relations or foreign activities of the United States.

Exec. Order No. 12,958, 60 Fed. Reg. 19,825 (April 17, 1995).

Section 1.2 of Executive Order 12,958 states that an agency may

classify information that fits into one or more of the Order’s

categories for classification when the appropriate classification

authority “determines that the unauthorized disclosure of the

information reasonably could be expected to result in damage to

national security.” Id. Section 3.7(a) of Executive Order

12,958 further states that “[a]n agency may refuse to confirm or

deny the existence or nonexistence of requested information

whenever the fact of its existence or nonexistence is itself

classified under this order.” Id.

To qualify for exclusion under exemption 3, the CIA must

show that: “(1) the statute invoked qualifies as an exemption 3

withholding statute, and (2) the materials withheld fall within

that statute’s scope.” A. Michael’s Piano, Inc. v. Fed. Trade

Comm’n, 18 F.3d 138, 143 (2d Cir. 1994); see also Sims, 471 U.S.

at 167. The CIA asserts that 50 U.S.C. § 403-3(c)(6), the

codification of the National Security Act of 1947, mandates non-

disclosure of the information requested by the plaintiff, because

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it commands that the Director of Central Intelligence shall

“protect intelligence sources and methods from unauthorized

disclosure.” Section 403-3(c)(6) qualifies as an exemption 3

withholding statute. Sims, 471 U.S. at 167.1 The statute vests

in the Director of Central Intelligence “very broad authority to

protect all sources of intelligence information from disclosure.”

Id. at 168-69.

The Agency has submitted a 19 page declaration by Karen I.

Dyer (“Dyer Declaration”), Chief of the CIA Public Information

Release Division. In brief, the Dyer Declaration explains that

“[a]cknowledging that the Agency has information or has no

information about these two foreign nationals is itself

classified because the answer provides information about the

types of people who may be of foreign intelligence interest to

the Agency.” Dyer notes that Agency intelligence collection may

be compromised if sources are not confident that the CIA “can and

will do everything in its power to prevent the public disclosure

of their cooperation and that their cooperation will remain

forever secret.” Moreover, the confirmation or denial of Agency

possession of records relating to particular foreign nationals

may impact U.S. foreign relations negatively. According to Dyer,

an “official acknowledgment that the CIA maintains information

concerning a covert relationship with a particular foreign

1
Until 1993, the statutory provision now contained in 50
U.S.C. § 403-3(c)(6) was codified at 50 U.S.C. § 403(d)(3), the
provision construed in Sims. The recodification did not affect
the substance nor the relevant language of the statute.

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national could be construed by that foreign government, whether

friend or adversary, as an admission that the CIA has collected

intelligence information on or recruited one of its citizens.”

Dyer notes that this concern is especially salient “where U.S.

allies are concerned.”

Dyer concludes that to neither confirm nor deny the

existence of records responsive to plaintiff’s requests is the

Agency’s inevitable response under the circumstances. To do

otherwise would be effectively to disclose the very fact that

must be protected in this case -- whether the CIA has a current

or past covert interest in a specific individual.

The CIA’s declaration describes the impact upon intelligence

sources and methods that the disclosure of the existence or non-

existence of responsive documents could reasonably be expected to

have. As such, it provides a “reasonably detailed explanation[]

why any withheld documents fall within [the claimed]

exemption[s].” Carney, 19 F.3d at 812. Summary judgment for the

Agency is thus appropriate unless plaintiff is able to show bad

faith on the part of the Agency or that the claimed exemptions do

not apply.

Plaintiff does not make an explicit claim of Agency bad

faith, but cites to Hayden v. Nat’l Sec. Agency, 608 F.2d 1381

(D.C. Cir. 1979), for the proposition that an agency’s affidavit

in response to a FOIA request will not suffice if its

explanations are “conclusory, merely reciting statutory

standards, or if they are too vague or sweeping.” Id. at 1387.

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Explanations similar to those offered by the CIA in this case

have been upheld as sufficient bases for refusing to either

confirm or deny the existence of responsive documents to FOIA

requests. See, e.g., Frugone v. Cent. Intelligence Agency, 169

F.3d 772, 775 (D.C. Cir. 1999) (appellant sought confirmation

that he was once employed by the Agency); Hudson River Sloop

Clearwater, Inc. v. Dep’t of the Navy, 891 F.2d 414, 421 (2d Cir.

1989) (appellant sought information whether Navy planned to

deploy nuclear weapons from ships based in New York Harbor);

Miller v. Casey, 730 F.2d 773, 775 (D.C. Cir. 1984) (appellant

sought information concerning alleged efforts by the United

States to overthrow the Communist government of Albania following

World War II). The CIA must have the ability to neither confirm

nor deny “so that a pattern of denial does not give rise to an

inference that a refusal to confirm is in fact a confirmation.”

Aranha v. CIA, No. 99 Civ. 8644 (JSM), 2000 WL 1505988, at *1

(S.D.N.Y. Oct. 6, 2000). The Supreme Court has observed that

even “the mere explanation of why information must be withheld

can convey valuable information to a foreign intelligence

agency.” Sims, 471 U.S. at 179; see also Doherty v. U.S. Dep’t

of Justice, 775 F.2d 49, 52 (2d Cir. 1985).

Rubin points out that T.S. Eliot has been dead for three

decades and Stephen Spender has been dead for six years, and

argues that the existence of responsive documents could not be

relevant to current national security concerns. In support, he

principally relies on Times Newspapers of Great Britain, Inc. v.

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Cent. Intelligence Agency, 539 F. Supp. 678 (S.D.N.Y. 1982). In

Times Newspapers, the Agency confirmed the existence of documents

but withheld them. The Court ordered in camera examination of

the withheld documents, noting that “[m]ost of the documents

withheld here are over twenty years old.” Id. at 683. In this

case, however, the CIA has chosen to neither confirm nor deny the

existence of responsive documents, and has offered reasonable

explanations for why the disclosure of such information could

interfere with Agency efforts to collect human intelligence in

the present day, including its “compelling interest” in

protecting “the appearance of confidentiality so essential to the

effective operation of our foreign intelligence service.” Sims,

471 U.S. at 175 (citation omitted). Courts have generally

rejected the contention that the mere age of intelligence

information rules out its exemption. See, e.g., Halpern, 181

F.3d at 294; Maynard v. Cent. Intelligence Agency, 986 F.2d 547,

555 n.6 (1st Cir. 1993); Fitzgibbon v. Cent. Intelligence Agency,

911 F.2d 755, 763-64 (D.C. Cir. 1990).

Finally, Rubin argues that the CIA is improperly withholding

the requested information in light of the fact that information

linking the CIA to both Spender and Eliot has already been

published. He cites a book by Francis Stoner Saunders, entitled

The Cultural Cold War, which chronicles the CIA’s covert funding

of artists and writers to promote democracy abroad. There is an

important distinction between official and unofficial

disclosures. See, e.g., Halpern, 181 F.3d at 294; Frugone, 169

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F.3d at 774; Fitzgibbon, 911 F.2d at 765; Hudson River, 891 F.2d

at 421-22; Afshar v. Dep’t of State, 702 F.2d 1125, 1130-1131,

1133 (D.C. Cir. 1983). An unofficial disclosure of a

relationship between the CIA and either Spender or Eliot does not

constitute a waiver by the Agency of confidentiality, nor does it

undermine the legitimacy of the Agency’s explanation for choosing

to neither confirm nor deny the existence of records responsive

to Rubin’s request.

CONCLUSION

The information requested by the plaintiff is exempt from

FOIA disclosure because the Agency has shown it is reasonably

within the scope of exemptions 1 and 3. The defendant’s motion

for summary judgment is granted. The Clerk of Court shall enter

judgment for the defendant and close the case.

SO ORDERED:

Dated: New York, New York

November 30, 2001
__________________________________
DENISE COTE
United States District Judge

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